Freeman v. St. Clare's Hospital & Health Center , 156 A.D.2d 300 ( 1989 )

Judgment of the Supreme Court, New York County (Helen E. Freedman, J.), entered on August 22, 1988, awarding plaintiff $125,000 for injuries sustained while a patient at defendant hospital, is unanimously affirmed, with costs.

Plaintiff’s injuries were the result of an attempted rape by another patient while she was in multiple restraints and unsupervised in the emergency room of defendant hospital. Contrary to defendant’s contentions, defendant was on notice that the other patient was aggressive and might cause trouble. A hospital is under a duty to take reasonable care to protect its patients from injury (Killeen v State of New York, 66 NY2d 850, 851). The degree of care is commensurate with a patient’s capacity to provide for her own safety (Zophy v State of New York, 27 AD2d 414, affd 22 NY2d 921). The exact extent of the injury need not be foreseeable so long as some type of injury may be reasonably anticipated (Evans v State of New York, 117 AD2d 581, 582). Further, the court’s instruction, as corrected and clarified, did not charge a new theory of liability. Concur—Ross, J. P., Asch, Milonas, Kassal and Smith, JJ.