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February 20, 2004.


The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge


This case involves an involuntary commitment to Bellevue Hospital. The case was assigned to me for all purposes on August 20, 2003. I presided at the jury trial on November 3-6, 2003. The jury returned a verdict of $1,000,001 in compensatory damages.

On December 19, defense counsel served a timely motion for judgment as a matter of law, or a new trial on all issues, or at least a "substantial" remittitur.

  On January 23, 2004, plaintiff's counsel served an opposing memorandum and a declaration which annexed the trial transcript ("Tr.").

  On February 14, 2004, defense counsel served a reply memorandum.

  During the trial, it was undisputed that plaintiff had a serious mental illness. The issue was whether he was dangerous. Plaintiff Robert Marion was born in 1941 in North Carolina and has lived in New York City since 1970, mainly in the East Village. In 1985 a car hit his bicycle; while he was recuperating from injuries to his head, neck and back, he "started seeing the world, reality more and more, how the corporations were fleecing the world." (Tr. 221.) Since then, he has had no regular employment. He has been receiving Social Security disability payments since about 1993. (Tr. 221-23; Exh. 1 p. 39; Exh. 2 p. 16.) In 1995 and 1996, he received prescriptions for two anti-psychotic medications, Mellaril and Page 2 Thorazine. (Tr. 189-92.) In June 1996, the Stuyvesant Polyclinic discharged him from its outpatient mental health program.

. . .[This discharge was] due to the impression by the doctors [at Stuyvesant] that he was no longer benefitting from his [outpatient] treatment there. A question was raised with regard to Mr. Marion's treatment compliance, although his treating psychiatrist did note that he was taking at least some of the medication dosages. It appears that they considered his preoccupation with political causes the primary obstacle to successful treatment and discharged him without recommending any other alternatives.
(Tr. 193.) Plaintiff's expert psychiatrist, Dr. Peter Stastny, first examined him in February 2001. Dr. Stastny reached a preliminary diagnosis of schizo-typal personality disorder. In our case the crucial date is December 23, 1998, when Marion was involuntarily committed to the psychiatric ward of Bellevue Hospital. Although Dr. Stastny was not at Bellevue, he reviewed Bellevue's records and testified:
For that particular day, I believe the most likely diagnosis would have been adjustment disorder with mixed emotional features. . . .
(Tr. 61.)

  Marion's six-day stay in Bellevue is the only time he has ever been an inpatient in a mental hospital. Except during those six days, there is no evidence that anyone ever found him to be dangerous to himself or to others, or that anyone ever complained that he had made any threats of violence or committed any acts of violence. He has lived in New York City for the past 33 of his 62 years. He is of medium height and weight.

  During the month prior to December 23, 1998, Marion had visited Bellevue's medical department four times as a diabetes patient who needed some diabetes-related surgery. (Tr. 75.) He believed that December 23 was the date for his surgery. That morning, when he came to Bellevue, the reception staff either told him that he was mistaken, or told him that Bellevue had postponed the surgery date. (Tr. 223-24.) In any event, he became angry. Instead of escorting him to the sidewalk, the staff escorted him within the building to the Psychiatric Emergency Room (also known as CPEP, for Comprehensive Psychiatric Page 3 Emergency Program, Tr. 280, 288).

  At trial, the parties submitted a written stipulation concerning the legal requirements for an involuntary commitment, (Exh. 3, read by the jurors at Tr. 262.) This stipulation included the following:
3. . . . New York Mental Hygiene Law § 9.39 authorizes [involuntary] admission only when the mental illness . . . is likely to result in serious harm to the person himself or to others.
4. Under New York Mental Hygiene Law § 9.39 "likely to result in serious harm" means (1) a substantial risk of physical harm to oneself as manifested by threats of, or attempts at, suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or (2) a substantial threat 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.
* * *
6. If a hospital admits a person [involuntarily], it may not hold the person for more than forty-eight hours unless the finding by the first physician that the plaintiff met the criteria of the statute is confirmed by another physician. . . .
  The first finding was signed by defendant psychiatrist Robert T. LaFargue at 12:45 p.m. on December 23. (Exh. 1, p. 79.) The confirming finding was signed by defendant psychiatrist Robert Nadrich at 3:45 p.m. on December 24. (Exh. 1, p. 80.) The jury had sufficient evidence to find, as it did, that each of these men "acted in a manner that was substantially below the standards generally accepted in the medical community when he caused Mr. Marion to remain in Bellevue Hospital against Mr. Marion's will." The intake records repeatedly recorded that Marion showed no evidence of suicidal ideation or aggressive ideation. Only Dr. Nadrich wrote anything about dangerousness, and what he wrote was speculative and unimpressive. Dr. Stastny testified that both men failed to ask questions designed to discern whether Marion had any intention or likelihood for causing physical harm. (Tr. 109-20.) Page 4

  At trial, the only witnesses were Dr. Stastny, Marion, Dr. LaFargue and Dr. Nadrich. The jury heard excerpts from the deposition of psychiatric nurse Jessie Emmanuel, who was the first person in the Psychiatric Emergency Room to interview Marion. (Tr. 288.) She testified that "at the time that I had seen him, he was not agitated. . . . not exhibiting any aggression," although he was "pointing his fingers at staff telling us we are all `slaves.'" (Tr. 267, 277, Exh. 1 p. 24.)

  At 11:50 a.m. on December 23, Marion was interviewed by a medical student named Danny Sperling. He wrote:
. . . The pt. repeatedly states that he needs 100 million dollars from the government so that he could lead a better life. The pt. reports that the government is involved in a plot of "povercide" to kill all of the homeless by not giving them money. The pt. states he believes he can solve all of these world problems. The pt. currently denies suicidal ideation and denies homicidal ideation as well. Pt. believes that the police are evil and involved in the government conspiracy to kill the poor. The pt. currently has flight of ideas and extremely pressured speech. ["Pressured speech" is a rapid monologue that is hard to interrupt; Tr. 292.]
Pt. denies a past psychiatric hospitalization, denies past suicidal attempts and denies any past acts of violence.
The pt. reports suffering head trauma in a bicycle-car accident 8 yrs. [ago].
(Exh. 1 p. 27.) Dr. LaFargue presumably read this a few minutes later. He was the attending physician in the Psychiatric Emergency Room, and he was in a central area with glass windows so that he was able to see all of the patients in the Emergency Room. (Tr. 303.) At trial, he pointed to Sperling's notes that Marion was complaining about "the government conspiracy to kill the poor." Dr. LaFargue told the jury: "Whenever a psychotic person is starting to say their thought content is about killing and conspiracy, that raises more red flags and makes me more concerned that this patient is indeed very dangerous." (Tr. 294.)
  Dr. LaFargue testified: "I don't recall what happened as far as — how many minutes I spent with Mr. Marion. But any Page 5 patient who is agitated like i[t']s described that Mr. Marion is, we're not going to take into a room and have — and sit down with that patient. Because that patient's inappropriate for that type of dialogue and can be dangerous. . . . I don't recall the case at this point. But I'm sure [I] observed Mr. Marion." (Tr. 302-03.) He acknowledged that Marion had not hit anyone. (Tr. 304.) His attorney then asked:
Q: Can you explain for the jury how you still came to the determination that he was dangerous?
A: When his behavior continues to escalate, when he continued to escalate coming from the medical emergency room to the psychiatric emergency room, and it didn't — didn't dissipate with verbal intervention or even when he's put behind a locked door, he continues to escalate, then that's dangerous.
(Tr. 305.)
Q: Doctor, if someone said [as Dr. Stastny did] that it was a grave omission that you did not ask the plaintiff if he intended to cause harm, what would your response be?
A: . . .[T]he patient is exhibiting behavior that's consistent with danger, and so, his body language is telling me the answer to that question, which is he's dangerous.
(Tr. 330.) The jury could rationally find that there was no clear documentation or testimony about such "`body language," and that Marion, albeit psychotic, was not dangerous. The jury could rationally choose to agree with plaintiff's expert that finger-pointing was not a threat. (Tr. 100.) Moreover, the jury could rationally find that Dr. LaFargue, while sincerely convinced as to what would benefit Marion, did not follow the stipulated legal requirement that there must be "a substantial threat 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." (Exh. 3, ¶ 4, emphasis added.) On cross examination, Dr. LaFargue testified:

  Q: Would you agree that if[,] even if there is a small risk of harm, you should hospitalize a person because you cannot take Page 6 a chance?

  A: Yes. That's the Hippocratic oath.

 (Tr. 344, emphasis added.)

  Dr. LaFargue ordered that the staff medicate Marion with a combination of Haldol and Ativan, to be injected intramuscularly ("IM") if he refused to take it orally (per os, "PO"). (Tr. 322-24.) Nurse Emmanuel wrote:
12/23/98 12pm Pt. became increasingly anxious [with positive] delusions, not following directions at this time, talking rapidly, he is offered Ativan 3 mg PO and Haldol 5mg PO, pt. refused — He is given Haldol 5mg IM and Ativan 2 mg IM and placed on a stretcher with waist support.
(Exh. 1 p. 32.) This medication quickly causes the patient to go to sleep for a period of time. (Tr. 385.)

  At about the same time, Sperling filled out a one-page form entitled "Comprehensive Assessment Form, Initial Treatment Plan." (Exh. 1 p. 33.) Where the form asked for "Rationale for Admission," Sperling wrote, ". . . active mania, flight of ideas and pressured speech, with grandiose ideas, with active psychosis." Where the form asked for "Discharge Criteria," he wrote, "When pt's mania is resolved and mood is stabilized." He and Dr. LaFargue both signed this form at 12:15 p.m.

  Sperling also filled out the first page of the State of New York Office of Mental Health form OMH 474 entitled "Emergency Admission Section 9.39 Mental Hygiene Law." (Exh. 1 p. 79.) The first page (which can result in a involuntary commitment for up to 48 hours) does not specifically ask for details to support a finding of dangerousness. It asks for "Circumstances which led to the person being brought to this hospital," and Sperling wrote: "Pt. came to this hospital for a DM [diabetes mellitus] checkup and was brought to CPEP for psychotic behavior. Pt. is currently actively manic and agitated." In the last part of the first page, the form states:


  In the box under this statement, both Sperling and Dr. LaFargue placed their signature at 12:45 p.m. Dr. LaFargue acknowledged that the initial commitment was his responsibility, since Sperling ...

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