Schizophrenic Patient Under Loose Observation Escapes Psychiatric Center And Commits Murder
	"This Place Is Making Me Nervous I Don't Have to Be Here"
	Is the State Guilty of Medical Malpractice for Allowing the Patient to Escape?

Nurses, like all professionals, are routinely called upon to exercise their professional medical judgment in the exercise of their duties of patient care. Occasionally, such judgment is later found to be wrong after a tragedy has occurred. Therein lies the cause for medical malpractice which is usually a battle between expert witnesses. Juries are deemed competent to determine common-law negligence, but to determine medical malpractice they need the help of expert witnesses. Plaintiff failed to present such expert testimony in this instance and lost the case.

Facts: On August 9, 1985, John W. Kugler, Jr. was arrested in the Town of Hebron, Washington County, New York, and charged with assault in the third degree, a class A misdemeanor (Penal Law 120.00). Kugler had previously been hospitalized for two months at the Central New York Psychiatric Center at Marcy, New York, from February 14, 1984 to April 13, 1984. He was there diagnosed as suffering from "schizophrenia, undifferentiated, chronic with acute exacerbation." While in custody in the Washington County Jail, Kugler engaged in bizarre behavior (e.g., drinking from the urinal). As a result, the Hebron Town Justice issued an order of examination pursuant to CPL 730.30.

In accordance with such order, two psychiatrists independently examined Kugler and determined that he was schizophrenic and incompetent to assist in his own defense in the pending criminal matter. Based upon the reports of both psychiatric examiners, the local criminal court issued a final order of observation pursuant to CPL 730.40, committing Kugler to the custody of the Commissioner of Mental Hygiene for care and treatment for a period not to exceed 90 days.

On September 12, 1985, under the authority of the final order of observation, the Bureau of Forensic Services of the Office of Mental Health determined that Kugler should be committed to the Capital District Psychiatric Center (CDPC.) Upon his admission to CDPC, Kugler was placed in an open (unlocked) unit and his staff psychiatrist, Flor Bissonette, M.D., initially placed him on "close" observation status. Thereafter, Dr. Bissonette ordered Kugler's observation status changed to less restrictive Level I on Septermber 13, 1985, and to still less restrictive Level II on September 23, 1985. A patient on close observation is constantly observed by an attendant, a Level I patient is not allowed to leave the unit and requires observation about every 30 minutes, and a Level II patient may go to activities outside the unit only when accompanied by an escort.

During the week preceding Kugler's escape on September 24, 1985, Dr. Bissonette recorded in her physician's progress notes that Kugler threatened to become violent if he was not discharged. Hostile behavior was also noted in two nursing notes, but he never actually assaulted anyone at CDPC. At 11:30 A.M., on September 24, 1985, Kugler again requested of Dr. Bissonette that he be discharged stating that "this place is making me nervous  I don't have to be here." At this time, Dr. Bissonette also recorded that Kugler was exhibiting" some incoherence with no insight to his problem, lack of sound judgment and resistance to taking medication." At 2:00 P.M. of that day the CDPC staff were unable to locate Kugler, who had apparently left by walking out the door of the open unit. On Oct. 27 Kugler murdered Ronald A. Amadon.

In this action, claimant seeks damages for the State's negligence (1) in permitting Kugler to escape from CDPC and (2) in not taking appropriate action to require Kugler's return to New York after he was located in Vermont and the Vermont State Police refused to take him into custody.

Court Decision: The court finds that the grave man of this cause of action relates solely to the placement of Kugler in an open unit and to the level of care and supervision accorded him. The decision as to which program to place a patient in or which level of care to place him on is "a medical judgment for which no liability may be imposed."

The State cannot be held liable for allowing a psychiatric patient at a State facility to escape and eventually kill claimant's decedent based upon the alleged negligence of the State in placing the patient in an open unit with a reduced level of observation since claimant failed to introduce any expert medical opinion testimony to the effect that the assessment of the patient's condition and/or the determination of the degree of supervision required was a departure from accepted standards of medical practice. The decisions of the State's professional employees with respect to their assessment of the patient's condition and the degree of supervision required by such condition involved matters of professional medical judgment and a cause of action based upon the patient's placement must therefore be deemed to sound in medical malpractice rather than in common-law negligence. Since jury or other truer of the facts ordinarily is not deemed to possess sufficient knowledge, training, or experience to pass judgment on questions of medical science or practice, expert testimony is required to make out a prima facie case, and claimant failed to introduce such testimony.

The State cannot be held liable for the murder of claimant's decedent by an escaped psychiatric patient due to its alleged failure to take proper follow-up action to require the patient's return to New York after he was located in Vermont since the State's alleged negligence in failing to properly administer, implement and enforce the Interstate Compact on Mental Health a governmental and not a proprietary function, cannot give rise to liability in the absence of a special relationship creating a duty to exercise care for the benefit of a particular class of individuals and the statute involved and the facts of the case create no such special relationship. Claimant introduced no definitive evidence with respect to the proper manner of implementation of the statute; further, there was no direct contact between agents of the State and claimant's decedent upon which a special duty could be predicated.

Amadon v. State of New York, 149 Misc. 2d 383; 565 N.Y.S2d 677; 1990 N.Y. Misc.

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