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

571
CA 11-02199
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


RUSSEL VANBROCKLEN, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIE COUNTY MEDICAL CENTER, DEFENDANT-APPELLANT.


RICOTTA & VISCO, ATTORNEYS & COUNSELORS AT LAW, BUFFALO (BRETT P.
GLIOSCA OF COUNSEL), FOR DEFENDANT-APPELLANT.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered February 4, 2011. The order, insofar as appealed
from, denied in part the cross motion of defendant 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 Medical Center, after suffering a severe panic attack at a
movie theater. During the ensuing few hours of treatment administered
to plaintiff in defendant’s psychiatric unit, a doctor ordered
injections of Haldol and Ativan, which were administered to plaintiff
without his consent. In commencing this action, plaintiff asserted
claims sounding in, inter alia, intentional infliction of emotional
distress, medical malpractice, battery, and the violation of his
constitutional rights. Supreme Court granted defendant’s cross motion
for summary judgment dismissing the complaint with the exception of
the battery and constitutional claims. We reject defendant’s
contention that the court should have granted its cross motion in its
entirety.

     Contrary to defendant’s contention, the claims asserting the
complete absence of consent, as opposed to those asserting that
defendant exceeded the scope of plaintiff’s consent, properly may be
treated as claims for battery rather than for medical malpractice. It
is well settled that a medical professional may be deemed to have
committed battery, rather than malpractice, if he or she 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; see Wiesenthal v Weinberg, 17 AD3d 270, 270-271; Cross v Colen, 6
AD3d 306, 307). With respect to plaintiff’s battery claims, we
conclude that defendant failed to meet its initial burden of
establishing that it “did not intentionally engage in offensive bodily
contact without plaintiff’s consent” (Guntlow v Barbera, 76 AD3d 760,
                                 -2-                          571
                                                        CA 11-02199

766, appeal dismissed 15 NY3d 906; see generally CPLR 3212 [b]). The
medical records and affidavits submitted by defendant do not dispute
that its agents intentionally contacted plaintiff’s person when
administering the injections, nor do they dispute that those
injections were administered without his consent. Likewise, defendant
failed to establish that the injections were 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’s cross motion with respect to the claims for
battery.

     As to plaintiff’s constitutional claims, we note that defendant,
as a public hospital, is a state actor (see Vanbrocklen v Gupta, 2010
WL 5575325, at *2-3 [WD NY]; cf. Nedd v Queens Hosp. Ctr., 2008 WL
2497428, *2 [ED NY]), and that due process protects the “fundamental
right [of psychiatric patients] to refuse antipsychotic medication”
(Rivers v Katz, 67 NY2d 485, 492, rearg denied 68 NY2d 808; see Kulak
v City of New York, 88 F3d 63, 74). Under the circumstances of this
case, in which the medication was administered before there was a
“judicial determination of whether [plaintiff had] the capacity to
make a reasoned decision with respect to proposed treatment” (Rivers,
67 NY2d at 497), defendant could lawfully administer the medication
without consent only if plaintiff was “presently dangerous and the
proposed treatment [was] the most appropriate reasonably available
means of reducing that dangerousness” (14 NYCRR 527.8 [c] [1]). A
patient is considered “dangerous” in this context if he or she
“engages in conduct or is imminently likely to engage in conduct
posing a risk of physical harm to himself[, 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’s constitutional claims inasmuch as it
failed to demonstrate that, at the time plaintiff received the
injections, he was “engag[ing] in conduct or [was] imminently likely
to engage in conduct posing a risk of physical harm to himself or
others” (14 NYCRR 527.8 [a] [4]; see Kulak, 88 F3d at 73-75; see
generally CPLR 3212 [b]). The medical records do not indicate that
plaintiff was unruly, uncooperative, or belligerent, and they in fact
suggest that plaintiff’s behavior was unremarkable. Additionally, the
affidavit of the physician who ordered the injections is ambiguous
regarding his rationale for doing so. Specifically, many of the
physician’s statements 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. Because
defendant failed to establish as a matter of law that it had a lawful
basis for medicating plaintiff without his consent, it failed to
establish its entitlement to summary judgment dismissing plaintiff’s
constitutional claims (see generally 14 NYCRR 527.8 [c] [1]; Rivers,
67 NY2d at 492-497; Kulak, 88 F3d at 73-75).


Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
