SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RALPH H. SPEKEN and STEPHANIE Z. SPEKEN, as :
Co-Administrators of the Estate of SETH B. SPEKEN,
deceased, and RALPH H. SPEKEN and STEPHANIE Z. :
SPEKEN, Individually,
Plaintiffs,
-against-
COLUMBIA PRESBYTERIAN MEDICAL CENTER,
Defendant.
Plaintiffs, Pro Se, as and for their verified complaint against defendant, respectfully allege as follows:
1. Plaintiffs are residents of the County of Westchester, State of New York.
2. At all times relevant hereto, defendant COLUMBIA PRESBYTERIAN
MEDICAL CENTER, was and still is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York.
3. At all times relevant hereto, defendant COLUMBIA PRESBYTERIAN
MEDICAL CENTER, was and still is a corporation doing business in the State of New York.
4. At all times relevant hereto, defendant COLUMBIA PRESBYTERIAN
MEDICAL CENTER, owned, operated, managed, maintained, controlled, inspected and staffed a medical hospital located at 177 Fort Washington Avenue, County of New York, City and State of New York.
5. At all times relevant hereto, defendant COLUMBIA PRESBYTERIAN
MEDICAL CENTER, held itself out as a medical hospital duly qualified and capable of rendering competent medical care, treatment, advice and surgery to the general public, including plaintiffs’ decedent, Seth B. Speken.
6. At all times relevant hereto, defendant COLUMBIA PRESBYTERIAN
MEDICAL CENTER, furnished and/or provided physicians, surgeons, residents, interns, nurses and other medical personnel at said hospital to afford medical care, advice, referral, recommendations, management and treatment to the general public, including plaintiffs’ decedent, Seth B. Speken.
7. At all times relevant hereto, defendant COLUMBIA PRESBYTERIAN
MEDICAL CENTER, represented that its employees, servants, agents, affiliated physicians, surgeons, residents, interns, nurses, aides and medical personnel at said medical hospital were capable, competent and qualified to properly and adequately order, recommend, request, advise, perform, render or provide all of the professional examinations, evaluations, consultations, care, treatments, procedures, tests, studies, services and advice ordered, recommended, requested, required and advised for, performed upon, rendered and/or provided to plaintiffs’ decedent, Seth B. Speken.
8 At all times relevant hereto, defendant COLUMBIA PRESBYTERIAN
MEDICAL CENTER, was and is fully accredited by the Joint Commission on Accreditation of Hospitals and said defendant’s manuals, rules, regulations, practices, procedures, techniques and functions were required to be in accordance with the standards and conditions of the said Joint Commission on Accreditation of Hospitals.
BACKGROUND
9. On August 21, 1993, plaintiffs’ decedent, Seth B. Speken, was admitted to defendant COLUMBIA PRESBYTERIAN MEDICAL CENTER as a medical patient following a seizure episode. Defendant was suffering from benzodiazepine (Xanax) withdrawal.
10. At all times between August 21, 1993 and August 27, 1993,defendant
COLUMBIA PRESBYTERIAN MEDICAL CENTER, by its employees, affiliated physicians, agents and/or servants undertook to and did administer medical services, and care and to diagnose, treat, care for and attend to the decedent, Seth B. Speken.
11. Prior to decedent’s admission, decedent was being treated with Xanax. Itis common knowledge in the medical profession that Xanax leads to physiologic dependence and that withdrawal therefrom is violent and fatal.
12. Defendant was made aware by plaintiff Ralph H. Speken, a psychiatrist duly licensed by the American Board of Psychiatry and Neurology, that decedent was being treated with Xanax at the time of decedent’s admission.
13. Defendant was made aware by plaintiff Ralph H. Speken that decedent suffered from Crohn’s disease at the time of decedent’s admission. It is common medical knowledge that Crohn’s disease is a risk factor for pulmonary emboli.
14. The emergency services triage report reflects that decedent suffered from Crohn’s disease, panic attacks and depression
15. Defendant did not properly diagnose decedent with Xanax withdrawal until August 23, 1993 at approximately 1:00 p.m., two (2) days after decedent’s admission to the hospital.
16. The generally accepted standard in the medical profession for treating Xanax withdrawal is deep and continuous sedation of the patient. It is common medical knowledge that if Xanax withdrawal is not treated correctly, it may lead to death.
17. Despite properly diagnosing decedent with Xanax withdrawal on August23, 1993, defendant did not immediately order or administer deep and continuous sedation to decedent. Rather, defendant administered doses of Ativan in an amount which was woefully inadequate to properly sedate decedent and left decedent unsupervised and unattended.
18. As a result of defendant’ improper treatment of decedent, he became increasingly agitated, delusional and delirious with visual hallucinations by the late evening of August 23, 1993 and early morning of August 24, 1993.
19. As a result of decedent’s hallucinations and delirium caused by improper treatment, decedent attempted to jump out a window in the early morning hours of August 24, 1993.
20. As a result of decedent’s agitated and delusional behavior, defendant restrained decedent with five point restraints in the early morning of August 24, 1993. The restraints continued, without re-assessment, for sixty-six (66) hours.
21. Upon information and belief, defendant’s restraint of defendent was in violation of Mental Hygiene Law §33.04.
22. According to the hospital records, on August 24, 1993 at approximately 7:00 a.m., decedent’s legs were observed to be “shaking violently” in the restraints. It is common medical knowledge that continuous struggling against restraints leads to the development of venous thromboemboli, tachycardia, cardiac arrhythmia, and cardiac arrest.
23. Upon observing decedent’s struggling against the restraints on the morning of August 24, 1993, defendant knew or should have known that decedent was in serioius withdrawal and that inadequate treatment thereof would lead to death by tachycardia, cardiac arrhythmia, and cardiac arrest. However, decedent was left in restraints and continued to be inadequately sedated.
24. As a result of decedent’s continued struggling against the restraints due to lack of adequate sedation, decedent developed tachycardia and elevated temperature in the late morning of August 24, 1993. It is common medical knowledge that tachycardia and elevated temperature are grave medical developments which precede cardiac arrest in untreated withdrawal.
25. Despite knowing of decedent’s development of tachycardia, elevated temperature and lack of urine, defendant failed to release decedent from restraint and continued to fail to adequately sedate decedent in conscious disregard of the fatal risk inherent in failing to do so.
26. According to the hospital records, decedent had minimal urinary output from the initiation of the restraints on August 24, 1993 until August 25, 1993. It is common medical knowledge that lack of urine output is an indication of renal injury secondary to muscle damage caused by struggling against restraints.
27. Upon observing decedent’s lack of urinary output, defendant knew or should have known that decedent had sustained renal injury secondary to muscle damage caused by struggling against the restraints. However, defendant consciously disregarded the risk of serious and fatal injury to decedent and left decedent in restraints and continued to inadequately sedate decedent for the next three days.
28. From 2:00 a.m. on August 24, 1993, decedent’s chart showed lack of urine output, escalating blood pressure and escalating heart rate, shaking violently in restraints, and escalating temperature.
29. At 1:50 p.m. on August 24, 1993, over twenty-four (24) hours after properly diagnosing decedent with Xanax withdrawal, defendant transferred decedent to the I.C.U. to be treated for Xanax withdrawal, tachycardia and elevated temperature.
30. According to the hospital I.C.U. records, on August 24, 1993, an order to sedate decedent to the “point of intubation” was rendered in order to slow all of decedent’s voluntary and involuntary responses to stop the struggling and resolve the tachycardia.
31. Despite the order to sedate to the “point of intubation”,defendant willfully failed to do so while decedent was in the I.C.U.
32. Despite knowledge of the grave risk of injury to decedent in not removing the restraints and not deeply sedating him, defendant failed to do so and left decedent in the care of an unsupervised and unlicenced medical intern in the I.C.U. who willfully disregarded direct order from a senior resident to sedate decedent to the “point of intubation”.
33. Defendant knew or should have known that violent shaking causes (and did cause in decedent) rhabdomyolosis (breakdown of muscle), elevated creatine kinase, damaged the deep leg veins and caused emboli (blood clots) to form.
34. Nevertheless, defendant kept decedent in the restraints for three days and did not administer heparin to prevent blood clotting.
35. Defendant recklessly failed to use a Doppler Flow meter (available in all hospitals) over decedent’s legs to determine if blood clots were developing.
36. On August 27, 1993 at approximately 4:00 p.m., decedent died of a pulmonary emboli secondary to unlawful restraints imposed during Xanax withdrawal.
37. Defendant consciously disregarded the foreseeable risk of decedent developing pulmonary emboli. Defendant knew that: (i) decedent had been unlawfully restrained for over 66 hours in violation of Mental Hygiene Law
§33.04; (ii) decedent suffered trauma by struggling against the restraints evidenced by prolonged period of decreased urine output with elevated creatine kinase and myoglobulinuria (all signs of muscle damage); (iii) decedent had a risk factor for embolization (Crohn’s disease); (iv) decedent had almost continuous hypertension; and (v) decedent had almost continuous tachycardia.
38. Defendant knowingly and intentionally failed to properly sedate decedent and to remove the illegal restraints and defendant’s deliberate indifference to health and safety of Seth led directly to his death.
39. As a result of defendant’s reckless conduct, defendant inflicted fatal injuries upon decedent from which he died. Had defendant properly treated decedent for Xanax withdrawal upon the diagnosis and had defendant not unlawfully restrained decedent for over 66 hours, decedent would have lived.
40. Upon information and belief, defendant’s foregoing conduct constitutes reckless endangerment in the second degree in violation of Penal Law §120.20.
41. Upon information and belief, defendant’s conduct was in violation of Public Health Law §§12-b and 2803-d(7) and 10 NYCRR 81.1[c], in that defendant willfully failed to provide timely, consistent, safe, adequate and appropriate services, treatment and/or care to decedent, a patient of Columbia Presbyterian Hospital, while decedent was under the supervision of defendant.
42. On October 11, 1994, plaintiffs commenced an action for wrongful death against defendant and others, by filing a summons and complaint with the Clerk of Supreme Court New York County.
43. On July 8, 1999 plaintiffs entered into an open court settlement in which, inter alia, plaintiffs were required to never again speak about the case and to expunge their website entitled “A Death in the Hospital” (http://www.med-malpractice.com) from the Internet. The website deals extensively with Seth’s death.
FIRST CAUSE OF ACTION
44. Plaintiffs repeat and reallege the allegations set forth in paragraphs “1” through “43” as if fully set forth herein.
45. A promise to conceal a crime or alleged crime is illegal.
46. Since defendant’ reckless, willful and intentional conduct in failing to properly treat decedent for Xanax withdrawal despite knowing of the fatal risk of doing so, constitutes reckless endangerment in the second degree, as well as violations of various Health regulations, that provision of the settlement which requires plaintiffs to keep silent about defendant’ criminal conduct and to expunge their website, is void as illegal.
47. Since defendant’s unlawful restraint of decedent for 66 hours, in violation of Mental Hygiene Law §33.04, constituted a crime, that provision of the settlement which requires plaintiffs to keep silent about defendant’ criminal conduct and to expunge their website, is void as illegal.
SECOND CAUSE OF ACTION
48. Plaintiffs repeat and reallege the allegations set forth in paragraphs “1” through “47” as if fully set forth herein.
49. An illegal consideration consists of any act or forbearance, or a promise to act or forbear, which is contrary to law or public policy.
50. Over 98,000 people die every year from medical malpractice.
51. The Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”) has a policy which demands total openness about medical mistakes and malpractice. In accordance with this policy, hospitals accredited by JCAHO are required to tell patients when their treatment outcomes vary from anticipated results.
52. Public policy, set by the highest accrediting body in medicine, is that there must be full disclosure of medical malpractice in all of its aspects.
53. The right of the public to know about medical malpractice supercedes defendant’s right to enforcement of that part of the parties’ settlement as requires plaintiffs’ silence about the circumstances surrounding decedent’s death.
54. By virtue of the foregoing, that provision of the stipulation which requires plaintiff’s to keep silent about defendant’ criminal conduct and to expunge their website, is void as against public policy.
WHEREFORE, plaintiffs demand judgment against defendant as follows:
1. On the first cause of action, vacating that provision of the parties’ settlement as requires plaintiffs to keep silent about defendant’s criminal conduct and to expunge their website, upon the ground that it is void as illegal;
2. On the second cause of action, vacating that provision of the parties’ settlement as requires plaintiffs’ to keep silent about defendant’ criminal conduct and to expunge their website, upon the ground that it is void as against public policy, and restoring plaintiffs’ First Amendment Rights; and
3. Awarding plaintiffs such other and further relief as the Court deems just and proper together with the costs and disbursements of this action.
Dated: Bronx, New York
July 16, 2001
____________________________
RALPH H. SPEKEN, M.D.
____________________________
STEPHANIE Z. SPEKEN, M.S.