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Edward Nitkewicz
Edward Nitkewicz
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"Formal silverware" and the State of New York's duty to its psychiatric patients

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In what a Court of Claims Judge ruled a specious defense claim, the State of New York argued that its duty to account for knives in its psychiatric hospitals should extend to silverware and not plasticware.

The New York Law Journal reported that a Court of Claims judge found the State of New York fully liable for the attempted suicide of a psychiatric patient who cliamed he was able to pocket plastic knives from the dining area because the staff failed to account for utensils after meals.

In Acerbo v. the State of New York, Judge Terry Jane Ruderman undertook an extensive evaluation of the state’s obligation to its patients and detailed the specific facts pertaining to the Acerbo claim.

It is undisputed that Rockland’s own written policy and procedure explicitly requires that its staff "must ensure that the complete compl[e]ment of eating utensils (knife, spoon, fork, etc.) given to the patient is returned [emphasis added]" after each meal (Ex. 14). Additionally, the staff "must ensure that the patient does not enter into the bathroom with any eating utensils [emphasis added]" (id.). Rockland’s policy and procedure further addresses the potential circumstances that "a patient may have hidden the utensil on their person or in their property" and provides for conducting a search of the immediate area and possibly the patient.The issuance of this policy and procedure evidences Rockland’s awareness that there is a danger posed by unaccounted for utensils because a patient may hide a utensil and then proceed into the bathroom. The potential danger posed by a psychiatric patient alone in a bathroom with a utensil is that the patient may self inflict wounds.

The Court pointedly rejected the state’s "specious" argument that its own procedures did not apply to plastic utensils.

The Court rejects the argument that Rockland’s written policy and procedure regarding utensils (Ex. 14) was not applicable at the time of claimant’s suicide attempt in 2006 because the policy and procedure related to silverware and Rockland was using plasticware at that time. First, Rockland’s own employees testified to their dining room practices which were consistent with the written policy and procedure (id.). Second, defendant failed to establish when Rockland stopped using silverware and began using plasticware. Third, the change in the type of utensils did not change the acknowledged danger posed by a missing utensil. Fourth, the policy and procedure was revised five times since it issuance in 1989 with the last revision in 2003; thus Rockland had the opportunity to address the change from silverware to plastic and did not. Finally, if any part of the policy and procedure appears to be superfluous with Rockland’s use of plastic utensils, it would be only that which refers to the placement of utensils in a special container, which was used for cleaning the silverware, whereas the plastic utensils were discarded after theywere accounted for and taken to the kitchen. The Court also rejects the argument that claimant may have obtained the knives due to an extra knife placed in his packet or in the packet of another patient. These arguments are specious and, in any event, could also lead to a finding of negligence attributable to Rockland.

The clear message from the court is that the state’s duty extends to untensils that cut. Period.