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granting summary judgment where plaintiff failed to submit competent expert evidence and where defendant submitted an expert affidavit "asserting that [d]efendants followed generally accepted medical standards"
Summary of this case from Virgil v. DarlakOpinion
08 Cv. 0334 (BSJ)
08-30-2011
SHERRY BENDER Plaintiff, v. R. SANDLIN LOWE III, M.D., personally and Professionally License No. 17986, et. al. Defendants.
Memorandum & Order
Pro se Plaintiff Sherry Bender ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 against Defendants R. Sandlin Lowe III, M.D., personally and professionally, License No. 179865 ("Lowe"); Michael Adam Ciranni, M.D., personally and professionally, License No. 241809 ("Ciranni"); and Matthew Seth Holden, M.D., personally and professionally, License No. 218629 ("Holden"). Bender's complaint arises from two involuntary commitments at Bellevue Hospital on March 8, 2006 and March 15, 2006. Defendants now move for summary judgment against Plaintiff under Federal Rule of Civil Procedure 56(c). For the reasons set forth below, Defendants' motion for summary judgment is GRANTED.
BACKGROUND
On March 8, 2006, New York Police Department ("NYPD") officers responded to the report of a disturbance at Plaintiff's residence on East 11th Street in Manhattan. (Silverberg Affidavit Exhibit A at SB 0125.) Plaintiff called 311 (the city's non-emergency telephone assistance line) to report an illegal bar located next to Plaintiff's apartment. (Pl. 56.1 Stmt. ¶ 5, 8.) The police report from the incident indicates that Plaintiff was "yelling and screaming irrationally at different times," verbally threatened others, acted "irrationally and violent at different times," and would "act up and calm down over and over." The report also indicated that the officer observed a variety of behaviors, including: overly suspicious/feelings of persecution, hostile argumentative or belligerent behavior, expresses ideas of inflated self importance, extremely rapid heart rate/trouble breathing, and restless/hyperactive behavior. (Silverberg Affidavit Exhibit A at SB 0125.) Plaintiff denies this behavior. The parties agree that EMS and/or NYPD personnel visited Plaintiff's apartment twice on the evening of March 6, 2006, and on the second occasion EMS transported Plaintiff to Bellevue. (Pl. 56.1 Stmt. ¶ 7.)
Police reports and Plaintiff's testimony indicates that the call or calls may have been transferred by the 311 operator to the 911 emergency line.
Hospital records indicate that upon arrival the NYPD informed Bellevue staff that Plaintiff was "obsessed" with an illegal bar next to her apartment, that she "excessively calls 911/311 daily" about the bar. The report provided to the hospital by police states that Plaintiff "called 911 today reporting chest pain [and] upon arrival [Plaintiff] was running up and down street screaming about the bar next door." Police then reportedly "calmed her down and left only to have to return to scene minutes later for ... same behavior." Plaintiff "report[ed] to the police to having decreased need for sleep because she is thinking and worried about the bar. Plaintiff refused to talk and [therefore her] remaining [history] unable to be attained." The NYPD further informed doctors that the Plaintiff was "irrational, paranoid, and labile to NYPD." (Silverman Affidavit Exhibit A at SB 0114.) Plaintiff denies the truth of this report, but does not deny that this information was relayed by the NYPD to Bellevue's physicians. (Pl. 56.1 Stmt. ¶ 7.)
Upon arrival at Bellevue, under the Comprehensive Psychiatric Emergency Program ("CPEP"), Plaintiff was first evaluated by a CPEP nurse, who noted that Plaintiff believed that she was experiencing a "malicious retaliation" or "malicious persecution" due to the illegal bar and that Plaintiff believed the "police are working for the bar." (Silverman Affidavit Exhibit A at SB 0106.) Plaintiff was then examined by Denise Pate (a third year medical student) who reported that the patient was refusing further examination and therefore no more information could be obtained. (Id. at SB 0113.) Plaintiff denies that she refused to cooperate but asserts that she asked Pate if she could speak with the attending physician, Defendant Dr. Sandlin Lowe III; this request was "denied until [Plaintiff was told] she was staying overnight." (Pl. 56.1 Stmt. ¶ 9.)
Defendant Dr. Lowe states that he does not specifically recall Plaintiff, but based on his review of the records, he completed a "mental status examination report" that noted the Plaintiff's cooperation was "limited," her "thought content was paranoid as related to a police conspiracy against her, and ... her affect was constricted, irritable and inappropriate and her judgment was poor and without insight." (Lowe Affidavit ¶¶ 7-12; Silverman Affidavit Ex. A at SB 0119, 0114.) Plaintiff asserts that her only interaction with Lowe occurred a few hours into her stay at Bellevue, when Lowe approached her in the waiting room, asked Plaintiff if she wanted to speak with him and refused Plaintiff's request to meet in a "smaller, quieter room." (Pl. 56.1 Stmt. ¶ 9.) Plaintiff asserts that she was not evaluated by Lowe in any manner. (Id.)
Defendant Dr. Lowe signed an emergency admission form, pursuant to NYS Mental Hygiene Law § 9.39, diagnosing Plaintiff with a "psychosis NOS" (not otherwise specified) and admitting her with the stated justification "behavior intolerable in community danger to others." (Silverman Affidavit Ex. A. at SB 0132.) Dr. Lowe further noted that the Plaintiff called 911 daily about problems at the bar and that she "is a danger to others due to her excessive use and occupation of 911 operators/system." (Id. at 0143.) Plaintiff received a copy of the Notice of Status and Rights required under § 9.39, as well as a Notice of Right to Appeal relevant to all treatment decisions. (Def. 56.1 Stmt. ¶ 12, Pl. 56.1 Stmt. ¶ 12.) Dr. Lowe ordered routine blood tests and lab work to rule out organic causes of Plaintiff's symptoms and rule out substance abuse. Plaintiff refused this testing, and the all the ordered tests were cancelled except for the chest x-ray, which was completed because it was required as a public health mandate on every patient. (Def. 56.1 Stmt. ¶ 13; Pl. 56.1 Stmt. ¶ 13.)
That evening and into the next morning, March 9, 2006, Plaintiff was monitored by the psychiatric nurse on duty and a social worker. The report of the social worker indicated that Plaintiff was "mildly irritable, logical, coherent." The social worker also reported speaking to a neighbor who verified Plaintiff's story of being harassed in the building. Another staff psychiatrist examined Plaintiff and noted that discharge was appropriate because Plaintiff was in control of her behavior and not a danger at that time. Plaintiff refused referrals for outpatient psychiatric treatment, though she was provided with information about Bellevue's walk in psychiatric clinic. Her official diagnosis at the time of her discharge was "paranoid delusional R/O" (which indicated a need to particularly rule out a diagnosis of paranoid delusional psychosis). (Def. 56.1 Stmt. ¶ 15, Silverberg Affidavit Ex. A at SB 0041.)
One week later, on March 15, 2006, NYPD officers again reported to Plaintiff's address. The police report stated that Plaintiff was verbally threatening others and experiencing feelings of persecution; she reportedly stated that the police were out to get her. The police report further noted that Plaintiff believed that the "9th [precinct] has kidnapped her" and reiterated her complaints about the bar next to her apartment. (Silverberg Ex. A at SB 0067.) Plaintiff was again taken to Bellevue Hospital. Upon arrival, the NYPD reported this behavior to the physicians at Bellevue and informed physicians that Plaintiff was "calling 911 incessantly" and tied up the phone lines. (Silverberg Affidavit Ex. A at SB 0056.) Defendant Dr. Lowe signed the NYPD form acknowledging that Plaintiff was received at Bellevue but had no further contact with Plaintiff that evening. (Def. 56.1 Stmt. ¶ 16.) Again, Plaintiff disputes the truth of the NYPD report but does not deny that this information was passed on to Bellevue's staff.
Plaintiff was first evaluated by a psychiatric nurse and then by Defendant Dr. Ciranni, who reviewed the NYPD report and the initial evaluation of the psychiatric nursing staff. The nursing staff described Plaintiff as "uncooperative" and a potential danger to herself and others. (Silverberg Affidavit Ex. A at SB 0065-66.) Dr. Ciranni interviewed Plaintiff and noted her primary symptoms of "paranoid delusions, depressed mood, and insomnia." According to Dr. Ciranni's report, Plaintiff further exhibited a linear thought process with paranoia and preoccupations concerning the bar. (Id. at SB 0062.) He also reviewed the records of Plaintiff's admission the week prior, and concluded on the basis of all the available information that she was "suffering from an escalating paranoid delusional system, and possibly a formal psychosis." (Id. at SB 0060.)
Defendant Dr. Ciranni then involuntarily admitted Plaintiff pursuant to §9.39, stating that her delusions and paranoia were leading her to call 911 incessantly and tie up emergency phone lines. Defendant Dr. Holden, the attending physician, consulted with Dr. Ciranni, reviewed the psychiatric evaluation, and agreed with the diagnosis. (Id. at SB 0094; Def. 56.1 Stmt. ¶ 20-21.) Dr. Ciranni ordered routine lab tests, which were completed. Plaintiff asserts that she objected to such tests but they were completed by force; hospital records do not indicate that Plaintiff objected to such tests. (Pl. 56.1 Stmt. ¶ 23.) Hospital records also show that Plaintiff was also prescribed psychiatric medications but refused to take them; Plaintiff denies that she was ever offered psychiatric medication, though agrees that she would have refused any medications prescribed. (Pl. 56.1 Stmt. ¶ 24; Def. 56.1 Stmt. ¶ 24.) Plaintiff was also provided with the Notice of Status of Rights and Notice of Appeal. (Pl. 56.1 Stmt. ¶ 25; Def. 56.1 Stmt. ¶ 25.)
The next day, on March 16, 2006, Plaintiff was evaluated by hospital staff members, including a social worker and another physician. A staff member contacted Officer Curcio at the 9th precinct, who stated that Plaintiff did not have a history of violence towards herself or others. Records indicate that Plaintiff agreed not to call 911 or 311, was stable, and noted that although she may have underlying psychiatric problems, she did not meet the criteria for hospitalization on an emergency basis. (Silverberg Affidavit Ex. A at SB 0071.) Plaintiff was discharged and again refused any referrals or follow up treatment. (Id.)
On January 5, 2008, Plaintiff filed suit in this Court, naming Defendants Dr. Lowe, Dr. Holden, and Dr. Ciranni, as well as the City of New York. On April 16, 2009 and May 14, 2009, Defendants moved to dismiss. On March 29, 2010, the Court denied the motions as to the individually named defendants, but dismissed all claims against the City of New York. Defendants Lowe, Holden, and Ciranni now move for summary judgment.
DISCUSSION
1. Plaintiff's Objection to Discovery Order of Magistrate Judge Peck
a. Background
As a preliminary matter, Plaintiff notified this Court by letter on September 23, 2010 of her objection to the September 9, 2010 order of Magistrate Judge Peck requiring Plaintiff to produce her expert, Dr. Goldwaser, for deposition at her own expense by September 30, 2010. The order stated that failure to do so would result in the exclusion of the report.
This Court referred all pre-trial proceedings, including discovery, to Judge Peck's supervision. Per Judge Peck's scheduling order, the original deadline for Plaintiff's submission of her expert report was July 1, 2010. Plaintiff failed to submit the report by this deadline. (Tr. of July 15, 2010 Hearing at 15-19.) Judge Peck then extended the deadline to August 13, 2010. On August 13, 2010, Plaintiff wrote to Judge Jones requesting an extension of that deadline. Judge Jones referred the request to Judge Peck, who ruled that he would not extend the deadline. However, he informed Plaintiff that if the report was provided to the Court and defense counsel by August 30, 2010, he would consider whether to allow it to be used in this case. (Order of August 19, 2010.) Plaintiff's expert report was not provided to defense counsel until September 7, 2010 and to the Court until September 8, 2010. (Tr. of Sept. 8, 2010 Hearing at 7:1-9.)
On September 8, 2010, at a status conference, Magistrate Judge Peck accepted Plaintiff's expert report, despite the fact that it was "egregiously late." However, Judge Peck ordered that Plaintiff produce her expert for deposition by Defendants by the discovery deadline, September 30, 2010. Judge Peck further ordered that Plaintiff bear the costs of this deposition "because of the lateness here and other equitable reasons." (Id.) Plaintiff informed Judge Peck that she was unable to pay these costs because she was indigent and requested an extension of the September 30 deadline, which Judge Peck denied. Judge Peck reminded Plaintiff at that conference that "Any other deadlines you miss are going to result in ... being precluded from producing evidence or whatever else is the appropriate remedy." (Id. at 7:19-21.)
On September 23, 2010, Plaintiff appealed these orders to this Court, reiterating her inability to afford the costs of the deposition and requesting that the discovery deadline be extended by four weeks. (Plaintiff's letter of September 23, 2010.) Defendants opposed the appeal and any further extension of the discovery schedule, arguing that "Ms. Bender has been on notice of the date of the close of discovery as well as her discovery obligations and has failed to meet Court scheduled deadlines to produce her expert report and her responses to defendants' discovery requests." (Defendant's letter of September 23, 2010.)
On October 6, 2010, Defendants informed Judge Peck that Plaintiff had failed to comply with the Court's order that her expert be produced for deposition by September 30, 2010. Defendants requested that the Court reject Plaintiff's expert report and preclude her from using it in support of any of her claims or in response to any of the Defendants' defenses. Defendants stated that they would be "highly prejudiced" if the Court were to allow Plaintiff to rely on the report. (Defendants' letter of October 6, 2010.) Judge Peck ruled that Plaintiff was "precluded from using her expert report" in this case. (Order of October 6, 2010.)
In her memorandum in opposition to the motion for summary judgment, Plaintiff reiterates her original objections and further argues that Magistrate Peck's order excluding her expert report was a "manifest injustice" and "g[ives] the clear impression of bias, in violation of rules, in direct opposition to NY norms, so extremely severe and punishing, merely because Plaintiff did not have enough money to pay defendants to depose Plaintiff's expert." (Pl. Mem. at 9.)
b. The Court upholds the orders of Magistrate Judge Peck
Under Federal Rule of Civil Procedure 72(a), a court is to set aside or modify the decisions of the magistrate judge on non-dispositive matters only where those decisions are clearly erroneous or contrary to law. A magistrate judge's resolution of discovery issues is entitled to "substantial deference." Weiss v. La Suisse, 161 F. Supp. 2d 305, 320-21 (S.D.N.Y. 2001).
As Plaintiff is pro se, this Court seeks to provide her with a liberal reading of her objections. However, while pro se litigants may "in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders." McDonald v. Head Criminal Court Supervisor, 850 F.2d 121, 124 (2d Cir. 1988). Pro se litigants, like all parties, who "flout that obligation ... must suffer the consequences of their actions." Id.(affirming the dismissal of a pro se plaintiff's complaint for failure to comply with court order); see also Dunn v. Albany Medical College, 2010 WL 2326127, at *4(N.D.N.Y. June 7, 2010)(pro se plaintiff's failure to meet discovery deadlines over approximately three month period warranted sanction that Plaintiff was required to pay all reasonable costs, including attorney's fees, associated with his non compliance). Further, "it is generally the rule, even in pro se cases, that plaintiff must bear the costs of his litigation, including expert expenses." Ross v. Coombe, 1996 WL 637756, at *2 (W.D.N.Y. Oct. 30, 1996).
Under Rule 26(b)(4)(C), "unless a manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery" of an expert's deposition before trial after that expert has submitted his or her expert report. Courts have ordered that a party pay the costs of the deposition of their own experts where, as here, that party violated discovery orders or was "egregiously late." See Arnold v. Dow Chemical, 32 F. Supp. 2d 584, 591 (E.D.N.Y. 1999)(upheld the order of a magistrate judge shifting deposition costs where the appealing party had caused "inordinate delays" in the discovery process); Byrne v. Liquid Asphalt Systems, Inc., 250 F. Supp. 2d 84, 90 (E.D.N.Y. 2003)(after Plaintiff's expert was excluded as unreliable, the Court allowed Plaintiff to obtain a new expert but ordered that because of the long delay, Plaintiff would have to cover costs of the new expert's deposition); Old Country Toyota Corp. v. Toyota Motor Distributors, Inc., 168 F.R.D. 134, 137 (E.D.N.Y. 1996) (inadequate expert report and dilatory tactics justified shifting of costs of deposing the offending party's expert witness); Reed v. Binder, 165 F.R.D. 424, 431 (D.N.J. 1996)(inadequate expert reports justified cost shifting).
Given the severe tardiness of Plaintiff's report, the Court does not find that Magistrate Judge Peck's order requiring Plaintiff to bear the costs of her expert's deposition to be contrary to law or clearly erroneous. Plaintiff was granted numerous extensions of the deadline to submit her report, and Magistrate Judge Peck clearly explained that the failure to adhere to these deadlines had consequences. Judge Peck also explained to Plaintiff that he could have excluded the expert report at the September 8, 2010 hearing, given its "egregious tardiness." It is within the discretion of the district court—and by extension, the magistrate judge supervising discovery—to preclude the testimony of an expert witness who was not timely designated. Law v. Camp, 15 Fed. Appx. 24, 26 (2d Cir. 2001)(upholding exclusion of expert witnesses where plaintiff was granted two extensions and still failed to timely comply with the discovery deadlines, despite the fact that the excluded expert testimony was essential to plaintiff's claims).
Further, the Court does not find that the exclusion of the expert report constituted an abuse of discretion by Magistrate Judge Peck. To determine whether a judge abused his discretion by excluding evidence, the Second Circuit considers "(1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the testimony, and (4) the possibility of continuance." Id.
Here, Plaintiff states that she has been "rendered indigent at multiple times directly due to the ongoing actions of the defendants in all of the related instant matters throughout the 3.5 year duration" of this and related litigations because of "repeated false arrests, bodily injury, and malicious prosecutions" as well as "lo[st] days of work." (Pl. Letter of Sept. 23, 2010). However, she does not offer any concrete basis for her failure to comply with earlier discovery deadlines that initially caused the sanction to be imposed. Further, Defendants assert that they have been prejudiced by the delays caused by Plaintiff's failure to comply with discovery deadlines, as this action has now been pending since January 5, 2008, almost three years prior to this discovery dispute. While the Court is aware that the admission of Plaintiff's expert report is important, and perhaps essential, to the viability of Plaintiff's claims, this alone does not constitute a sufficient justification for excusing Plaintiff's repeated violation of Judge Peck's discovery orders.
As a result, the Court upholds Magistrate Judge Peck's order that Plaintiff pay the costs of her expert's deposition and as well as the subsequent exclusion of her use of this expert witness.
2. Plaintiff's Federal Constitutional Claims
Construing Plaintiff's complaint liberally, Plaintiff asserts claims for medical malpractice and a violation of her due process rights under the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 against all three defendants. For the reasons set forth below, this Court finds that even if we were to consider Plaintiff's expert report (which Plaintiff submitted to this Court along with her opposition to summary judgment), Defendants are still entitled to summary judgment.
a. Standard for Summary Judgment
Under Federal Rule of Civil Procedure 56(c), a court may grant summary judgment only when there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. A court should deny summary judgment if a reasonable jury could return a verdict in favor of the non-moving party. Kraft v. City of New York, 696 F.Supp.2d 403, 412 (S.D.N.Y. 2010). In making this determination, a court must view all facts in the light most favorable to the non-moving party, resolving all ambiguities and drawing all inferences against the moving party. Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006). However, a party cannot avoid summary judgment "merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Kraft, 696 F.Supp.2d at 412(citing W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1991)).
Although pro se plaintiffs are entitled to "special latitude," when defending against summary judgment motions, McDonald v. Doe, 650 F.Supp. 858, 861 (S.D.N.Y.1986), a pro se Plaintiff must still present admissible evidence that demonstrates that summary judgment is inappropriate. Jermosen v. Coughlin, 877 F. Supp. 864, 867 (S.D.N.Y. 1999).
b. Substantive Due Process Claim for Involuntary Commitment
The Second Circuit has recognized that an involuntary civil commitment is a massive curtailment of liberty, and therefore, due process does not permit the involuntary hospitalization of someone who is not a danger to themselves or others. Kraft v. City of New York, 696 F. Supp. 2d 403, 413 (S.D.N.Y. 2010). However, a physician is not liable under § 1983 unless that physician's treatment decisions are "such a substantial departure from accepted judgment, practice, or standards as to demonstrate that [he or she] actually did not base the decision on such a judgment." Kulak v. City of New York, 88 F.3d 63, 75 (2d Cir. 1996). Further, "a physician's decision to involuntarily commit a mentally ill person because [she] poses a danger to [herself] or others shocks the conscience, thereby violating substantive due process, when the decision is based on 'substantive and procedural criteria that are substantially below the standards generally accepted in the medical community.'" Bolmer v. Oliveira, 594 F.3d 134, 143 (2d Cir. 2010)(quoting Rodriguez v. City of New York, 72 F.3d 1051, 1063 (2d Cir. 1995). However, courts have noted that due process does not "require a guarantee that a physician's assessment of the likelihood of serious harm be correct." Rodriguez, 72 F.3d at 1062.
In determining whether a physician's decision to commit someone involuntarily comports with due process, the plaintiff bears the burden of producing evidence, generally in the form of expert testimony, regarding the "applicable medical standards and the defendant's alleged failure to meet those standards." Kraft, 696 F. Supp. 2d at 413 (quoting Fisk v. Letterman, 501 F. Supp. 2d 505, 522 (S.D.N.Y. 2007). Expert testimony is required because such determinations are generally outside a layperson's realm of knowledge and "turn[] on the meaning of facts which [typically] must be interpreted by expert psychiatrists and psychologists." Fisk, 501 F. Supp. 2d at 522(quoting Olivier v. Robert L. Yeager Mental Health Center, 398 F.3d 183, 190-91 (2d Cir. 2005)).
Under § 9.39, a person may be involuntarily committed for a period of up to 15 days if that person presents a substantial risk of harm to himself/herself or others. The section notes that "the director shall admit such person pursuant to the provisions of this section only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements of this section."
In support of her claims that Defendants were wrong in committing her without an evaluation and without corroborating the NYPD's reports of her behavior, Plaintiff puts forth the expert report of Dr. Alberto M. Goldwaser, a forensic psychiatrist. Dr. Goldwaser stated that in completing his report he relied on Plaintiff's hospital records, court records from a related criminal proceeding against Plaintiff, evaluations of Plaintiff by other psychiatrists and physicians, documents regarding the status of the bar that is the subject of Plaintiff's complaints, and other correspondence related to these matters. Dr. Goldwaser also relied on his 2008 evaluation of Plaintiff's competence to stand trial in a related criminal proceeding.
The report includes a detailed summary of the records from Plaintiff's two hospitalizations at Bellevue and the reports of the NYPD. Additionally, Dr. Goldwaser's report contains a great deal of information that is not relevant to the present inquiry, such as detailed critiques of the psychiatric evaluations of Plaintiff conducted by other experts for the purpose of determining her competence in her 2008 criminal proceeding. The report further includes a detailed description of Plaintiff's current mental state as observed at a series of interviews of Plaintiff, conducted primarily in 2007 and 2008, plus one interview conducted in August of 2010. The report reiterated Plaintiff's account her admissions to Bellevue in 2006, including that she asserts she was not examined by a psychiatrist and was admitted without "any corroborating medical evidence."
Dr. Goldwaser's report stated that by "making the diagnosis that includes paranoia (a psychotic illness), without clear symptoms and signs obtained from direct observation" that the actions of the Defendants caused the Plaintiff harm to her credibility and "may be interfering with the legal process." It noted that Plaintiff's "fervent and metaphorical style" can bring about misinterpretations of her behavior and should not have been considered indicative of paranoia upon a "proper psychiatric exam." The report concluded: "it is my opinion with a reasonable degree of medical/psychiatric certainty that the psychiatric treatments provided to [Plaintiff] on March 8th and 15th, 2006 at Bellevue Hospital Center, departed from accepted standards of medical/psychiatric care, and were the proximate cause of psychological affliction for [Plaintiff], having been repeatedly labeled as a 'Mentally Ill Incapacitated' person." (Plaintiff's Expert Report at 22.)
Dr. Goldwaser's report is not sufficient to raise a genuine issue of material fact as to whether the treatment provided by Defendants on March 8 and 15, 2006 fell substantially below medical standards. First, the report does not include discussion (or even mention) of any medical standards governing emergency admissions. It lacks any discussion of the basic treatment procedures for psychiatric patients in determining whether a patient presents a danger to herself or others for the purpose of assessing whether an emergency involuntary commitment was warranted. Further, it does not include any information about the duties of a physician to investigate the underlying details of a psychiatric patient's admission or corroborate the reports of third party witnesses. In its conclusion, Dr. Goldwaser only states that defendants' decisions "departed from accepted standards of medical/psychiatric care;" he does not conclude that the treatment decisions constituted a "substantial departure" from such standards, as required by case law.
In fact, Dr. Goldwaser's report does not even mention the language or requirements of Section 9.39.
Courts have routinely granted summary judgment where, as here, a plaintiff proffers expert testimony that fails to adequately set forth medical standards and analyze a physician's treatment decisions in light of those standards. In Kraft v. City of New York, the district court granted summary judgment against the plaintiff where the medical expert failed to conclude that a physician's decision to involuntarily commit the Plaintiff fell substantially below accepted medical standards. 696 F. Supp. 2d at 413. The report produced in Kraft was deemed insufficient where it "largely consist[ed] of questions and disagreements" about the doctor's observations, diagnoses and subsequent actions. Notably, the report "d[id] not identify any standards from which [the defendants' treatment decisions] departed" and provided no evidence that the doctors there were wrong to rely on the information provided to them in diagnosing and committing the plaintiff. Id. Similarly, in Kulak v. City of New York, the Second Circuit upheld the district court's grant of summary judgment against plaintiff where the expert concluded that a treatment decision "fell below minimally acceptable practice" but failed to "assert that it was substantially below accepted professional judgment for the treating physician" to diagnose the plaintiff as manic or psychotic. Kulak, 88 F.3d at 75-76.
In contrast, the Second Circuit reversed a district court's grant of summary judgment against plaintiff where the plaintiff's expert witness discussed the applicable professional standards and a factual dispute existed regarding the applicable standards and whether defendant's conduct fell substantially below these standards. Rodriguez, 72 F.3d at 1063-64.
Here, as in Kraft and Kulak, Plaintiff's expert report does not describe any professional standards governing the involuntary admission of a patient for psychiatric care. The majority of the report is unrelated to the Defendants' treatment decisions made upon Plaintiff's arrival at Bellevue. Moreover, the report fails to distinguish between the actions and treatment decisions of the three defendants in reaching the general conclusion that all three departed from the standard of care.
Additionally, an expert's mere disagreement with the diagnosis of the treating physician is insufficient to raise a material issue of fact regarding the physician's treatment decisions. Id. Here, Dr. Goldwaser disagrees with Defendants' diagnoses and concludes that Plaintiff did not suffer from a psychotic illness. That Dr. Goldwaser reached a different conclusion about Plaintiff's mental health in his examination of her years later does not provide any basis for a juror to conclude that Defendants' decisions on March 8 and March 15, 2006 were not objectively reasonable.
Significantly, the report does not even conclude that the decisions were "substantially below" such standards, as required by case law to avoid summary judgment. As the Second Circuit has noted, "bare denials" by a plaintiff's expert witness are insufficient to raise an issue of material fact regarding whether a physician's treatment decisions fell below generally accepted professional standards. DeMarco v. Sadiker, 199 F.3d 1321 at *3 (2d Cir. 1999). See also Algarin v. NYC Dept of Correction, 460 F. Supp. 2d 469, 476 (S.D.N.Y. 2006)(finding summary judgment appropriate where plaintiff's expert failed to provide discussion of generally accepted medical standards in concluding that physicians failed to meet minimum standards for involuntary commitment). Dr. Goldwaser's report provides no basis for a reasonable juror to determine the relevant medical standards governing involuntary admissions, and therefore it could not allow a reasonable juror to conclude that the defendants' treatment decisions fell substantially below such standards.
For these reasons, the expert report of Dr. Goldwaser put forth by Plaintiff in support of her claims is insufficient to create a disputed issue of material fact regarding the treatment decisions of the Defendants.
2. Plaintiff has failed to state a claim for violation of her substantive due process rights.
Given the exclusion of Plaintiff's expert report from evidence and the inadequacy of that report even if it was accepted, Plaintiff's only remaining arguments rest on her allegations of substandard care by Defendants. The Court finds that this is not the rare case where expert evidence is not necessary, and Plaintiff's allegations are insufficient to survive a motion for summary judgment. See Olivier v. Robert L. Yeager Mental Health Center, 398 F.3d 183, 190 (2d Cir. 2005)("Because Olivier did not introduce expert testimony as to medical standards, there was no legally sufficient evidentiary basis" to allow plaintiff to succeed on his claims); Kraft, 696 F. Supp. 2d at 413 (holding that in the absence of evidence regarding defendant's failure to meet medical standards, summary judgment is appropriate).
Plaintiff offers two major arguments to this Court in support of her claims. First, she contends that, contrary to the requirement of NY MHL 9.39, she was involuntarily committed without any personal examination by the staff psychiatrist, Defendant Dr. Lowe. Second, she contends that all three doctors failed to sufficiently investigate the veracity of the police reports and her complaints against the bar in her neighborhood, as such investigation would have revealed that she was not actually paranoid or delusional.
However, Plaintiff has failed to provide more than her mere accusations in support of her claims. In a similar case, Hogan v. A.O. Fox Memorial Hospital, the plaintiff also alleged that she was not examined prior to her involuntary commitment but produced no expert report establishing that this decision constituted a substantial departure from generally accepted medical standards. The Second Circuit found the plaintiff's allegation insufficient without "evidence as to the generally accepted medical practices applicable to a physician's recommendation of involuntary commitment." 346 Fed. Appx. 627, 2009 WL 297870 at *2 (2d Cir. Sept. 18, 2009). Even accepting Plaintiff's allegation as true, here, as in Hogan, mere allegations of a violation of §9.39 are insufficient to sustain a claim under § 1983.
Further, Defendants have offered evidence that their conduct was appropriate and in compliance with the requirements of §9.39 and professional medical standards. Defendants' expert Dr. Paul Nasser, reviewed the records of Plaintiff's admission to Bellevue and concluded that she "received treatment that met the standard of care in the medical community." Dr. Nasser further concluded that based on the information available to them (including the NYPD and EMS reports, staff observations, and Plaintiff's refusal to cooperate), Defendants were reasonable in concluding that the Plaintiff posed a danger to others and required continued care and observation on an involuntary basis. (Nasser Affidavit at ¶¶5-11.)
Further, while Plaintiff disputes the truth of the police reports and alleges that the police conspired against her in making such reports, Plaintiff does not dispute that on both March 8 and March 16, 2006, Bellevue's staff was informed by NPYD and EMS workers that Plaintiff had displayed irrational behavior, paranoid thinking, excessive use of 311 and 911 lines and intense anger. Even assuming the NYPD and EMS reports were false, Plaintiff does not offer any evidence that the doctor defendants should have known that these reports were unreliable. See Kraft, 696 F. Supp. 2d at 414; Fisk, 501 F. Supp. 2d at 522.
While Plaintiff denies being "uncooperative" and states that she was calm throughout both visits, hospital records completed by staff members other than defendants note that she at times she refused to communicate with Bellevue staff, was uncooperative, and spoke frequently about the illegal bar. (See Silverberg Ex. A at SB 0114, 106, 0065, 0066.) These observations corroborated the NYPD reports, and it is uncontested that such reports were reviewed by Defendants in making treatment decisions. Plaintiff has cited to no authority in support of her contention that a physician must corroborate police reports or third party accounts where there is no indication they are unreliable. The evidence presented to the Court on summary judgment supports a finding that the doctors had objectively reasonable grounds to believe that Plaintiff was a danger to the community or herself. See Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993). Therefore, the Court grants Defendants' motion for summary judgment on Plaintiff's claims that her substantive due process rights were violated.
c. Fourth Amendment Claim
Plaintiff's claims that her Fourth Amendment right against unreasonable search and seizure were violated by Defendants also fail. Courts in this circuit have held that an involuntary commitment does not constitute a violation of the Fourth Amendment so long as the defendants were objectively reasonable in believing that the person was a danger to herself or others. The Fourth Amendment requires a showing that dangerous behavior was probable or substantially possible, not an actual showing that dangerous behavior occurred. Fisk, 501 F. Supp. 2d at 526. For the reasons stated above, this Court finds that Defendants were objectively reasonable in believing that Plaintiff was a danger to herself or others. See Anthony v. City of New York, 339 F.3d 129, 141-43 (2d Cir. 2003).
Further, to the extent Plaintiff argues that she was forcibly required to undergo blood and other medical tests during her admissions at Bellevue in violation of her Fourth Amendment rights, this claim also fails. The Supreme Court has held that warrantless blood and urine tests conducted to detect drug use are reasonable and therefore constitutionally permissible when justified by "special needs" beyond a law enforcement purpose. Id. The medical tests conducted by Defendants did not serve any law enforcement purpose but were administered to rule out substance abuse and other organic conditions that could have explained Plaintiff's delusional and paranoid behavior. Therefore, these tests were constitutionally permissible and do not constitute a violation of the Fourth Amendment. Id. (quoting Supreme Court precedent).
3. Plaintiff's State Law Claim for Medical Malpractice
Finally, Plaintiff asserts claims of medical malpractice against all three defendants based on their treatment decisions related to Plaintiff's involuntary commitments to Bellevue on March 8 and March 16, 2006. Under New York law, the elements of a medical malpractice claim are: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage." Berk v. St. Vincent's Hospital and Medical Center, 380 F. Supp. 2d 334, 342 (S.D.N.Y. 2005). The Second Circuit has noted that "[i]n order to show that the defendant has not exercised ordinary and reasonable care, the plaintiff ordinarily must show what the accepted standards of practice were and that the defendant deviated from those standards or failed to apply whatever superior knowledge he had for the plaintiff's benefit" through expert testimony. Id. (citing Sitts v. United States, 811 F.2d 736, 739-40 (2d Cir. 1987)). As discussed above, even if the Court considers Plaintiff's excluded expert testimony, it fails to set forth relevant medical standards required to sustain a claim for medical malpractice.
Moreover, where, as here, a defendant can "proffer any evidence to support the view that a proper standard of care was followed, the plaintiff cannot prevail without introducing expert medical testimony." Id. Therefore, Defendants' submission of an affidavit from Dr. Paul Nasser asserting that Defendants followed generally accepted medical standards further undermines Plaintiff's claims. For these reasons, Plaintiff "cannot prevail" on her claims for medical malpractice against any defendant.
For these reasons, the Court finds that no reasonable jury could conclude that Defendants violated Plaintiff's constitutional rights or committed medical malpractice. Therefore, Defendants' motion for summary judgment is GRANTED in its entirety.
CONCLUSION
For the reasons stated above, Defendants' motion for summary judgment is GRANTED. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to terminate the motion (docket entry #52) and close the case. SO ORDERED:
/s/ _________
BARBARA S. JONES
UNITED STATES DISTRICT JUDGE Dated: New York, New York
August 30, 2011