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United States District Court, S.D. New York

February 4, 2004.


The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

Plaintiff Joan Pastorello brought an action against certain hospital medical. administrative, and security staff associated with the Bronx Municipal Hospital Center ("Jacobi"), the New York City Health and Hospitals Corp. ("HHC"), and the City of New York for violations of her rights under the Fourth, Fifth, Sixth, Eight and Fourteenth Amendments of the United States Constitution Plaintiff also argued that defendants failed to comply with state law procedural due process protections.

For purposes of both discovery and trial, the Court bifurcated plaintiff's claims against the individual defendants from her Monell claims against the municipal defendants The first trial began on October 20, 2003 Plaintiff asserted claims against five individuals three physicians, Kathleen Hunzicker, Shepard Greene, and Dorothea Schuetz-Mueller; a nurse. Page 2 Carolyn Griffiths; and Janet Lannigan, a hospital administrator.*fn1 The jury returned a verdict in favor of all defendants, rejecting plaintiff's claims in their entirety.

  Plaintiff now moves pursuant to Rule 50(b), Fed.R.Civ.P., for a judgment as a matter of law against the three physician defendants, Hunzicker, Greene, and Schuetz-Mueller. For reasons that follow, plaintiff's motion is denied.


  The facts of this case are stated in prior opinions reported at 2003 WL 1740606 (S.D.N.Y. Apr. 1, 2003) and 2003 WL 22118972 (S.D.N.Y. Sept. 11, 2003), familiarity with which is assumed. The individual defendants subject to plaintiff's motion for a judgment as a matter of law were all residents in training at Jacobi Hospital when the events related to plaintiff's case took place. The facts with relation to the individual defendants implicated in this motion are stated infra.

 A. Kathleen Hunzicker

  Dr. Hunzicker was a first year resident in training with the plastic surgery department at Jacobi Hospital at the time these incidents took place. On the morning of Friday, February 26, 1993, at 10:00 AM, Hunzicker examined plaintiff while she was still in Jacobi's Emergency Room ("ER"). Upon examination, Hunzicker ordered the admission of plaintiff to Ward Two South, a plastic surgery unit, for treatment.

  By 1:30 PM that same afternoon, plaintiff still had not been transferred to the plastic surgery unit While she was waiting for admission, plaintiff expressed to ER personnel her desire to leave the hospital. At that point, Dr. Oscar Rodriguez, an attending psychiatrist on the Jacobi staff, placed an "on hold" order to retain plaintiff in the ER Rodriguez's stated reasons Page 3 for doing so, according to the ER records in evidence, were that plaintiff appeared agitated and expressed her desire to leave. According to the testimony of Dr. Scott Rogge, at the pertinent times a unit chief for one of Jacobi's psychiatric wards, an "on hold" order is a standard practice enabling physicians to detain patients who are agitated and at risk of harm if they leave the hospital. Plaintiff contends that prior to placing her "on hold," New York Mental Health Law ("M.H.L") § 9.39 should have been triggered.*fn2 That provision accords hospital patients certain procedural protections prior to retaining those patients in the hospital against their expressed will to the contrary. See Part II. Standards of Law. Section B. Due Process Under New York State Regulations, infra.

 B. Shepard Greene

  When Hunzicker examined plaintiff again on the morning of Saturday, February 27, this time in the plastic surgery unit, plaintiff again expressed a desire to leave the hospital Plaintiff said she wanted to go to Lenox Hill Hospital, where she had been previously treated Hunzicker then attempted to contact plaintiff's physician at Lenox Hill Hospital, but could not gel in touch with that physician in order to arrange a transfer In accordance with hospital policy providing that all patients who seek to leave the hospital against medical advice be seen by a psychiatrist, Hunzicker ordered a series of examinations by consultant physicians on call, including one by Dr. Shepard Greene, a fourth year psychiatric resident.*fn3 Greene's diagnosis was that plaintiff Page 4 exhibited signs of paranoia and delusions, and was not competent to leave the hospital against medical advice. Green recommended that plaintiff be further evaluated for possible treatment.

 C. Dorothea Schuetz-Mueller

  Greene's recommendation was implemented by Dr. Schuetz-Mueller, a third-year psychiatric resident at Jacobi Hospital. On Sunday, February 28, 1993, Schuetz-Mueller was called to the plastic surgery unit to evaluate plaintiff for discharge. According to Schuetz-Mueller's testimony, while she was examining plaintiff, plaintiff acted with hostility towards her, grabbing her necklace and causing it to break. At the conclusion of her examination, Schuetz-Mueller recommended initiating a M.H.L § 9.39 proceeding in order to retain plaintiff in the psychiatric ward. Schuetz-Mueller presented her case to Dr. Brown, the psychiatric attending on call in the Psychiatric ER at the time, and Brown signed the § 9 39 form formally initiating the proceeding.


 A. Motion to Renew Plaintiff's Motion for Judgment as a Matter of Law

  The standards governing a Rule 50(b) motion have been outlined in detail in Yurman Design Inc. v. PAJ Inc., 262 F.3d 101 (2d Cir. 2001). In that case, the Second Circuit held that a Rule 50(b) motion


may not be granted unless the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached. This standard will be met only if there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against the moving party
Id. at 108 (citations and internal quotation marks omitted).

  Furthermore, in ruling on a Rule 50(b) motion, the trial court is required to Page 5 consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.

 Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001) (citations omitted).

 B. Due Process Under New York State Regulations

  Plaintiff bases her Rule 50(b) motion principally upon the premise that each of the three physician defendants "failed to follow the procedures mandated by Mental Health Law § 9.39," and accordingly, as a matter of law, each defendant "violated plaintiff's procedural due process rights under the Fourteenth Amendment to the Constitution." Plaintiff's Brief at 17. This contention requires an analysis of M.H.L. § 9.39.

  M.H.L § 9.39 reads, in pertinent part, as follows


The director of any hospital maintaining adequate staff and facilities for the observation, examination, care, and treatment of persons alleged to be mentally ill and approved by the commissioner to receive and retain patients pursuant to this section may receive and retain therein as a patient for a period of fifteen days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others.
The director shall admit such person pursuant to the provisions of this section only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements of this section Such person shall not be retained for a period of more than forty-eight hours unless within such period such finding is confirmed after examination by another physician who shall be a member of the psychiatric staff of the hospital.
"Likely to result in serious harm" is defined as follows:
1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that (the patient) is dangerous to himself, or
2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm
Id. Page 6

  The Second Circuit addressed the elements of § 9.39 in Rodriguez v. The City of New York, 72 F.3d 1051 (2d Cir. 1995). The court noted that federal due process "demand[s] that the decision to order an involuntary emergency commitment be made in accordance with a standard that promises some reasonable degree of accuracy." Id. at 1062. The court went on to state that "implicit in § 9.39 . . . is the premise that the decision will be made in accordance with the standards of the medical profession." Id. at 1063. That is, though "committing physicians are not expected to be omniscient, the statute implicitly requires that their judgment . . . be exercised on the basis of substantive and procedural criteria that are not substantially below the standards generally accepted in the medical community. Due process requires no less." Id. Finally, the court held that while the "interpretation of § 9.39 itself is of course a question of law for the court . . . the question of what the generally accepted standards were is a question of fact." Id.

  Furthermore, § 1.03(10) of New York's Mental Hygiene Law provides, for purposes of § 9.39 analysis, that the noun "hospital" is defined as follows:

"Hospital" means the in-patient services of a psychiatric center under the jurisdiction of the office of mental health or other psychiatric in-patient facility in the department, a psychiatric in-patient facility maintained by a political subdivision of the state for the care or treatment of the mentally ill, a ward, wing, unit, or other part of a hospital, as defined in article twenty-eight of the public health law, operated as a part of such hospital for the purpose of providing services for the mentally ill pursuant to an operating certificate issued by the commissioner of mental health, a comprehensive psychiatric emergency program which has been issued an operating certificate by such commissioner, or other facility providing in-patient care or treatment of the mentally ill which has been issued an operating certificate by such commissioner
  Finally, 10 NYCRR § 405.9(b)(13), a regulation of New York's Department of Health, permits a physician to temporarily detain a mentally disturbed patient for her own protection or the protection of others pending a prompt legal determination of her rights That provision reads Page 7 as follows:


No patient 18 years of age or older shall be detained in a hospital against his will, nor shall a minor be detained against the will of his parent or legal guardian, except as authorized by law. This provision shall not be construed to preclude or prohibit attempts to persuade a patient to remain at the hospital in his/her own interest, nor the temporary detention of a mentally disturbed patient for the protection of himself/herself or others pending the prompt determination of his/her rights.
  Plaintiff makes two arguments why the Court should rule in her favor as a matter of law under Rule 50(b). First, plaintiff argues that the procedural protections offered by M.H.L § 9.39 should have been initiated on several occasions prior to Sunday, February 28, 1993, and that where § 9.39 proceedings were initiated, they were not followed properly. Second, plaintiff argues that quite apart from § 9.39 considerations, individual defendants failed to act in accordance with the standards set by the medical community shall consider each of these arguments in turn.

 A. § 9.39 Proceedings

  Plaintiff argues that each individual physician defendant — namely Hunzicker, Greene, and Schuetz-Mueller failed to follow properly the provisions mandated by M.H.L § 9.39.

  1. Dr. Hunzicker

  Plaintiff first argues that a § 9.39 proceeding should have been initiated on the afternoon of Friday, February 26th, when Dr. Rodriguez placed plaintiff "on hold" in the hospital E:R. Defendant responds that Rodriguez's action was a lawful temporary detainment of plaintiff under the guidelines of 10 NYCRR § 405.9(b)(13). But even assuming, without deciding, that Rodriguez (who was not named as a defendant in the action) failed to meet his obligations as an attending physician when he failed to initiate a § 9.39 proceeding upon placing plaintiff "on hold," the responsibility for such wrongdoing would fall on the shoulders of Rodriguez, not Page 8 Hunzicker. Not only is it clear that as a resident in training, Hunzicker did not have the authority to initiate § 9.39 proceedings, it is Hunzicker's uncontested testimony at trial that she was not even aware that any "on hold" order had been put into effect. Hunzicker cannot be held liable for Rodriguez's decision to place plaintiff "on hold."

  Plaintiff also argues that once the "on hold" order was put into effect, the order was never followed up by an evaluation of plaintiff by a staff physician. Even if this is so, it is demonstrably clear that Hunzicker was not a "staff physician at the time; merely a resident in training. If Hunzicker was neglectful in failing to follow up with plaintiff after ordering her admission in Ward Two South, her inaction must be judged against the generally accepted standards of the medical community, and does not constitute a breach of § 9 39

  2. Dr. Greene

  Plaintiff also contends that a § 9 39 proceeding should have initiated on the morning of Saturday, February 27, after Greene's examination of plaintiff led to her detention in Jacob's plastic surgery unit*fn4 Greene determined that plaintiff was not competent to leave the hospital against medical advice, and recommended further evaluation to assess the necessity of admitting plaintiff in the psychiatric unit

  It is somewhat unclear from the record whether Greene alone made his diagnosis, or whether his conclusions were made in conjunction with Hunzicker In any event, even after Greene's assessment, plaintiff was still not transferred from the plastic surgery unit to the psychiatric unit of Jacobi Furthermore, Greene recommended that plaintiff be followed up after Page 9 she was medically stable to assess whether she needed to be admitted to the psychiatric unit for observation. Under these circumstances, plaintiff has failed to establish, under the heightened burden of Fed. R. Civ. P. 50(b), that Greene's actions violated § 405.9(b)(13), which requires that the temporary detention of a patient be followed by the "prompt determination of his/her rights." These considerations lead to the conclusion that Greene's recommendation led to a lawful temporary detention of plaintiff under § 405.9(b)(13), and did not require the initiation of § 9.39 proceedings.

  Plaintiff argues that Greene's reliance on § 405.9(b)(13) is misplaced, insofar as "where the rules or regulations of an administrative agency are in conflict with the provisions of the statute or inconsistent with its design and purpose, they are held to be invalid." Connolly v. O'Malley, 17 A.D.2d 411, 417, 234 N.Y.S.3d 889, 895 (N.Y. App. Div., 1st Dep't 1962).

  While I accept that general principle, it does not assist the plaintiff at bar. § 405.9(b)(13) provides for a temporary detention of a mentally disturbed patient for the protection of herself and others, pending the prompt determination of her rights. "Temporary" is a subjective concept, subject to varying interpretations. But I am not persuaded that this regulation is necessarily in conflict with § 9.39, which authorizes hospitals to detain patients against their will for a period of up to fifteen days. It is logical that an involuntary detention of a mentally ill patient for up to fifteen days necessitates procedural safeguards greater than the temporary detention of that same patient (in a non-psychiatric ward) that could be for as little as a few hours. I do not find that the temporary detention provision of § 405.9(b)(13) is in any way in conflict with or inconsistent with the design and purpose of M.H.L. § 9.39.

  It is also notable that Greene's specific recommendation was that plaintiff be evaluated to assess the necessity of admitting her into the psychiatric unit. fie does not recommend Page 10 immediate transfer to the unit based on his own prognosis. As M.H.L. § 1.03(10) makes clear, a § 9.39 procedure must be initiated when a physician seeks to admit a patient to the psychiatric ward of a hospital. Greene did not take that action.

  Plaintiff questions the constitutional permissibility of distinguishing between a medical and a psychiatric unit of a hospital, as § 1.03(10) purports to do. Plaintiff contends that if § 9.39 is only to be triggered in the context of a hospital's psychiatric ward, then "defendants must admit that the lack of any statutory safeguards, constitutes, a fortiori, a violation of Joan Pastorello's basic liberty interests." Plaintiff's Reply Mem. at 3 (emphasis added).

  In order to accept plaintiff's argument, one must assume that § 9.39 is the only procedural safeguard in all of the public health regulations of the State of New York that prevents the involuntary detention of a patient in a hospital unit, medical or psychiatric. If this were true, then plaintiff could argue that § 9.39 must be enforced, regardless of whether a patient is being involuntarily confined to a psychiatric or non-psychiatric hospital unit. However, it has already been demonstrated that this is not the case. 10 N.Y.C.R.R. § 405.9(b)(13) is one example of an additional procedural safeguard that exists to protect a patient's rights. Thus, § 9 39 need not be triggered m even' situation of involuntary detention in a hospital

  3. Dr. Schuetz-Mueller

  Finally, plaintiff argues that the § 9.39 proceeding initiated on Sunday, February 28th was improper. Specifically, plaintiff contends that the § 9.39 form that was signed constituted a false document, because the physician who signed the form was not the same physician who examined the plaintiff.

  It is undisputed that Brown signed the § 9.39 form that began the process of involuntarily committing plaintiff to Jacobi's psychiatric ward What is disputed is whether or not Brown Page 11 actually examined plaintiff prior to signing the § 9.39 involuntary commitment form. The § 9.39 form which Brown signed states the following above her signature:

I have examined the above-named patient prior to admission and confirm: that the patient has a mental illness for which immediate observation, care and treatment in a mental hospital is appropriate, and which is likely to result in serious harm to him/herself or others; and that hospitalization can reasonably be expected to improve the patient's condition or at least prevent the patient's deterioration.
  Plaintiff alleges that because the § 9.39 form was signed by Brown, when in fact Brown did not examine plaintiff, it represents a false document resulting in a violation of the § 9.39 requirements.

  In response, defendant contests plaintiff's allegation that Brown did not examine plaintiff. In her deposition, Brown testified by deposition (read at trial) that she could not recall whether or not she examined plaintiff prior to signing the form. Second, defendant argues that Brown's conduct was not a violation of § 9.39, but was proper and authorized in accordance with 14 NYCRR § 580.7, which states in relevant part


(1) [T]he unit shall not permit physicians in training to perform a service for which a license is required by the State of New York except as part of an approved training program and unless authorized on a temporary certificate to practice medicine at the hospital and they are at the time under the direct control and supervision of a currently registered and licensed physician
  Finally, defendant contends that there is no basis as a matter of law to attribute Brown's conduct to any of the defendants in this case.

  It is not necessary to decide whether Brown examined plaintiff prior to signing the form, or whether her conduct was in accordance with 14 NYCRR § 580.7 Brown is not a party to this action. She signed the form under her own volition. Schuetz-Mueller cannot be held liable for what Brown did or failed to do.

  While plaintiff concedes that it was Brown who signed the admission form, plaintiff Page 12 argues that "it was Schuetz-Mueller who encouraged [her] to do so." Plaintiff's Reply Mem. at 8. That she may have "encouraged" Brown to sign the form is insufficient to establish legal causation in this case.

  Plaintiff's reliance on Demarco v. Sadiker, 897 F. Supp. 693 (E.D.N.Y., 1995) is unwarranted.*fn5 In that case, the court noted that the general spirit of statutory regulation M.H.L. § 9.37(a)(2) — a provision that for these present purposes is analogous to § 9.39 — mandates the requirement that "the confirmation of an initial opinion of the director of community services must be based upon a personal examination of the patient." Id. at 702. The statute at issue in that case stated, `The need for immediate hospitalization shall be confirmed by a staff physician of the hospital prior to admission." Id. at 695 n.1 (quoting M.H.L. § 9.37(a)(2) (McKinney 1983) (emphasis added)). The court held that there was a genuine issue of material fact whether one of the defendants, staff physician Edgar Paiz, failed to provide plaintiff with his procedural due process rights, insofar as Paiz did not personally examine plaintiff prior to confirming the need for hospitalization. Id. at 702-04.

  If Demarco were to have any weight in this case at all, it is clear that it would buttress a case against Brown, holding her liable for her alleged negligence to her duties It is Brown who was allegedly negligent in signing the § 9.39 admission form without personally examining plaintiff But Brown is not a party to this case. As stated previously, Schuetz-Mueller cannot be held liable for the errors, if any, committed by Brown*fn6 Page 13

 B. Standards of the Community

  In addition to contending that defendants1 actions were in violation of the requirements of § 9.39, plaintiff argues more generally that defendants1 actions fell outside the standards generally accepted in the medical community. Plaintiff urged that theory upon the jury, which rejected it. Because the jury found that the defendants' actions did not fall outside those bounds, I can disregard its verdict only if I conclude that there is such a complete absence of evidence supporting the verdict that its findings could only have been the result of sheer surmise and conjecture, or that there is such an overwhelming amount of evidence in favor of plaintiff that reasonable and fair minded people could not arrive at a verdict unfavorable to plaintiff. See Yurman, 2642 F.3d at 108. Based on the evidence, I cannot come to that conclusion. Page 14


  Plaintiff's Rule 50(b) motion for judgment as a matter of law is denied.

  Counsel are directed to attend a status conference on March 1, 2004 at 4:30 p.m. in Room 17C, 500 Pearl Street. That conference will be cancelled if, prior to that date, counsel for plaintiff advise the Corporation Counsel and the Court in writing that plaintiff does not intend to pursue the case further.


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