Arkham Asylum: A Rogues’ Gallery of State Liability

Arkham Asylum is a massive Federal lawsuit waiting to happen on Gotham. The rogues’ gallery of legal issues in the first episode of Gotham since the mid-season should give all the fictional elected officials pause.

Arkham-8thAmendmentGenerally speaking, the inmates could end up in Arkham if 1) they were on the streets as a danger to themselves or 2) arrested for a crime and found to be not competent to stand trial. There are of course other situations, but given the “hospital” is supposed to be for the criminally insane, those are the likely candidates.

As a preliminary matter, the prisoners could be in Arkham from a judicial determination. Alternatively, inmates could be involuntarily committed to Arkham if two treating physicians submit separate applications under penalty of perjury that the inmate containing a statement of the facts upon which the allegation of mental illness and need for care and treatment are based (assuming Gotham is in New York state). NY CLS Men Hyg § 9.27.

After arriving at Arkham Asylum, Doctor Lang should have had a doctor who was on the psychiatric staff examine each inmate to also determine if the individual was in need of involuntary confinement (assuming those inmates were not in Arkham by Court order).

History has many horrific cases of mental hospitals that were torture chambers. In order for a prion to have conditions that amount to “cruel and unusual punishment” that violates the Constitution, the conditions must be “barbarous” or “shocking to the conscience.” Cooper v Morin (1977) 91 Misc 2d 302, 398 NYS2d 36, mod, in part on other grounds, affd, in part (1978, 4th Dept) 64 App Div 2d 130, 409 NYS2d 30, mod on other grounds (1979) 49 NY2d 69, 424 NYS2d 168, 399 NE2d 1188, reconsideration den (1980) 49 NY2d 801 and cert den (1980) 446 US 984, 64 L Ed 2d 840, 100 S Ct 2965.

Arkham Asylum being 200 years old, abandoned for a decade, dirty, having inadequate lighting, not enough doctors, not enough guards, and lacking the means to treat those confined there, should rise to the level of “shocking to the conscience” and amount to “cruel and unusual punishment.” The icing on the liability cake was an former inmate infuriating the staff as a nurse and dispensing medications.

Here is the Civil Rights violation giveaway: if the “hospital” looks like a medieval dungeon, it most likely violates the US Constitution.

Gotham_Nurse_1992There is a very strong case against Doctor Lang and Arkham for his refusal to treat “Frogman” for his injuries from electric shock therapy. If someone is in prison, then the State must provide medical care to that prisoner, “”because the prisoner is unable by reason of the deprivation of his liberty [to] care for himself” Garcia v NY City Police Dept., 2014 NY Slip Op 31351[U], *14 [Sup Ct, Bronx County 2014], citing Estelle v Gamble, 429 U.S. 97, 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 [1976].

Doctor Lang’s caviler statement that “Frogman” was still breathing and to simply “keep him comfortable,” demonstrated a total lack of providing any medical care needed for the injuries the “Frogman” sustained.

Arkham Asylum should strike terror into the heart of the Gotham City attorney. It literally is a massive lawsuit waiting to happen.

Finally, as for Cat taking the sick Poison Ivy to Barbara Kean’s penthouse, there is no doubt that entering the property was trespassing. However, Cat and Ivy could argue the necessity defense. Barbara on the other hand, from her drug use, bipolar behavior, and thinking the voice of a child to be a paramour, probably could be held involuntarily based on the evaluation of two doctors as a danger to herself.