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MARION v. LaFARGUE

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 "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:

  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 Page 7 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 Marion himself:

 

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. 80.) Page 8

  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 Page 9 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 Page 10 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 to damages.
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.) Page 11

  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 injection.

  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 added:

. . . 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. Page 12

  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 $50,000.
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, Page 13 738 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 dollars.

  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 Page 14 hospital and had her involuntarily admitted for observation.

 

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 her reputation.
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 www.athensnewspapers.com/1997/102997/1029.a3committed.html.)

  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 Page 15 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 herself.
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 Page 16 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 commitment.

  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 or something.
(Tr. 236, 244.)

  Despite this conclusory hyperbole, Marion acknowledged that Page 17 "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 Page 18 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 medications.

  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 injection.

  I find that the maximum sustainable award to Marion for the injection of medication is $25,000.

  CONCLUSION

  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. Page 19 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 $50,001.

  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. LaFargue.

  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. Page 1

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© 1992-2004 VersusLaw Inc.



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