Hospitals Send Bill if Mental Patients Win Suits

Hospitals Send Bill if Mental Patients Win SuitsBy ALISON LEIGH COWAN


Published: December 24, 2010


http://www.nytimes.com/2010/12/25/nyregion/25damages.html?_r=2

.Daniel J. Langevin was 35, mentally ill and broke. He had been living in psychiatric institutions on and off since his early 20s.

After Daniel Langevin sued over an error at a mental hospital, New York State countered that he should pay for years of care.

Daniel Langevin with his mother, Jeane, in 2009, left, and then in 2010. He wound up with no award after suing a state hospital.

A friend who visited him at the Rochester Psychiatric Center in February 1995 remembered that Mr. Langevin had pain in his jaw, eye and face that was not getting much attention from the staff. A week later, he was discovered unconscious, with a near-fatal infection spreading to his brain and other organs.



Mr. Langevin sued New York State, which operates the hospital, and probably would have won a sizable award. But the state countered by demanding that Mr. Langevin reimburse it $1.7 million for 10 years of inpatient care he had received. A judge sided with the state, and Mr. Langevin wound up with nothing.



Slip and fall in a New York prison, or suffer abuse by its guards, and inmates can keep whatever they win in court. But for patients in state-run mental hospitals — people too ill to live on their own and too poor to pay for their care — the state can drain court-awarded damages, effectively deducting the cost of their stays in the very hospitals that failed or abused them.



“It’s a Catch-22, isn’t it?” said Leo G. Finucane, the lawyer who represented Mr. Langevin. “I need to go to this facility because I’m sick. But if they hurt me worse, they’re immune.”



Attorney General Andrew M. Cuomo’s office, which handles these kinds of cases for New York State, declined repeated requests to discuss the matter.



It is not uncommon for public hospitals to lean hard on patients found to have assets. But New York squeezes patients who sue for injuries more consistently and harder than many other states, according to lawyers and others who represent the mentally ill.



“I’ve done this work since 1986, and New York has had the reputation of doing this far more than any other state in the country,” Susan Stefan, a lawyer and professor, said.



Lawyers in Oregon still talk about the time their state forced a patient to hand over 80 percent of the settlement he received from the Roman Catholic Church as a victim of sexual abuse. But in 1999, Oregon amended its law to keep the state from satisfying hospital debts with money that patients obtained from the state itself for acts of negligence.



In New Jersey, the state five years ago stopped imposing liens on psychiatric patients with unpaid balances, and lawyers for injured or abused patients can have clauses inserted into judgments and settlements promising that the state will not go after the awards to satisfy hospital debts, Joseph Young, executive director of the advocacy group Disability Rights New Jersey, said.



In Wisconsin, the state sought a $1,000-per-night reimbursement for the years an indigent woman stayed at the Mendota Mental Health Institute, after the woman choked to death on a peanut butter sandwich she should not have been given and her family filed a wrongful-death suit. But on the eve of trial, the family’s lawyer negotiated a deal that left her heirs with thousands of dollars in compensation and a promise that the state would waive its claim. “Even the state recognizes that what the law allows it to do may result in extreme and unjust consequences,” the lawyer, Jason Studinski, said.



Over the years, New York has exercised its right to collect in dozens of these kinds of cases and has generally received a go-ahead from the courts.



There was the 20-year-old woman raped at South Beach Psychiatric Center on Staten Island in 1992. Six years later, a judge deducted $101,000 from her $250,000 award to cover what the state contended she owed for services; the judge ruled that a hospital might be negligent on some days while providing valuable services on others. The patient appealed, to no avail.



Ron Lynch, a patient at Bronx Psychiatric Center, sued for $7 million in damages after being assaulted in 2003 by another patient. This prompted the state to respond that Mr. Lynch ought to pay $1,585,519.22 to reduce the bill he had run up for his treatment.



Evelyn Hasson was given a toxic amount of the antipsychotic drug Thorazine at Manhattan Psychiatric Center in 1993. Her relatives brought a wrongful-death suit, and the state sent a bill of $220,136.90 to her estate. The parties reached a financial settlement that will net her family $100,000, according to her lawyer, Bill Brooks of the Touro Law Center, but the questions of whether the counterclaim violated her constitutional rights have been pending in federal court for 11 years.




The state courts in New York have generally allowed the state to pursue reimbursement, but with limits, because of a patient named Louis O. Acevedo.



Mr. Acevedo sued the state after breaking his leg during an assault at Middletown Psychiatric Center in 1986, and he was soon warned that he could face a bill for $265,647.66. He withdrew his claim but challenged in federal court the state’s use of counterclaims. A judge ruled in 1991 that the state should be seeking reimbursement only up to the amount a patient recovered. Anything larger, the judge said, would deter patients from seeking redress because of the possibility that they might end up worse off.



In the years since then, patients’ lawyers have argued that even with a cap, letting the state claw back its own negligence awards is a disincentive to sue.



In the Langevin case, Judge Donald J. Corbett Jr. of the New York Court of Claims, like other jurists who have examined the issue, found in favor of the state. New York’s mental hygiene law gives the state the right to go after found assets or windfalls and allows six years from when the debt was incurred to begin an action against a patient.



“That does smack me as being unfair, especially in a small case,” said G. Oliver Koppell, a city councilman from the Bronx who temporarily served as New York’s attorney general in 1994. “If someone recovers $1 million and has a hospital bill of $50,000, it doesn’t bother me because they’re now a wealthy person. But for someone who has no money, to have it all taken back, it does strike me as being unfair or punitive.”



Maria Randone, 52, who has been in and of New York institutions since she was 14, is testing the law anew.



Ms. Randone was at an assisted-living home in Highland, N.Y., in 2005, but after smashing her plate in the dining room and causing a scene, she was taken away by the police and was involuntarily committed to a nearby hospital.



“I got a little upset because I wanted seconds,” Ms. Randone later testified.



Hudson River Psychiatric Center, where she was placed, let her shower soon after without assistance, despite her documented need for help. Staff members found her sprawled at the bottom of the stall, with a broken hip and femur.



Ms. Randone sued in 2007, and the state parried with a countersuit preserving its right to have any windfall garnished to repay the $467,051.94 bill it calculated she owed for two years of her stay in state-run psychiatric hospitals.



Last January, the Court of Claims in White Plains found the state fully responsible for Ms. Randone’s fall, entitling her to damages for pain, suffering and impairment. The court examined how much to award her — and how much should go back to the state — last month in a second trial. A ruling is expected by April.



Richard Greenblatt, the lawyer in Poughkeepsie who is representing Ms. Randone, said he thought the injury would ordinarily justify damages of $400,000 to $1 million. He said that he had tried to settle the case for $500,000, of which $100,000 would be returned to the state to cover the hospital bill, but that the assistant attorney general currently on the case showed no interest.



He “rejected the proposal outright, saying if she has the money, we’re going to take it,” Mr. Greenblatt said, adding: “It just reeks of unfairness. It’s Kafkaesque.”



Mr. Finucane, Mr. Langevin’s lawyer, struggles to see how the approach is good for hospitals or patients. He said state employees “don’t have to be careful if the state has no liability and if there’s no pressure from above to be careful on the floors because ‘we don’t want to be shelling out millions of dollars for negligence claims.’



“They’ve got this wonderful way of addressing it,” Mr. Finucane continued. “ ‘Well, we’ll just ask them to pay for everything we’ve done for them for several years.’ ”