This is an action for damages for wrongful death of Gary Lichtenstein, husband of plaintiff Ruth Lichtenstein. Plaintiff alleges that Gary’s death was caused by the negligence of defendant-appellant, Montefiore Hospital and Medical Center (hereinafter "hospital”), in permitting Gary to escape ("elope”) from an open psychiatric unit at the hospital, as a result of which, plaintiff alleges, Gary committed suicide a few hours later by jumping under a subway train. The jury rendered a verdict in favor of plaintiff against the hospital and against two physicians, Drs. Schneider and Penziner. The Trial Judge thereafter dismissed the complaint as against the doctors, and although plaintiff filed a notice of appeal from that dismissal, plaintiff is not pressing that appeal The hospital appeals from the judgment against it.
As to the claim against the hospital, plaintiff does not
At 11:30 of the morning of August 16, 1966, Gary was found to be missing from the unit. At about 4:30 p.m. that day his body was found under a subway train.
There was no evidence as to the circumstances in which Gary left the psychiatric unit in the hospital. In our view, there was thus no evidence that the hospital was negligent.
Plaintiff’s position on this point appears to be that negligence may be inferred from the fact that Gary left the facility without authorization. We do not agree. At least in the case of an open psychiatric unit, the mere fact that a patient leaves secretly and without authority is not evidence of negligence on the part of the hospital This is not a res ipsa loquitur case. This was an open psychiatric unit, not a maximum security prison, or a bank vault, or a closely guarded military installation. The nurse was a nurse, not a sentinel. Obviously any number of perfectly legitimate incidents could have occurred that would momentarily distract the nurse’s attention—someone asking for a direction, a patient needing momentary assistance, etc.—and during that distraction, a patient dressed in street clothes like visitors etc., and intent on leaving the unit, could slip through the unlocked door without any negligence on the part of the hospital. Accordingly, we think the fact that the patient left is not evidence of negligence on the
We think also that the form of the special interrogatory on this issue, as posed to the jury, unduly narrowed and distorted the issue. The relevant issue as to negligence was whether the hospital used reasonable care in the care of the patient pursuant to the psychiatrists’ directions, the reasonableness to be judged relative to all the circumstances, including the foreseeability and severity of the actual risk of suicide in the medical judgment of the psychiatrists ("[t]he risk reasonably to be perceived defines the duty to be obeyed,” Palsgraf v Long Is. R.R. Co., 248 NY 339, 344 [1928]), and the desirability of permitting the patient to benefit from the therapeutic value of an open unit. Although the court discussed these factors, the formulation of the special question to the jury on the issue of negligence perhaps obscured these factors and could easily have led the jury to concentrate on the narrow question as to the adequacy of the precautions taken to prevent the patient from leaving the hospital without reference to other circumstances bearing on reasonableness. Thus the question submitted to the jury on this issue was, "Were the defendants negligent in permitting Gary Lichtenstein to leave the hospital on August 16, 1966?” This was accentuated by the court’s charge to the jury that "the law says that the hospital was under a duty to use reasonable care to prevent Mr. Lichtenstein from escaping from its facility.”
In our view, furthermore, the verdict was grossly excessive, being $400,000 (which with interest came to $638,000 by the time of the judgment). The statute limits damages in wrongful death cases to "fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought.” (EPTL 5-4.3.) Here, decedent was 20 years old, a student in his third year in college and suffering at the time from an acute and incapacitating mental illness. He was not and never had been self-supporting. His wife, of the same age, was self-supporting. They had been married six months at the time he went into the hospital. The only other person for whose benefit the action was brought was the decedent’s father, then aged 66 and retired, and to whose support decedent apparently had never contributed. In these circumstances, an appraisal of the pecuniary loss at $400,000 was much more speculative than
While dismissal of the complaint would be consistent with our view that there is no evidence of negligence, we have the discretion to order a new trial. (Brown v Rosenbaum, 259 App Div 304 [1940].) We think the interests of justice would be better served by ordering such a new trial. The parties will thus have a further opportunity to present evidence, if they can, as to the circumstances of Gary’s leaving the hospital.
As there is to be a new trial, we set forth our views as to certain of the disputed questions in the case:
If it is shown that decedent, shortly or a few days before his death, expressed the intention to commit suicide by jumping under a train and his body was a short time later found under a train, we think the jury could infer—as indeed the doctors did—that the death was due to suicide.
On the question of proximate cause: If the danger (from the patient’s leaving) foreseen and to be guarded against by the hospital was suicide and the hospital failed to use reasonable care—reasonable being determined in the light of the circumstances discussed above—to safeguard the patient against escape and suicide, and if as a result of that lack of reasonable care, the patient escaped and suffered the very harm foreseen and to be guarded against—suicide—then the jury could reasonably find that the hospital’s negligence was a proximate cause of the suicide. (Cf. Restatement Torts 2d, § 449.)
We agree with the Trial Judge in his exclusion of the written report of the social worker, Miss Genetos, for the reason that the written report was not made until almost a year after the conversation reported and was thus not made within a reasonable time after the event recorded, and thus did not qualify within the business entry rule. (CPLR 4518, subd [a].) However, the conversation between the social worker and plaintiff wife was not excludable as a confidential communication under CPLR 4508 for the reasons that the plaintiff wife was not the social worker’s "client” and, perhaps, in any event, the confidentiality was waived by the bringing of this lawsuit.
We also think that the notation on the hospital record made by the doctors under "Final Diagnosis,” "Death by suicide after elopement from hospital,” was admissible in evidence. We think that in the case of a psychiatric patient as to whom the doctors, as part of their diagnosis and treatment, had
The judgment of the Supreme Court, Bronx County (Sidney Rosen, J.),. entered July 23, 1976, in favor of the plaintiff against defendant-appellant Montefiore Hospital and Medical Center in the sum of $638,391.50, and dismissing the complaint against defendants Schneider and Penziner, should be modified on the law and the facts so as to reverse the judgment as against Montefiore Hospital and Medical Center, and a new trial ordered as to said defendant, and the jury’s findings on the special verdict should all be vacated, and the judgment otherwise affirmed, with costs to abide the event.
The appeal from the order entered June 10, 1976, denying the motion to set aside the verdict, should be dismissed, as moot.