        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1302
CA 13-00760
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


FREDERICK INGUTTI AND MARY INGUTTI,
PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

ROCHESTER GENERAL HOSPITAL, DEFENDANT-APPELLANT.


OSBORN, REED & BURKE, LLP, ROCHESTER (JENNIFER M. SCHWARTZOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MCCONVILLE, CONSIDINE, COOMAN & MORIN, P.C., ROCHESTER (PETER J.
WEISHAAR OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
M. Van Strydonck, J.), entered September 18, 2012. The order, among
other things, denied the motion of defendant for partial summary
judgment seeking dismissal of the first cause of action.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs, the motion is granted and the first
cause of action is dismissed.

     Memorandum: Plaintiffs commenced this negligence and medical
malpractice action seeking damages for injuries sustained by Frederick
Ingutti (plaintiff) when he left defendant hospital against medical
advice and was found approximately two hours later by the police,
disoriented and with frostbitten fingers that required partial
amputation. We conclude that Supreme Court erred in denying
defendant’s motion for partial summary judgment seeking dismissal of
the first cause of action. In that cause of action, plaintiffs
alleged that defendant was negligent in failing to prevent plaintiff
from leaving the hospital and in failing to ensure plaintiff’s safety
when he left the hospital inasmuch as defendant’s staff did not
contact plaintiff’s wife or make arrangements for someone to pick him
up. We agree with defendant that, pursuant to Kowalski v St. Francis
Hosp. & Health Ctrs. (21 NY3d 480, 484-485), which was decided after
the court rendered its decision (see generally Gurnee v Aetna Life &
Cas. Co., 55 NY2d 184, 191, rearg denied 56 NY2d 567, cert denied 459
US 837; Matter of Elsa R. [Gloria R.], 101 AD3d 1688, 1688-1689, lv
denied 20 NY3d 862; Klepper v Klepper, 120 AD2d 154, 157), it did not
have a duty to prevent plaintiff from leaving the hospital against
medical advice. We further agree with defendant that it did not have
the concomitant duty to ensure plaintiff’s safe return home (see
Kowalski, 21 NY3d at 484-485).
                                  -2-                          1302
                                                          CA 13-00760

     We disagree with our dissenting colleagues that Kowalski does not
apply to the facts of this case because plaintiff herein was admitted
to the hospital, whereas the plaintiff in Kowalski was not. Indeed,
we note that the Court began its analysis by stating that “[t]here are
surely few principles more basic than that the members of a free
society may, with limited exceptions, come and go as they please” (id.
at 485). The Court also stated that “[t]o restrain plaintiff on these
facts would have exposed defendants to liability for false
imprisonment” (id. at 486). We conclude that those statements also
apply to the facts here. Although plaintiff had been admitted to the
hospital for medical treatment, there is no statute or principle of
common law that would permit the hospital to force plaintiff to remain
in the hospital when he decided to leave (see id. at 486). We further
conclude that the dissent’s reliance on Horton v Niagara Falls Mem.
Med. Ctr. (51 AD2d 152, 154, lv denied 39 NY2d 709) and Papa v
Brunswick Gen. Hosp. (132 AD2d 601, 603) is misplaced inasmuch as the
issue in those cases was the scope of a hospital’s duty to a patient
while the patient was in its care in the hospital. Those cases did
not hold that the hospital had a duty to prevent the patient from
leaving the hospital and, under Kowalski, there is no such duty.

     All concur except SCONIERS and WHALEN, JJ., who dissent and vote to
affirm in the following Memorandum: We respectfully dissent because
we cannot agree with the majority’s conclusion that Kowalski v St.
Francis Hosp. & Health Ctrs. (21 NY3d 480, 484-485) compels the award
of partial summary judgment dismissing the first of cause of action,
for negligence, under the circumstances of this case. Rather, we
would conclude that Supreme Court properly denied defendant’s motion
for partial summary judgment seeking dismissal of the first cause of
action.

     In Kowalski, the Court of Appeals held that defendants did not
have a duty to prevent the plaintiff from leaving the defendant
hospital’s emergency room because Mental Hygiene Law § 22.09 prohibits
the involuntary retention of people who come in voluntarily (see id.
at 485-486), and “there can be no duty to do that which the law
forbids” (id. at 486). Here, however, Frederick Ingutti (plaintiff)
had been admitted to the hospital and was no longer in the emergency
room, thus rendering Mental Hygiene Law § 22.09 inapplicable (see 14
NYCRR 304.3 [c]). Notably, the Court in Kowalski limited its holding
to “the facts of this case” (id. at 483).

     Contrary to the view of the majority, we conclude that, because
plaintiff was admitted to the hospital, defendant had the duty “to
exercise reasonable care and diligence in safeguarding [plaintiff],
measured by the capacity of [plaintiff] to provide for his own safety”
(Horton v Niagara Falls Mem. Med. Ctr., 51 AD2d 152, 154, lv denied 39
NY2d 709; see Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603). We
conclude that there are issues of fact whether defendant failed to
meet that duty. Plaintiff was admitted to the hospital for acute
pancreatitis, acute alcohol intoxication, alcohol withdrawal, and
delirium tremors (DTs). Plaintiff’s wife informed the hospital staff
that plaintiff had a history of altered mental status during
                                 -3-                          1302
                                                         CA 13-00760

withdrawal. Indeed, during a stay at the same hospital a year and a
half earlier, plaintiff similarly experienced DTs and severe
confusion. As a result of his present condition, plaintiff’s wife
thought that plaintiff might attempt to discharge himself and leave
the facility. Plaintiff’s wife therefore requested that hospital
staff contact her if plaintiff tried to leave, and a nurse manager
assured her that she would watch plaintiff and indicate on his chart
that he was an escape risk. Although plaintiff filled out a release
indicating that he was leaving the hospital against medical advice at
11:00 p.m. on February 6, 2007, he wrote the date as “5-07” and the
time as 2:00 p.m., thereby suggesting that he did not know the date or
time of day. In addition there was a notation in plaintiff’s medical
chart that he was “confused with direction.” In light of those facts,
we cannot conclude that defendant met its burden of establishing that
it was not negligent as a matter of law when it failed to prevent
plaintiff from leaving the hospital and failed to ensure plaintiff’s
safety when he left the hospital.




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
