United States District Court, S.D. New York
February 20, 2004.
ROBERT LEE MARION, Plaintiff, -against- ROBERT T. LaFARGUE, M.D., personally, ROBERT NADRICH, M.D., personally, and THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendants
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
OPINION AND ORDER
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
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,
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
(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. . . .
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
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
* * *
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.)
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.
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
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.
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
(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.
Q: Would you agree that if[,] even if there is a
small risk of harm, you should hospitalize a person
because you cannot take
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:
I HAVE EXAMINED THE ABOVE-NAMED PERSON PRIOR TO
ADMISSION AND FIND THERE IS REASONABLE CAUSE TO
BELIEVE THAT THE PERSON 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 HIMSELF OR
HERSELF OR OTHERS.
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 was a medical student
and not a licensed physician.
The second page of the form OMH 474 had to be filled out by a different
staff psychiatrist. This responsibility was undertaken by the other
individual defendant, Dr. Nadrich, some 27 hours later. Dr. Nadrich
conceded that he discontinued his interview with Marion early, after only
5 to 10 minutes, or maybe 10 to 15 minutes. (Tr. 400-01.)
In the commitment certificate, Dr. Nadrich wrote:
He was initially relatively calm and cogent in my
interview but he became more and more manic
psychotic with paranoia, as my interview progressed.
He is appearing during the interview to be responding
to internal stimuli, is disorganized and illogical at
times and is grandiose, saying that he will be in
charge of the new world order.
The form then asks: "Does the patient show a tendency to cause serious
harm to him/herself? ___ Yes ___ No to others? ___ Yes ___ No If yes,
explain:" Dr. Nadrich did not mark Yes or No; his explanation said
nothing about harm to others, and spoke only about a possible harm to
He can get into situations that could easily
provoke others and get [himself] hurt. He also has
grossly impaired judgment now.
(Exh. 1 p. 80.) A rational jury could find that this explanation
was flimsy and speculative. Dr. Nadrich (or another of the psychiatrists
at Bellevue) could have held another interview with Marion at any time
between Hour 27 and Hour 48, but this was not done. (Dr. Nadrich did
observe each patient, including Marion, several times a day, as the"
doctor walked around the 18th Floor; Tr. 442.) At 3:45 p.m. on December
24, Dr. Nadrich signed, "I hereby confirm that there is reasonable cause
to believe that the patient has a mental illness . . . which is likely
to result in serious harm to himself or herself or others." (Exh. 1 p.
At the trial, Dr. Nadrich claimed, for the first time, something that
he had not mentioned in his various hospital entries or in his deposition
he claimed that he felt physically threatened during his interview with
Marion, and that Marion practically pushed the table at him with his
body. (Tr. 397, 400, 440, 442-44.) He acknowledged that he "didn't put
that down" in his notes. (Tr. 403.) In summation, plaintiff's counsel
argued that this belated claim of danger was a pretext, and that Dr.
Nadrich was simply convinced that Marion was mentally ill and needed
hospitalization. (Tr. 530.)
On Monday December 28, Dr. Nadrich wrote in Marion's chart: "I fear
that if he is discharged, the pressured thoughts will continue and
possibly turn hostile if his delusions are refuted. He needs continued
treatment in this facility at this time." (Tr. 417; Exh. 1 p. 54.)
Every Tuesday, a New York State Supreme Court Justice came to the 19th
Floor Courtroom at Bellevue. (Tr. 420.) On Tuesday December 29, Justice
William F. McCooe heard brief testimony from Dr. Nadrich and from Marion,
who had been receiving Depakote for six days, the amount of time Depakote
normally takes to calm a manic patient. (Tr. 322.) Justice McCooe ordered
Bellevue to release Marion. (The transcript of the hearing was Exh. 2.)
The defendants now argue that they are entitled to judgment as a matter
of law because the chart notes of some other psychiatrists allegedly show
that "they all concurred with the assessments made by defendants LaFargue
and Nadrich." (Def. Mem. p. 4.) Those notes were read to the jury at Tr.
408-15. At best, those notes suggest concurrence with the finding of
mental illness. None of them addresses the issue of dangerousness.
Morning team meetings were held on December 24, 28 and 29. (Tr. 415-16.)
Apparently no one spoke up and argued in favor of releasing Marion, but
this hardly required the jury to absolve Dr. LaFargue and Dr. Nadrich of
responsibility for the involuntary commitment. Nor did it require the
jury to reject Dr. Stastny's opinions.
For all the reasons stated above, I deny defendants' motion for
judgment as a matter of law. I find no seriously erroneous result or
miscarriage of justice requiring a new trial on liability, and therefore
I deny the alternative motion for that relief. I turn now to the motion
attacking the damages as excessive.
At Tr. 312-13, I granted the defendants' motion to dismiss the claims
for punitive damages. By agreement (Tr. 354-56), I
waited until after the jury's verdict on liability before instructing
them on damages and giving them a verdict sheet on damages. (Tr. 500-01,
591-93.) Neither attorney chose to discuss damages in summation. Defense
counsel did not request me to instruct that compensatory damages should
not include punishment or deterrence, and I did not do so at Tr. 591-93.
In hindsight, I think this omission was a mistake. As will be seen, I
tried to cure this omission, but I was too late.
After deliberating on damages for approximately 24 minutes, the jury
sent out a note asking: "Can the judge overrule our award amount if he
thinks it's too high?" (Tr. 594.) I talked with the attorneys at some
length about my proposed answer. (Tr. 594-98.) Unbeknownst to us, the
jury decided, during this interval, that the jury had the responsibility
to set a just award regardless of whether the judge had the power to
reduce it; they were about to hand the marshal their verdict sheet on
damages (and to tell him they withdrew their question) when I called them
out and delivered my answer. (We learned this from the foreperson and
Juror No. 3, who returned to the courtroom for an off-the-record
discussion that I offered to the jurors at Tr. 604-05.) At Tr. 598-99, I
told the jury about the "very restrictive rules" that govern any motion
to reduce a damage award. I then said:
Now, I think that I ought to give you a little more
guidance on the word "compensate" or compensation.
That's the word here on each of these three
questions, How much do you award to compensate Mr.
Marion for these three different types of injuries.
You should not be thinking along the lines of adding
something in order to punish one of the defendants, or
to change that defendant's behavior in the future, or
to deter the defendant.
(Tr. 599-600.) I then discussed the three questions on the verdict
sheet, and ended as follows:
. . . So I think the bottom line is that you should
stop thinking now about what I think about the case. I
don't have the power to substitute my thinking and
just say, Oh, well, he's had his jury trial, but he's
now getting [a] jury [of] 1, me. That's just not the
way it works. So the responsibility is very much your
responsibility, and there is a very heavy limit, a
constitutional limit on what any judge or any
appeals judge could do.
So I think that answers your question. If you
have another question, we're happy to answer that.
(Tr. 601-02.) At that point, the foreperson pulled the verdict sheet out
of her jacket and said: "No. We have our verdict." (Tr. 602.) As the
jurors nodded, I said:
Oh. All right. Everyone is satisfied with this?
Okay. I take that to mean that you were thinking
along the lines that I was, and we don't have any
second thoughts about it. Okay.
All right. Court's Exhibit 9, verdict sheet as
Question 1: How much do you award to compensate
Mr. Marion for the commitment to Bellevue Hospital
against his will? $750,000.
Question 2: How much do you award to compensate
Mr. Marion for the injection of medication against
his will? $250,000.
[Question] 3: How much do you award to compensate
Mr. Marion for the coerced oral medication? The jury
awards $1. Nominal damages for the oral medications.
And, therefore, the numbers will be added together,
resulting in a total verdict of $1,000,001.
(Tr. 602-03.) I then polled the jurors, and each of the seven jurors
affirmed the verdict.
I interpret the nominal verdict on Question 3 to mean that the oral
medications (Haldol and Depakote) were not harmful to plaintiff and
probably were beneficial to him even though wrongfully coerced. I find
the other two verdicts to be excessive. One possibility is that the jury
added something to punish or deter the defendants. (At the later
off-the-record session, no one asked about that possibility.) I am
convinced that the jury was not swayed by passion or prejudice. (I note
that Juror No. 3 was a certified public accountant; at the later session
he articulately explained why the jury found liability.)
The only evidence on damages came from plaintiff's testimony. He
testified for only 33 pages (Tr. 217-49) and defense counsel chose not to
cross-examine him (Tr. 261). His testimony was rambling, colorful and
emphatic, but he did not yell and he did not sob. His testimony about
damages was very sparse and superficial.
"In order to recover damages for mental and emotional distress, the
plaintiff must present credible evidence either by competent medical proof
or by the circumstances of the case." Reiter v. Metropolitan Transp.
Authority of New York, 2003 WL 22271223, *6 (S.D.N.Y. Sept. 30, 2003)
(Koeltl, J.). Marion did not offer any medical proof, and therefore the
question is what emotional damages were "proved by the plaintiff's own
testimony corroborated by reference to the circumstances of the alleged
misconduct." Ibid. First, I will analyze whether plaintiff suffered any
emotional damages with a duration beyond his six days in Bellevue.
Second, I will analyze his damages for the six days of wrongful
confinement. Third, I will analyze his damages from the single wrongful
1. Emotional Damages Beyond the Six Days in Bellevue
The final question asked of plaintiff by his counsel was: "Mr. Marion,
after your hospitalization from [at] Bellevue, did you come away with any
physical problems that you didn't have before your hospitalization?" (Tr.
248.) Marion listed some physical problems and speculated that they were
caused by Bellevue's medications; I will discuss these later. He also
. . . And these, among other things, not to mention
this trauma and the anxiety and the frustration. . .
. I am . . . afraid of these doctors and [afraid to]
go into Bellevue.
(Tr. 249.) This is the sum total of any evidence of emotional damages
having a duration beyond the six days in Bellevue. There is no claim that
his reputation was stigmatized, or that he had any trouble eating or
sleeping after his release from Bellevue. On this topic, his evidence is
even weaker than that in Reiter, where Judge Koeltl reduced a jury award
of $140,000 for emotional damages to $10,000. I do not know whether
Marion's jury awarded him anything for emotional damages having a
duration beyond the six days; if it did, I find that $5,000 would be the
maximum sustainable award for that component of damages.
2. Damages for Involuntary Commitment for Six Days
In Gardner v. Federated Dept. Stores, Inc., 907 F.2d 1348 (2d Cir.
1990), Gardner was wrongfully detained for 8 hours consisting of 2
hours in a store detective's cell where he was punched several times in
the ear, and 6 hours in a jail cell where he was taunted by other
prisoners in the dead of night. Gardner's evidence on damages included a
medical expert and a psychiatric expert, and the Second Circuit upheld
the jury's verdict of $150,000 for pain and suffering. But the jury
awarded an additional $150,000 for deprivation of liberty, which was
purely to "redress the denial of free movement and the violation done to
Gardner's dignity as a result of the unlawful detention, and not the
physical and mental injuries arising from the incident." 907 F.2d at
1353. The Second Circuit held:
. . .[T]he evidence cannot justify the magnitude of
the award for deprivation of liberty. Accordingly, we
order a new trial on the issue of these damages,
unless Gardner agrees to remit the amount in excess of
Ibid. "Needless to say, any comparison with damages awards in other cases
must take into account the increase in the cost of living. . . ." Mazyck
v. Long Island Railroad Co., 896 F. Supp. 1330, 1337 (E.D.N.Y.
1995)(Seybert, J.). The award of $50,000 in 1990 is equivalent to about
$77,000 in 2003 dollars. (I have used the Consumer Price Index Inflation
Calculator located at www.jsc.nasa.gov/bu2/inflateCPI.html.)
Of course, Marion was detained for 6 days, not 8 hours. On the other
hand, he was detained in a hospital with doctors and nurses on his floor
around the clock; arguably, a jail cell involves a more severe "denial of
free movement" and "violation done to [a plaintiff's] dignity."
Defense counsel cited Gardner and other false imprisonment cases and
said "defendants have not been able to find any federal remittitur or
additur cases relating to an improper commitment to a psychiatric
facility." (Def. Mem. p. 13.) They should have looked harder, especially
after a million-dollar verdict. In response, plaintiff's counsel cited
the very pertinent case of Wagenmann v. Adams, 829 F.2d 196 (1st Cir.
1987), affirming Wagenmann v. Pozzi, 1986 WL 715 (D. Mass. Jan. 7,
1986). (Pl. Mem. pp. 30-31.) My own legal research has found:
Dick v. Watonwan County, 562 F. Supp. 1083 (D. Minn. 1983), reversed on
other grounds applicable only to one defendant,
738 F.2d 939 (8th Cir. 1984).
Kennedy v. Sams, 1997 WL 33100527 (N.D. Ga. Oct. 21, 1997).
Barker v. Netcare Corporation, 147 Ohio App.3d 1, 768 N.E.2d 698 (Ohio
App. 10 Dist. 2001), defendants' motion for stay denied (with three
dissents), 94 Ohio St.3d 1428 (2002), leave to appeal denied,
95 Ohio St.3d 1421 (2002).
Defendants' reply brief ignores Wagenmann and falsely writes:
"`Significantly, plaintiff could not find a single damage award case
arising out of an involuntary civil commitment to support his assertion."
(Reply Mem. at 4.) Wagenmann was wrongfully arrested, held in jail for 17
hours, and then involuntarily committed to a mental hospital for 19
hours. A federal jury awarded compensatory damages totaling $1,600,000
and punitive damages totaling $85,000. District Judge Frank H. Freedman
reduced those to $225,000 in compensatory damages and $60,000 in punitive
damages, and Wagenmann consented to these remittiturs. 829 F.2d at 200
and n. 2. The defendants insisted that those amounts were still
excessive, but the First Circuit affirmed in a lengthy opinion. The award
of $225,000 in January 1986 is equivalent to about $385,000 in 2003
In the Dick case, the plaintiffs (husband and wife) were wrongfully
arrested and confined in separate detoxification centers for 3 days. A
federal jury awarded each plaintiff $500,000 in compensatory damages plus
$6,000 in punitive damages. District Judge Harry H. MacLaughlin reduced
each plaintiff's total damage award to $125,000. 562 F. Supp. at
1107-08. The award of $125,000 in April 1983 is equivalent to about
$230,000 in 2003 dollars.
In the Kennedy case, a federal jury in Georgia awarded $2,925,000 in
compensatory damages and $500,000 in punitive damages in 1997. The case
settled for $1,000,000 subsequent to the verdict. JAS Publications, Inc.
describes the facts as follows:
Plaintiff, a pediatrician, was visiting Ridgeview
Institute, a psychiatric facility, to discuss with the
staff the care of her aunt who was a patient there.
She was looking through he aunt's medical files when
she became angry and hostile with the staff over their
treatment of her aunt. Defendant, an internist
employed by the facility, witnessed the incident. He
subsequently tricked plaintiff into returning to the
hospital and had her involuntarily admitted for
Plaintiff alleged that: (1) defendant wrongfully
and in bad faith signed a Form 1013 certificate,
falsely stating he had examined her within the
past 48 hours; (2) defendant failed to comply with
[a Georgia statute] by involuntarily admitting her
when she did not meet the criteria for involuntary
treatment; (3) she was admitted for improper and
impermissible purposes; and (4) defendant damaged
Defendant contended that plaintiff was a threat
to herself and others and that his concerns were
confirmed by two independent evaluations conducted
at the institute.
1997 WL 33100527. On February 19, 1997, the Athens Daily News reported
that plaintiff was sent to the psychiatric hospital for five days in
1993. It also said that the jury awarded $1.6 million for pain and
suffering and $1.3 million for loss of income. It said that, as a direct
result of the commitment, plaintiff's license to practice medicine was
suspended from 1994 to 1996. (The article is on the Internet at
Marion's case for damages was significantly weaker than the three cases
described above. It was undisputed that Marion has had serious mental
illness for many years. It seems clear that the other three juries were
convinced that the plaintiffs never had any mental illness (and that Mr.
and Mrs. Dick were never alcoholics). Accordingly, the amounts that those
plaintiffs received for emotional damages are attributable only in part
to the days of confinement, and in large part to the lingering stigma
that unfortunately attaches to findings of mental illness or alcoholism.
On the other hand, it appears that no injections were given to Wagenmann,
Mr. and Mrs. Dick, or Kennedy.
Accordingly, in some respects a more relevant precedent is the
Barker case. Shortly before she had contact with the psychiatric
facility operated by Netcare Corporation, Barker had some serious mental
and emotional problems, apparently caused by a recent trauma. The Court
of Appeals of Ohio said:
On August 25, 1998, Barker called the Franklin
County Sheriff to report that she had been raped
the week before. One of the
deputies testified that, upon arrival at her home, he
observed that Barker was very upset, raising her
voice, and was out of control and crawling on the
sidewalk. He also testified that Barker told him that
she had cut her hair, removed the caps from her teeth
and put Tabasco sauce on the floor to prevent people
from entering her house. The deputies recommended that
she receive counseling at Netcare. When Barker
agreed, the deputies transported her to Netcare.
. . . Dr. Basobas then ordered Lithium and Ativan to
calm Barker [apparently orally and with consent].
[Nurse] Payton testified . . . that Barker made vague
statements about someone putting her (Barker) out of
her misery and killing her, and at that time Payton
believed that Barker could potentially be a danger to
147 Ohio App.3d at 5-6. At 3:30 a.m., Barker walked away from the
building. At Dr. Basobas's direction, Barker was promptly picked up by
the police, returned to the building, placed in restraints, held as "an
involuntary holdover patient," (id. at 7) and injected with Haldol and
Cogentin (id. at 4).
. . . She passed out from the drugs and, when
she awoke in the morning, she was permitted to
call her husband [who had been away that night].
She was interviewed by a staff psychiatrist who
concluded that Barker was not a danger to herself
or others and sent her home.
(Id. at. 8.)
For false imprisonment and intentional infliction of emotional
distress, the state jury awarded $100,000 in punitive damages and $50,000
in compensatory damages. The defendants attacked both amounts as
excessive. The appellate court upheld the punitive award. It noted that
Netcare had failed to prepare a written statement required by Ohio law
when Barker became an involuntary patient. It also noted that the
physical restraint and injection of drugs can awaken special feelings of
vulnerability in cases of rape victims. (Id. at 10, 16.) The court also
upheld the compensatory award. It noted some evidence of bruises, cuts and
scars. Barker's husband testified that she suffered personality changes.
On the other hand, "Barker did not visit her treating psychiatrist any
more frequently following the
incident at Netcare than she had before the incident." (Id. at 17.) The
court said the jury could also "properly consider humiliation, injury to
feelings, and mental suffering that resulted from the wrongful
imprisonment." (Id. at 18.) On the other hand, Barker, like Marion, did
have serious mental and emotional problems prior to the wrongful
By letter dated February 12, 2004, Marion's counsel sent me copies of
the complaint and verdict sheet in a state court case named Lund v.
Northwest Medical Center, Civ. No. 1805-1995 in the Court of Common
Pleas of Venango County, Pennsylvania. The complaint alleged as follows.
The Oil City Police Department received a telephone call from Lund's wife
alleging that Lund threatened her life. The police committed Lund
involuntarily to a mental health facility, and he was released 6½
days later. The jury awarded $750,000 in compensatory damages and
$425,000 in punitive damages against Northwest Medical Center. Marion's
attorney has been informed that the trial judge is in the process of
"writing an opinion for the appellate court."
With all of these other cases in mind, I turn to Marion's evidence of
damages during his six days of involuntary confinement. Marion testified:
. . . They stripped my clothes and . . . gave me
this little skimpy thing that you would be embarrassed
to be seen in.
I had [a fellow patient,] one young Chinese poor
guy, beautiful kid, but I can understand they got him
doped up, he don't know what he's doing. He is
drooling. And he comes over and . . . was coming on
groping my crotch.
* * *
Q: . . . can you tell the jury what it felt
like to be hospitalized in Bellevue for the period
of time that you were.
A: It's total terror. Torture and terror. Threats,
torture, and terror every time you see a nurse. You
know, you see Nadrich, it's like the demon from hell
(Tr. 236, 244.)
Despite this conclusory hyperbole, Marion acknowledged that
"I was told through my papers . . . that there was a mental hygiene
service" at Bellevue (Tr. 246), and that he met with one of its patient
advocates, attorney Roberta Rattiner, even before December 29 when she
successfully represented him before Justice McCooe. (Tr. 243, 245-46.)
The hospital record contains a note at "12/23/98 3pm . . . Pt. made
aware of legal status & rights." (Exh. 1 p. 32.) This was three hours
after the injection, and probably shortly after he woke up. Page 82 of
Exh. 1 is the standard form that was handed to Marion. It quoted the
statutory definition of serious harm, and said "you . . . may make a
written request for a court hearing that will take place as soon as
possible within 5 days. Copies of such a request will be forwarded by the
hospital director to the appropriate court and the Mental Hygiene Legal
Service." The next three paragraphs discussed the Service at length,
explained that it was "a court agency independent of this hospital," and
listed its address and telephone number.
Accordingly, right from the start, Marion had the comforting knowledge
that he would have an attorney and a court hearing. There is no evidence
(as there was in the Dick case) that the facility was unsanitary. One
nursing note, read to the jury at Tr. 459, shows that the conditions were
far from grim: "Pt . . . began interacting well [with] selected peers in
dining room. Placed chess and now looking at T.V." (Exh. 1 p. 53.)
Excluding the wrongful injection, I find that the maximum sustainable
award to Marion for the six days of deprivation of liberty is $150,000.
3. Damages for Involuntary Injection of Medication
Marion received an injection only once at Bellevue. It was a forcible
injection, against his will, of 5 mg of Haldol and 2 mg of Ativan. During
the next five days, under coercion, he orally took Haldol and Depakote.
Three years earlier, Marion had voluntarily taken Mellaril and Thorazine
for some period of time. (Tr. 189-92.) Marion told the jury that he had
suffered side effects from the medications at Bellevue:
Q: Mr. Marion, after your hospitalization from [at]
Bellevue, did you come away with any physical problems
that you didn't have before your hospitalization?
A: Well, I have problems of I call it
semi-paralysis. When I go to sleep I have difficulty
getting up. I sometimes my muscles
and my nervous system and my brain, my cognitive
dysfunctions with memory and disorientation and
concentration and disorientation. When I look up I get
very dizzy, nauseated, sometimes to the point that I
almost fall, I can't stand up. I have this constant
problem with my muscles and I don't know what these
drugs did to me, but it wasn't like this before. . .
(Tr. 248-49.) Dr. LaFargue then testified about the known side effects of
Haldol, Ativan and Depakote, and explained why he believed that they gave
no side effects to Marion. (Tr. 324-27.) Dr. Stastny later testified on
rebuttal, but he did not venture to dispute Dr. LaFargue on this topic.
Nor did Dr. Stastny or anyone else offer any evidence to corroborate
Marion's speculations about any side effects from the medications. I
presume that the jury credited Marion's sincerity, but it clearly did not
find that there were any side effects. Otherwise, the jury would not have
delivered its verdict of only one dollar for the coerced oral
Accordingly, the injection damages should compensate Marion for perhaps
two seconds of pain, and for perhaps ten minutes of pre-injection fear
after he refused to take the medication orally, and for perhaps ten
minutes of post-injection fear until the medication put him to sleep. I
acknowledge that Marion's pain and fear may have been especially intense
because of his strongly held belief that governmental institutions are
often malicious and aggressive, and perhaps because of a belief that he
was harmed by the Mellaril and Thorazine he took in 1995 and 1996. The
Barker case involved a similar forcible injection, but with a far more
aggravating circumstance: the defendant had information that Barker had
been raped one week earlier. Barker's jury awarded $50,000 in
compensatory damages and $100,000 in punitive damages, but there seems to
be no way to know how much of those amounts were attributable to her
I find that the maximum sustainable award to Marion for the injection
of medication is $25,000.
It is obvious that Dr. Nadrich bears no liability for the injection of
medication, or for the oral medications, or for the first 27 hours of
confinement. I find that Dr. LaFargue's liability should be limited to
those three categories of damage.
I allocate $25,000 to the first 27 hours, I then add $25,000 for
the injection, plus the $1 award for the coerced oral medications. Hence
I find that the maximum sustainable award against Dr. LaFargue is
Dr. LaFargue had the responsibility to make a decision concerning
emergency admission. Dr. Nadrich had much more time to make a decision on
whether to confirm or release. Accordingly, I find that Dr. Nadrich is
liable for all of the other damage. I allocate $125,000 for the nearly 5
days of confinement that followed Dr. Nadrich's confirming determination
of dangerousness. I then add $5,000, which I previously found to be the
maximum sustainable award for any emotional damages having a duration
beyond the six days. Hence I find that the maximum sustainable award
against Dr. Nadrich is $130,000.
I hereby order remittiturs as follows. I direct plaintiff to serve
notice, by March 5, 2004, as to whether he accepts a reduced award of
$50,001 against Dr. LaFargue (for which The New York City Health and
Hospitals Corporation will be jointly and severally liable). Otherwise, I
will set a date for a new trial on the issue of damages as to Dr.
I direct plaintiff to serve notice, by March 5, 2004, as to whether he
accepts a reduced award of $130,000 against Dr. Nadrich (for which The
New York City Health and Hospitals Corporation will be jointly and
severally liable). Otherwise, I will set a date for a new trial on the
issue of damages as to Dr. Nadrich.
If plaintiff accepts one or both of the remittiturs, then I will hold a
telephone conference with the attorneys to discuss the form of the
judgment including whether it should direct that the money be paid into
some sort of a trust for Marion's benefit.
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