| VanBrocklen v Erie County Med. Ctr. |
| 2012 NY Slip Op 04479 [96 AD3d 1394] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| Russel VanBrocklen, Respondent, v Erie County Medical Center,Appellant. |
—[*1]
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), enteredFebruary 4, 2011. The order, insofar as appealed from, denied in part the cross motion ofdefendant for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff was brought by ambulance to defendant, Erie County MedicalCenter, after suffering a severe panic attack at a movie theater. During the ensuing few hours oftreatment administered to plaintiff in defendant's psychiatric unit, a doctor ordered injections ofHaldol and Ativan, which were administered to plaintiff without his consent. In commencing thisaction, plaintiff asserted claims sounding in, inter alia, intentional infliction of emotional distress,medical malpractice, battery, and the violation of his constitutional rights. Supreme Courtgranted defendant's cross motion for summary judgment dismissing the complaint with theexception of the battery and constitutional claims. We reject defendant's contention that the courtshould have granted its cross motion in its entirety.
Contrary to defendant's contention, the claims asserting the complete absence of consent, asopposed to those asserting that defendant exceeded the scope of plaintiff's consent, properly maybe treated as claims for battery rather than for medical malpractice. It is well settled that amedical professional may be deemed to have committed battery, rather than malpractice, if he orshe carries out a procedure or treatment to which the patient has provided "no consent at all"(Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d 32, 35 [2001]; see Wiesenthal v Weinberg, 17 AD3d270, 270-271 [2005]; Cross vColen, 6 AD3d 306, 307 [2004]). With respect to plaintiff's battery claims, we concludethat defendant failed to meet its initial burden of establishing that it "did not intentionally engagein offensive bodily contact without plaintiff's consent" (Guntlow v Barbera, 76 AD3d 760, 766 [2010], appealdismissed 15 NY3d 906 [2010]; see generally CPLR 3212 [b]). The medical recordsand affidavits submitted by defendant do not dispute that its agents intentionally contactedplaintiff's person when administering the injections, nor do they dispute that those injectionswere administered without his consent. Likewise, defendant failed to establish that the injectionswere non-offensive in nature, i.e., that they were not " 'wrongful under all the circumstances' "(Messina, 284 AD2d at 35). Thus, the court properly denied those parts of defendant'scross motion with respect to the claims for battery.[*2]
As to plaintiff's constitutional claims, we note thatdefendant, as a public hospital, is a state actor (see Vanbrocklen v Gupta, 2010 WL5575325, *2-3, 2010 US Dist LEXIS, *6-10 [WD NY 2010]; cf. Nedd v Queens Hosp.Ctr., 2008 WL 2497428, *2, 2008 US Dist LEXIS 46235, *3-6 [ED NY 2008]), and that dueprocess protects the "fundamental right [of psychiatric patients] to refuse antipsychoticmedication" (Rivers v Katz, 67 NY2d 485, 492 [1986], rearg denied 68 NY2d808 [1986]; see Kulak v City of New York, 88 F3d 63, 74 [1996]). Under thecircumstances of this case, in which the medication was administered before there was a "judicialdetermination of whether [plaintiff had] the capacity to make a reasoned decision with respect toproposed treatment" (Rivers, 67 NY2d at 497), defendant could lawfully administer themedication without consent only if plaintiff was "presently dangerous and the proposed treatment[was] the most appropriate reasonably available means of reducing that dangerousness" (14NYCRR 527.8 [c] [1]). A patient is considered "dangerous" in this context if he or she "engagesin conduct or is imminently likely to engage in conduct posing a risk of physical harm tohimself[, herself] or others" (14 NYCRR 527.8 [a] [4]; see Rivers, 67 NY2d at 495-496).
Defendant failed to establish its entitlement to judgment as a matter of law on plaintiff'sconstitutional claims inasmuch as it failed to demonstrate that, at the time plaintiff received theinjections, he was "engag[ing] in conduct or [was] imminently likely to engage in conduct posinga risk of physical harm to himself or others" (14 NYCRR 527.8 [a] [4]; see Kulak, 88F3d at 73-75; see generally CPLR 3212 [b]). The medical records do not indicate thatplaintiff was unruly, uncooperative, or belligerent, and they in fact suggest that plaintiff'sbehavior was unremarkable. Additionally, the affidavit of the physician who ordered theinjections is ambiguous regarding his rationale for doing so. Specifically, many of the physician'sstatements suggest that he ordered the injections to treat plaintiff's psychiatric condition,not because he believed that plaintiff posed a risk of harm to himself or others. Becausedefendant failed to establish as a matter of law that it had a lawful basis for medicating plaintiffwithout his consent, it failed to establish its entitlement to summary judgment dismissingplaintiff's constitutional claims (see generally 14 NYCRR 527.8 [c] [1]; Rivers,67 NY2d at 492-497; Kulak, 88 F3d at 73-75). Present—Scudder, P.J., Centra,Lindley, Sconiers and Martoche, JJ.