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Plaintiff Alleges Negligent Care of Individual Who was in Care of the Defendant



This action arises from the defendant’s treatment in 1982 of plaintiff a 36-year-old individual who was born severely mentally retarded and blind. While he was treated by defendant, plaintiff was a resident of an intermediate care facility of the United Cerebral Palsy Association of Nassau, Inc. (hereinafter UCPA).

Plaintiff had been institutionalized his whole life and, from 1972 until 1981, resided at the Suffolk Developmental Center. In an effort to control his increasingly severe episodes of self-abusive behavior, in 1978 his primary physician at the facility, the doctor began administering Haldol to him. The doctor viewed Haldol as the “drug of choice” in eliminating such behavior. The drug was initially administered in low dosages, which were gradually increased in small increments, during which time plaintiff was carefully monitored for any signs of Haldol-related side effects. Over the course of the following 13 months, the dosage was gradually reduced again to that of four milligrams per day, considered optimal by the doctor inasmuch as the likelihood of side effects was low and his severe self-injurious behavior was contained.

Plaintiff was maintained on this dosage of Haldol for the next two years under the doctor’s care, during which time his behavior improved dramatically: he participated in various recreational group activities, was independent in many aspects of daily living, and was fully ambulatory. Plaintiff’s impressive improvement did not go unnoticed by those in the mental health community close to him. He was selected to participate in a new home environment instituted by UCPA known as an intermediate care facility, the purpose of which is to establish a family-like setting where residents can enjoy community resources in an effort to allow them to maximize their potential.

The transfer was effected in March 1981 at which time plaintiff came under the care of the defendant, the attending physician at the UCPA facility. Defendant continued plaintiff’s medication of four milligrams of Haldol daily for the next 16 months. Plaintiff adjusted well to his new environment and he steadily improved in his personal and social development, gaining independence in many activities as a result of a behavior modification program instituted by UCPA. He was able to dress, eat and tend to personal hygiene on his own. He was able to converse intelligently in English and Spanish, and he enjoyed many of the recreational activities, including dancing, baseball, kickball and swimming. Moreover, he attained a level of independence in ambulation as a result of having been taught to walk with a blind man’s cane as his guide.

In July 1982 defendant ordered a change in plaintiff’s medication. Instead of receiving four milligrams of Haldol daily at bedtime, he received two milligrams on an as needed basis. Thus, the medication would be administered only if plaintiff became hyperactive or self-abusive. The doctor explained that his decision was prompted by an impending State audit by the Office of Mental Retardation and Developmental Disabilities of all UCPA programs, which was to include a review of each resident’s records. The audit would be focusing, in part, on whether those patients on psychotropic medication had been evaluated with a view toward reduction or elimination of medication, a goal expressly made part of UCPA’s policy of encouraging freedom from chemical restraints which was consonant with both Federal and State regulations and stemmed from a concern for preventing the adverse effects of medication. Defendant reviewed the plaintiff’s UCPA records and concluded that since Charles had been on Haldol for “quite some time” and was “certainly” at risk for tardive dyskinesia, “an irreversible neurological disorder characterized by involuntary, rhythmic and grotesque movements of the face, mouth, tongue, jaws and extremities”, one of the most feared of the drug’s side effects, of which Charles had as yet manifested no signs, “he certainly deserved a trial at removal”.

Within one month of defendant’s reduction and/or elimination of the medication, the plaintiff regressed to his former self-abusive behavior, which was so severe that it was uncontrollable and required hospitalization under his care. After an unsuccessful two-week trial of various drugs to control plaintiff’s severe self-abuse, defendant represcribed Haldol in dosages of up to 15 times what they had been during the maintenance period, causing Charles to experience several of the severe side effects of the drug, e.g., Parkinsonian-like stiffness and tremors, lethargy, drowsiness, and an inability to eat, swallow, talk or walk. Plaintiff was maintained on a high dose of Haldol during the next five weeks of his hospitalization, as well as throughout his 11-week post-hospitalization stay at the intermediate care facility. During that time, his condition deteriorated, and he was transferred back to the Suffolk Developmental Center in Suffolk County, NY.

Upon plaintiff’s return to the Suffolk Developmental Center, he was confined to a wheelchair, had developed stiffness, tremors and contractures (shortening of the tendons and ligaments) of all four extremities, was barely able to speak, unable to feed himself, and had lost 28 pounds. The immediate neurological and psychiatric evaluations performed confirmed Dr. Zurek’s belief that plaintiff’s condition was the result of an “excessive use of Haldol”. In a word, he was catatonic.

The doctor’s treatment plan was for a gradual reduction of the Haldol in an attempt to reverse some of the side effects. As the medication was being discontinued and then eliminated, plaintiff’s physical condition improved gradually, though the self-abusive behavior returned, requiring the use of physical restraints. Despite intensive and painful physical therapy, the condition of his legs did not improve. The flexion contractures remain, and are irreversible. Plaintiff is unable to walk and is confined to a wheelchair.

The plaintiff’s theory at trial was that defendant, acting in the scope of his employment with UCPA, was negligent in reducing the Haldol medication, that both defendant and UCPA departed from accepted standards of medical practice in failing to obtain the informed consent of plaintiff’s mother and guardian, and that these acts proximately caused his injuries. The defendants asserted that defendant’s decision to reduce plaintiff’s medication was within the scope of professional judgment for which no liability can be imposed and that, even if departures from accepted medical practice were demonstrated, no causal connection between the alleged departures and plaintiff’s injuries existed. They asserted that the Haldol played no part in causing the injuries sustained, but that they were the natural sequelae of plaintiff’s abnormal neurological condition which existed from the time of birth and which “got worse for reasons which are not clear”.

At the conclusion of the three-week trial, the court, pursuant to CPLR 4111(b), submitted various special interrogatories which it had formulated to the jury without objection by any party. The jury concluded that “defendant departed from accepted medical practices and standards in changing the administration of Haldol from 4 MG at bedtime to 2 MG as needed”, and that this act was both a proximate cause of Charles’s injuries and was performed within the scope of Dr. Simon’s authority and in furtherance of UCPA’s activities, rendering UCPA vicariously liable. The jury rejected the claim asserted against defendant predicated on lack of informed consent as well as that advanced against UCPA for its alleged failure to earlier observe and/or report to defendant changes in plaintiff’s condition after his July 1982 discontinuation of the Haldol. With respect to the remaining interrogatory concerning UCPA’s “active” negligence, i.e., “Was defendant [UCPA] negligent in failing to provide Ixia Leal, the mother of plaintiff, with an opportunity to actively participate in the decision to change the medication he was receiving” in accordance with its self-imposed policies and procedures, the jury responded affirmatively. As to the second part of the question, i.e., whether this negligence was a proximate cause of any injury sustained by him, the jury marked the box labelled “No”, inserted an asterisk, and qualified its response with the handwritten addendum: “The jury feels, however, that there were other acts of negligence on the part of [UCPA] which were proximate causes of injury sustained by plaintiff. In attributing fault to the defendants, the jury was instructed to do so only with respect to each defendant’s affirmative negligence, i.e., not to consider UCPA’s vicarious liability, and apportioned fault at 55% to defendant and 45% to UCPA. The jury awarded the plaintiff $2,000,000 for plaintiff’s pain and suffering and for the permanent effect of the injuries and $500,000 for care and maintenance services.

The inherent inconsistency of the verdict, as it stood, i.e., that, on the questions submitted to it, the jury did not find UCPA to have been independently negligent yet apportioned fault to UCPA for such negligence, was addressed by counsel for the defense, who sought a mistrial, and the plaintiff’s attorney, who urged that judgment be entered in his client’s favor on the verdict since defendant was found negligent and UCPA was vicariously liable for his acts. The court ultimately determined to resubmit the interrogatories to the jury for clarification. It instructed the jury to “indicate on paper what it had in mind” with respect to the “little asterisk and the fore noted comment”, over the defendants’ objection.

The expert testimony elicited established that defendant’s acts were a “substantial factor in producing the resultant injury”. The physicians testified unequivocally that defendant’s “clear” deviation from accepted medical practice in reducing and eliminating plaintiff’s Haldol medication was a proximate cause of the injuries suffered by him inasmuch as the sudden reduction necessitated the subsequent administration of massive doses of Haldol which resulted in complications which in turn led to the development of irreversible leg contractures making it impossible for him to walk.

Further, the jury was warranted in rejecting the defense claim that plaintiff’s condition was in no way attributable to the Haldol elimination and re-administration but was attributable to the aggravation of a structural brain disturbance which had been with him since birth, for “a plaintiff need not eliminate entirely all possibility that defendant’s conduct was not a cause, but only offer sufficient evidence from which reasonable persons may conclude that it is more probable than not that the injury was caused by the defendant”, which the plaintiff did.

We turn now to the concededly unorthodox manner in which the verdict as to UCPA was rendered. Upon ascertaining that an internal inconsistency in a jury’s verdict exists, a trial court is authorized to either declare a mistrial or “require the jury to further consider its answers and verdict”. While the trial court in this case properly endeavored to have the jurors reconcile their initially irreconcilable factual findings inasmuch as it did not appear that they were hopelessly confused so as to warrant the declaration of a mistrial, it did not do so in a manner consistent with the law. Just as where a special finding issued by a jury which has been charged to deliver only a general verdict is regarded as “surplusage”, “gratuitous” so, too, should a jury finding beyond the ambit of or deviating from the questions propounded to it be considered a legal nullity. It is clear that the charge of the trial court, insofar as it is not accepted to, becomes the “law of the case” and the jury is bound to render its verdict in the form prescribed by the court. It was, therefore, incumbent on the trial court to direct the jury to reconsider its findings and to return with a special verdict responsive to those interrogatories posed by the court. In the absence of such action, the verdict finding UCPA to have been actively negligent cannot be sustained, and the apportionment of fault between the two defendants must be set aside.

This determination is, however, “without practical significance to the plaintiff but may merely affect defendants’ obligations as between each other” since UCPA is nevertheless vicariously liable for defendant’s affirmative acts of negligence and therefore UCPA and defendant are each jointly and severally liable for the full amount of the verdict, which the plaintiff may recover from either defendant. We note that inasmuch as no cross claims for indemnification or contribution have been asserted by the defendants as against one another, we do not remit the matter for a new apportionment of fault between them.

With regard to damages, the verdict was excessive to the extent indicated. We have examined the defendants’ remaining contentions and find them to be without merit.

Accordingly, the judgment is reversed, on the law and the facts and as an exercise of discretion, so much of the verdict as apportioned 55% of the fault to defendant and 45% of the fault to the United Cerebral Palsy Association of Nassau County, Inc., is set aside, and a new trial is granted on the issue of damages only, unless within 20 days after service upon the plaintiff of copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to reduce the verdict as to damages to the principal sum of $1,100,000 ($1,000,000 for pain and suffering and $100,000 for future care and maintenance services) and to the entry of an amended judgment accordingly. In the event the plaintiff so stipulates, then the judgment, as so reduced and amended, is modified, on the law, by setting aside so much of the verdict as apportioned 55% of the fault to defendant and 45% of the fault to the United Cerebral Palsy Association of Nassau County, Inc., and as so modified, the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

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