*1 494 easement, per temporary
rate month with $154 items, and appropriate on both the interest modified, facts, the law 1 on Action No. should be and the for increasing damages to claimant-landlord to land award $15,238 damages building for cost to $93,550 item, and, cure, interеst on each with as so appropriate affirmed, modified, both without costs. judgments Mahoney P., JJ., J. Sweeney, Greenblott, concur. modified, 2 No. the law and the Action
facts, award in favor of claimant-tenant by reducing the $1,850 $11,050 per year for its fixtures and the rate $154 with per temporary appropriate month for easement items, modified, in Action interest on both No. facts, by increasing on the law and award to claimant- $93,550 building for to land and damages lаndlord cure, for cost interest affirmed, item, and, judgments on each as so both costs. without Alan D. F. as Administratrix Estate of Cohen,
Ellen Cohen, Deceased, Respondent, v State of New (Claim 57074.) Appellant. No. Department, April Third (Ruth Lefkоwitz, Louis J. Attorney-General Kessler Toch *2 counsel) P.C. Zachary, (Joseph and John S. E. Magnotti counsel), for appellant.
Aaron J. Broder Madow for Seymour respondent. (referred Cohen, J. Alan the claimant’s intestate decedent) to herein as married, 23 years age, and at the death, 22, time of 1971, his April he was a third-year medical student at the Downstate Medical Center University of the State of New York. Prior to admission as a medical student he graduаted had Rochester, from the University of receiving a Bachelor of Arts degree, major with a in psychology.
In January, 1971 he voluntarily entered the Downstate Medical psychiatric Center department for a diag- conditiоn nosed as paranoid schizophrenia. prior He had to this admis- sion been an out-patient at the psychiatric ward Kings of the County Hospital. Upon 52, admission he was assigned to Ward beds, which door, consisted of 32 opеn with an program and a organized around the concept therapeutic of a community. There were aides, five nurses generally five together with staff, members of the medical occupational therapists, рsychol- staff ogy and social workers.
On his admission record there awas statement decedent had shown suicidal potential and it readily appar- is ent from a reading of the record that the doctors and nurses in attendance had knowledge of the poten- decedent’s suicidal tial.
Culling from the 32-page decision of the Judge of the Court Claims, his finding of liability following: is based defendant, "I find that in the form of the State Univer- York, sity New Downstate Medical Cеnter and em- its ployees, (see, Bing Thunig, v. including physicians 2 N Y 2d 667) 656, 666, did not treat supervise or decedent with ordinary and reasonable care and diligence, judgment medical and skill required stan- by acceptable of the dards community. nоt,
"I also find that Dr. treating physician, career, in his point this medical possess requisite skill to, psychiatric unsupervised, trained judgment essentially provide ordinary psychiatric reasonable treat- Honsinger, Pike See v. 155 N. and. deсedent. ment care to this Zophy York, 201, 209, 27 A D 2d v. Y. 414, 210 and Heights Hospital, also, v. Crown See, 416. Meiselman Dean, 52; Hillside 232 N.Y. Fatuck v. 389; v. N.Y. Benson Wright Hospital, State of A D 708; v. 45 A D 2d 559; Attie, 30 A D 2d Herold 423; v. v. State 2d McGovern 835.” 15 A D 2d of New
And also: more than error
"In was much a mere the case at bar there many judgment. but errors of not one There was unsupervised in an status to made a doctor not supervisory capacity; judgment; and, those make a careful examination.” all made without that a doctor established liable Thе rule of law is well provided he does what he thinks for mere error (See Dean, 232 Benson v examination. is best after a careful *3 Honsinger, 201, 210; 155 NY Collins v State 52; Pike NY v Trapani 898, 542; York, 17 NY2d v State 23 AD2d affd New York, 22 AD2d York, 709; v State of New 23 AD2d Gioia New York, 837; 20 AD2d Szostak v 181; Muhlmichl v State of 828; v State of New 20 AD2d Wilson 643.) app 976, den 11 NY2d 14 AD2d mot for lv to the is whether or not defendant’s in this case The issue and then of the decedent a careful examination doctors made determining that the medical care exercised reasonable April 22, to the ward on not be restricted decedent 1971. treating physician by not a court, was the found As 4) (Mental Hygiene
qualified psychiatrist 27, Law, § subd residency required many years only just on the started had having recognition system of In of this to attain certification. immediate treatment contact and handle the residents pro- hierarchy patients, had an established the defendant Bjork Dr. case was: third-year in the decedent’s care which vide medical doctor); Rosenberg, (attending resident; .then Dr. a treating physi- first-yéar resident and Dr. a and then cian. quali- not a factual issue is whether
The determinative actively supervising psychiatrist the care was fied Bjork only a such have been case Dr. could In this decedent. establish found that the record the court doctor and April of 1971 informed made that she had propensities. suicide to the decedent’s Dr. Bjork April that as of tеstified she formed opinion based of decedent upon observation ward discussion with Dr. Sverd and other members of the facility having contact that he with decedent should be prepared for discharge from the She knew that hospital. the decedent had made hospital However, statements staff about suicide. there is no any prior evidence of attempts at suicide by decedent. The practice patients was for to be аt discussed team meetings held a about three times Dr. week. testified that it "bad judgment” let the patient off ward on the of death. day
While patients this record establishes were discussed at team meetings, it is not that any established evaluation of this propensities decedent’s suicide aby was made psychi- atrist during his at the stay hospital. While there are infer- ences of judgment Dr. being Bjork, is nothing in the hospital support records to finding a that she ever made а based fully nurses’ *4 qualified psychiatrist. a might
While the court the given have more credence to did, of Dr. assertions that she informed than it fully was the any fact remains that the record contain written does not evidence her or to any psychiatrist as suiсidal Indeed, in propensities and about the time death. she that off conceded the decedent not been allowed have day ward on the of death in view of the nurses’ observations. whole, the fact On the record as questions contained supervision judg- and whether or any qualified propensities ment to suicidal and restraint was The part hospitalization. view of his behavior the last of his makes the keep *5 $150,000 $35,000, with together awarded to сlaimant from to interest, and, modified, affirmed, as so with costs. appropriate Settle order on notice.
Reynolds, (dissenting). agree We cannot that J. the State tragic be death claimant’s liable intestate on in the рresented the basis of the evidence instant record. the State owed to the Concededly, only duty decedent was (e.g., to exercise him from protect reasonable care himself 125). Hirsh v The does majority NY2d not find such on the negligence a lack of care the basis part finding of Dr. his consti- implicitly thus actions to tute no an in or in judgment, more than error the decision to "open utilize "milieu door therapy” policy” course Rather, is, effеct, of treatment malady. for decedent’s fault Dr. ground Bjork found on the that did not adequately super- considering vise Dr. yet possess Sverd that he requisite unsupervised skill an training act in manner. opinion In our supervision afforded Dr. Sverd Dr. Bjork adequate. more than It is clear Dr. thoroughly and continuously Dr. progress reports, reviewed Sverd’s notes and and dece- dent’s progress and condition were at team regularly discussed meetings Bjork. attended Dr. Bjork, fact Dr. herself, did personal not conduct a evaluation and enter her thereon, conclusion based cannot said to negli- be to amount gence any and in event proximate was not of the cause Instead, death оf claimant’s intestate. if be fault all, it judgmental lies decision of Dr. Sverd for that State, noted, clearly not liable.
Accordingly, we would reverse the and dismiss the (Kardas 789). v State of New claim 24 AD2d Main, JJ., J.; Greenblott concur with Kore- man, P.J., J., Reynоlds, dissent and vote to reverse an Reynolds, opinion by J. on the facts in the law
interests of justice, by reducing the awarded $35,000, claimant from together interest, and, modified, affirmed, as so with costs. Settle order on notice. Reed, C. аs Administratrix of the
Joan Estate William County Deceased, Reed, et Respondent, v Schoharie al., Appellants. Department, April
Third notes any kind personal interview. The fact that the decedent was himself a at medicаl student may Downstate have influenced exercising the staff in its judgment. happened What in this case result was the of ill-defined circumstances, policy, present in the as to the power of floor nurses impose patient’s restraints freedom and requir- ing full by qualified evaluation psychiatrists periodic inter- vals. fault Rosenberg herein is not Bjork, with Doctors individuals, Sverd but rather with the of policies lack requiring management more direct of a patient’s treatment
Notes
failure to detailed and notes proper medical circumstances, situation, than an present under these more error of medical judgment. The appeal notice of was "from each and every part of said Order and as well as the whole thereof’. While no issue is raised in the defendant’s brief to the quantum of judgment, reading the from of the record a and in the inter- justice, ests of compelled the court is review the issue. mentioned, As old, the decedent was 23 previously years married, year and in his third of medical school. The court found that had not the claimant sustained her burden proof that accepted decedent would have been bаck into medical school and his career successfully pursued as a doctor. We affirm that The further finding. record establishes that death, time of the decedent’s the claimant working was and support was chief source of for herself and the decedent. fact, In particulars the bill of submitted by the claimant alleges: "12. Decedent student did not make any contributions of the next of kin.” At the time of the trial and for time prior some thereto the clаimant had remar- ried. query The then is—what was basis for the court award- $150,000? ing damages in the amount of reading From a decision, appears court’s it to be following: based well-educated, "I have bright, considered that Alan was a yоung very probably, man who with a proper sufficiently long enough treatment, course of would have returned to a believe, however, productive place useful and I society. his condition always fragile would have been somewhat that his work would have to be in fields not to the subject pressures of executive or professional life.” circumstances, In our opinion, under such the award of excessive, is damages clearly being no fair basis Claims, In appeal same. actions initiated in the Court of on findings this court has the authority duty make new (cf. Blassman v State when necessary required 524). find, 282 NY the entire premised We record, and, grossly accordingly, award is excessive modify the same and make a the claimant finding that entitled to the sum of interest costs. should be and the facts on the law and in the interests justice, by reducing