Prepared by James Stewart December 8, 2010
for C. Frank Davis (part B of Litigation II final examination)
Estate of Manson v. Malum Psychiatric Hospital
(Draft Memorandum)
CLAIM S.O.L.
February 15, 2011
The Parties
• New York State Office of Mental Health
• The Estate of Manson
• Malum Psychiatric Hospital
• Get Well + Clearview Hospitals
Standing to Sue
As administrator of the estate, standing to sue for the decedent is proper under
EPTL § 5-4.1.
Upon receiving leave of the Court of Claims for a late Notice of Claim, General
Municipal Law § 50-e, we will have standing to sue in the Court of Claims.
From the intake, it would appear that Mr. Manson was a resident of Queens
County. Therefore, we will preliminarily say that we will also have standing to sue in the
Supreme Court of the County of Queens on the basis of damages being in excess of the
jurisdictional minimums in the lower courts.
Problem Areas and Underlying Strategies
⇓ Decedent passed away on August 16, 2008.
Ψ As of the date of this case outline, 843 days (or approximately 120 weeks)
have passed.
CONFIDENTIAL – Attorney Work Product – Not for Disclosure 1|Page
Prepared by James Stewart December 8, 2010
for C. Frank Davis (part B of Litigation II final examination)
Ψ Statute of limitations has passed for all applicable causes of action except
for MEDICAL MALPRACTICE (CPLR § 214-a) and BREACH OF CONTRACT
(CPLR § 213).
⇓ A late Notice of Claim will need to be filed before commencement of the suit. (Court
of Claims Act § 10[6])
Ψ Application for nunc pro tunc treatment should be made according to §
10(8).
Ψ We must demonstrate good cause for this late filing (ie., emotional distress
of the wife of the decedent.)
Ψ A successful application will demonstrate a likelihood of success on the
merits.
⇓ Adding the private hospitals complicates this litigation, perhaps unnecessarily:
There is no clear evidence implicating them as of yet, it seems unlikely that they
may be implicated, and they may file for sanctions under 22 NYCRR 130-1.1 for
involving them in this litigation.
⇓ If a criminal negligence proceeding commences related to this action, the entire
theory underlying this case and the various statutes of limitation need to be re-
evaluated.
Jurisdiction and Service of Process
⇓ Psychiatric state hospitals are run by the “New York State Office of Mental Health”. 1
⇓ The courts may decide to separate the trials based on the non-municipal status of
some of the defendants, and place some of the plaintiffs into Supreme Court in a
separate action.
⇓ NY State Ofc. Of Mental Health: Service upon assistant attorney general by certified
mail, return-receipt requested, and designation of “URGENT LEGAL MAIL” on front
of envelope. (See CPLR 307)
1
Based on the information in the intake summary, the presumption for this memo will be that the hospital is a
State hospital, run by the Office of Mental Health, and that the City of New York is not a party to this action.
CONFIDENTIAL – Attorney Work Product – Not for Disclosure 2|Page
Prepared by James Stewart December 8, 2010
for C. Frank Davis (part B of Litigation II final examination)
⇓ Malum Psychiatric: Identical to NY State Ofc. Of Mental Health, but served upon the
CEO of the hospital.
⇓ Get Well + Clearview Hospitals: Serve under CPLR 311.
Venue
⇓ Two actions should be filed: One in the Court of Claims, and one in the Supreme
Court, County of Queens. The NY State Office of Mental Health and Malum
Psychiatric may attempt to assert that jurisdiction is only proper in the Supreme
Court, and vice versa. Filing a claim in both courts will preserve our clients’ rights
given the short amount of time remaining between now and the SOL.
⇓ Court of Claims is potentially a proper venue for this action, as the State is a party
to the action.
Ψ WARNING: The private plaintiffs in this action may be split off by the court
into a separate action because of jurisdictional issues with the Court of
Claims. Defendants of the private hospitals may argue that the court lacks
jurisdiction to hear any aspects of the case involving them as they are not
being sued by the state.
⇓ If the private parties are to be joined in one action, the pleading needs to argue that
their actions contributed to the damages suffered by the Plaintiff, and that their
joinder in this action is necessary.
Ψ If we are not able to successfully sustain a malpractice cause of action
against the private parties, will we be able to keep them joined in this action
on the theory of comparative negligence?
⇓ Additionally, we will file in the Supreme Court of the County of Queens, on the basis
of Mr. Manson’s pre-hospitalization residency and the residency of Ms. Manson
(the administratrix).
CONFIDENTIAL – Attorney Work Product – Not for Disclosure 3|Page
Prepared by James Stewart December 8, 2010
for C. Frank Davis (part B of Litigation II final examination)
Cause(s) of Action
⇓ Breach of Contract
Ψ There is the possibility that Get Well + Clearview Hospitals did not
communicate the patient’s medical history properly to Malum Psychiatric.
Ψ They may have contributed to the untimely death of the decedent in this
case by impeding Worse’s ability to properly diagnose and treat the
decedent.
Ψ It is highly unlikely that we will succeed on this theory, and careful
investigation needs to be made prior to proceeding on this theory.
⇓ Medical Malpractice
Ψ Under the Court of Claims Act, § 10(6), time to file for this cause of action
may be extended to the 2 yr. 6-month statutory limit.
⇓ Wrongful death and conscious pain and suffering, negligent infliction of emotional
distress: Again, the statute of limitations have expired in these instances. We will
plead them anyway in the eventuality that opposing counsel does not move to
dismiss these causes of action.
Damages
• Actuarial in nature, based on the income sources of the decedent.
• Punitive damages: Will need documentary evidence showing gross negligence on
the part of the defendants.
• Generally, see CPLR § 4546. (Does the decedent have any significant IRS liens, or
backtaxes issues? Now would be a good time to find out.)
Discovery / Disclosure
By all means, invoke CPLR § 3102 (particularly paragraph (e)!)
DEPOSITIONS (Articles 31 and 45, generally, of the CPLR)
• CEO of Malum Psychiatric Hospital
CONFIDENTIAL – Attorney Work Product – Not for Disclosure 4|Page
Prepared by James Stewart December 8, 2010
for C. Frank Davis (part B of Litigation II final examination)
o Eliciting testimony in regards to hospital’s problems, and why it is under
state supervision
• Mr. Manson’s Psychiatric Team
o Eliciting testimony in regards to quality of care, and supporting elements of
theory of medical malpractice
• Mr. Manson’s Nurse(s)
• The resuscitating physician
o Elicit testimony about what the physician saw upon discovering the patient
• Forensic Medical Experts
o Testimony in regards to the physiology of asphyxiation; time for the heart
muscle to become irreparably damaged (and thus establishing maximum
amount of time patient was unnoticed by staff)
• Actuary
o Testimony in regards to the damages incurred by the Estate as a result of
the decedent no longer having an ability to generate income
MEDICAL RECORDS AND HOSPITAL RECORDS
• Mr. Manson’s medical records from all facilities
o Review documents, and add to deposition/witness list any person on the
records not already on the list
• Mr. Manson’s hospital records from all facilities
o Ensure certifications (sworn affidavit of custodian) is in order as per CPLR
3122-a
• Per CPLR § 4517, any previous litigation against Malum Psychiatric for similar
issues/fact patterns should be researched and prepared for use at depositions and
at trials.
CONFIDENTIAL – Attorney Work Product – Not for Disclosure 5|Page
Prepared by James Stewart December 8, 2010
for C. Frank Davis (part B of Litigation II final examination)
PROCEDURAL OUTLINE
As a means of hedging our bets in regards to the multiple parties, and the fact that
the Court of Claims is in Albany, we should also file suit in the County of Queens, in the
Supreme Court, for the same causes of action. Therefore, we should obtain Index
Numbers for both courts.
BEFORE ANYTHING ELSE HAPPENS:
File an Order to Show Cause to obtain as much disclosure as possible from Malum
Psychiatric under CPLR § 3102(c) – in particular, any documentation relating to Malum
Psychiatric Hospital’s issues with regards to patient deaths, and with the physical
relationships between the decedent’s hospital room and the location of any and all
doctors’ and nurses’ stations. How far was the nearest nurse from the location of the
decedent’s last reported location? Where did the decedent get the tape, and plastic bag?
How often did nurses come by to check up on patients, in general? Was the door to the
decedent’s room lockable from the inside? Why did Malum Psychiatric repeatedly switch
the decedent’s prognosis, and why was he not on suicide watch the day of his death?
Also: WHAT DID MS. MANSON SAY TO THE RESUSCITATION PHYSICIAN? We need to
get her on the phone yesterday to get the answer to that question.
After obtaining leave to file a late claim, we should serve the Notice of Claim and
anticipate the 50-h hearing.
In the other action (Supreme Court forum), we should file a Summons with Notice
and wait to see how the other action plays out. We will undoubtedly receive an Answer,
and a Demand for Complaint, and will be bound by the time limits in which to respond.
We should serve the Complaint either after the 50-h hearing, or before the Demand for
Complaint is due – whichever comes sooner.
Because this is a medical malpractice action, we must not indicate any dollar
amounts in our Summons with Notice.
CONFIDENTIAL – Attorney Work Product – Not for Disclosure 6|Page
Prepared by James Stewart December 8, 2010
for C. Frank Davis (part B of Litigation II final examination)
In the 50-h action, the Notice of Claim must set forth the very specific reasons for
our suit, and the particularities of this case. We should re-interview our client prior to
drafting and filing the Notice of Claim.
The Complaint should of course be verified, and all responsive pleadings served by
the other parties should be checked that they are verified as well.
We should anticipate having an actuarial study of the damages to which the Estate
is entitled, as well as initial assessments of any other costs that may be chargeable to the
Defendants’ in this case in anticipation of receiving a Demand for a Bill of Particulars.
Once we have exchanged pleadings with all parties, we should file the RJI
(assuming we do not encounter a Motion to Dismiss pre-answer) and request a
preliminary conference to set out the discovery timeline in this case.
CPLR § 3406 tells us we need to file a special notice for the medical malpractice
aspect of our action with the courts, and serve this notice on all the other parties.
With respect to the pre-calendar conference, the Note of Issue shall be filed and
properly served at the appropriate time as per CPLR § 3402. A jury demand should be
made.
In regards to the statement made by Ms. Manson to the resuscitating physician, we
should find out what she said sooner rather than later. If it can be used by the other party
to imply before a jury that Ms. Manson was a contributory factor in Mr. Manson’s death,
then we should move to suppress that hearsay evidence by whatever means possible.
More than likely such evidence will fall under the ‘hearsay exception’, and we should
research our ability to challenge such a statement and assert that the statement is
privileged. Perhaps CPLR § 4504(c) can be of some use to us here.
Additionally, we should make a Motion in Limine to prevent the issue of Mr.
Manson’s criminal accusations from being introduced in open court before the jury. At the
very least, the exact charges and accusations should be withheld as they will undoubtedly
prejudice the jury.
CONFIDENTIAL – Attorney Work Product – Not for Disclosure 7|Page
Prepared by James Stewart December 8, 2010
for C. Frank Davis (part B of Litigation II final examination)
VOIR DIRE STRATEGY
We would ideally like single mothers, widows, people who enjoy the song ‘Helter
Skelter’ by the Beatles, etc.
We do not want anyone that works for a hospital, is friends with doctors, or who
even took Psychology 101 when they were in school to make it past the voir dire.
We should certainly inquire as to whether or not any members of the jury are
familiar with the name of the decedent, or whether they can recall any of the parties being
“in the news”. Obviously, if they heard of “Malum” being in the news, that’s a good thing –
if they heard about our client being in the news, that’s probably NOT good.
--
If we do not get a settlement offer prior to verdict, or summary judgment, we should
be sure to revise and review the charge to the jury at the charge conference to make sure
nothing prejudicial is entertained by the jury, and that all objections have been made on
the record to preserve our rights at appeal.
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