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).
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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