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On or about 12 August 2003, the woman’s daughter attempted suicide


The Facts:

Sometime in 1982, a woman (herein the woman, wife or decedent, a 51 year old married woman at the time of her death) gave birthto triplet daughters. After giving birth, she experienced postpartum depression and was, for a brief period of time, hospitalized in the psychiatric ward of the hospital where she gave birth. Thereafter, following the 11 September 2001 terrorist attacks, the woman suffered from severe anxiety. A non-party physician prescribed Xanax.

On or about 12 August 2003, the woman’s daughter attempted suicide by taking pills after her friends’ drowning deaths. The woman’s husband (herein plaintiff administrator) testified at his deposition that his wife was also depressed as a result of the children’s death and their daughter’s suicide attempt. On 15 August 2003, their daughter sought psychological care with doctor-one and was accompanied by them, the parents, to the appointment.

On 17 August 2003, five days after the daughter’s suicide attempt, the woman drove herself to the Emergency Room (ER) at the New York University Hospital. Upon learning where she had gone, the woman’s husband went there to meet her. In the ER, the woman confessed that she had had an extramarital affair about 2 months earlier and that she was afraid she had contracted a sexually transmitted disease. After returning home from the hospital that night, the woman and her husband had an argument concerning the affair and discussed divorce. Ultimately, they decided to hold off on making any decisions until their daughters left for college later that month.

On 19 August 2003, at approximately 5:00 A.M., the husband found the woman lying on the bed in a spare bedroom. She was unresponsive and he called 911. The woman was brought into the ER at South Nassau Communities Hospital (SNCH) with a suspected drug overdose. Doctor-two, an attending on call, became her attending internist for admission to SNCH. His admitting diagnosis was “Xanax Overdose.” She was admitted to the intensive care unit with impression of drug overdose and respiratory failure. As a result, she was intubated upon her arrival. Thereafter, the woman’s husband contacted his daughter’s psychologist, doctor-one, to speak with her concerning his relationship with his wife, thus, an appointment was made to see him on the following day.

The next morning, the woman was extubated. A registered nurse testified that it was difficult to provide emotional support because she was not talking much that day.

On 20 August, and again on 21 August, the husband met with doctor-one and sought counseling concerning his marriage and his wife’s infidelity.

On 21 August, doctor-two obtained a psychiatric consultation for the woman from doctor-three, who, like doctor-two, practiced at SNCH. Doctor-three, upon examining the woman at her bedside noted that she was alert and oriented and was not suicidal or delusional; the woman identified her betrayal of her husband by having an affair, her daughter’s problem and the recent loss of family friends as stressors; she expressed concern regarding her medical condition; she expressed a willingness to work with her husband in therapy and indicated she wanted her children to do well. Doctor-three’s diagnosis was that the woman was suffering from a major depressive disorder and that she was status post an overdose attempt. As a result, doctor-three started the woman on Lexapro and Buspar. Lexapro is a medication indicated for the treatment of major depressive disorders and Buspar is a medication indicated for the treatment of anxiety. Doctor-three’s treatment plan for the woman also included seeing the husband. During a 30 to 45 minute conversation with the husband, doctor-three asked him questions regarding collateral history of signs and symptoms, the presence of stressors, the patient’s support system and motivation for follow up care, as well as his involvement in his wife’s care. Doctor-three claims that upon speaking to the husband, he learned that the woman had been seen by a doctor in the city regarding the affair that contributed to the marital stress; that the woman had written a letter to her family expressing remorse for her actions; that the husband had asked a therapist he was seeing to become involved in her care, the co-defendant doctor-one.

On 22 August 2003, the woman was again seen by doctor-three. At that time, the woman did not demonstrate any untoward side effects to the psychiatric medications previously begun. Further discussions with the woman and the husband with regard to the woman’s attending outpatient psychiatric care took place. The plan was for the woman to be seen on an outpatient basis at SNCH psychiatric facility located in Baldwin, New York which the couple agreed to. The woman’s admission continued to 23 August 2003 where, acting on doctor-three’s recommendation, doctor-two discharged the woman.

On 24 August 2003, the couple met with doctor-one for an initial interview whereupon doctor-one explained the marital counseling process and asked for copies of the woman’s discharge papers from SNCH in order to determine how to best proceed with the marital counseling. They both scheduled another appointment to see doctor-one on 25 August 2003 at 1:00 pm.

On 25 August 2003, at 9:00 A.M., the husband contacted doctor-one insisting on seeing her immediately. The husband arrived at her office at around 9:30 A.M. at which time he told her that contrary to her advice, he had continually harassed his wife about her infidelity the preceding night and that she was at home resting when he left her that morning. The husband testified that his wife had advised him that earlier that morning she had taken several Fiorcet tablets for a migraine headache. The active ingredients in Fiorcet are 50 milligrams Butalbital, 325 milligrams Acetaminophen and 40 milligrams Caffine. When the husband returned home that morning, he found his wife submerged in the bathtub; the bathroom door had been locked and was forced open; and his wife was still wearing her underwear, though submerged in the tub. The husband pulled her out of the tub and forced water out of her mouth and chest. He then called the police. The woman (wife) was taken back to SNCH where she was pronounced dead. A toxicology report revealed that she had 2.63 mg/L of Butalbital and 25.7 milligrams Acetaminophen in her Femoral Blood. The Medical Examiner never determined drug overdose to be the cause of death. In fact, no cause of death was ever stated by the medical examiner. The family, on religious grounds, refused to have an autopsy done.

Upon the police investigation into the woman’s death, an undated note was found which was written by the woman. She wrote that she had done something shameful in June and that she was running away. She also wrote that she was deserting her family. With respect to this note, the husband testified that his wife had personally handed him a note on the night before she overdosed on Xanax; that he read the note in his wife’s presence and without even finishing reading it, he put it in his pocket.

Subsequently, the husband instituted a psychiatric and medical malpractice action against SNCH, the internist (doctor-two), the psychiatrist (doctor-three), and the psychologist (doctor-one); as plaintiff and administrator. Plaintiff alleges that doctor-two departed from accepted medical practice in discharging the decedent from SNCH on 23 August 2003 because the discharge deprived the decedent of an opportunity to avoid suicide on 25 August 2003; that doctor-three and the hospital also negligently and carelessly departed from good and accepted standards of medical practice and procedures by, inter alia, negligently treating major depression and negligently discharging his wife prematurely from SNCH and failing to provide a complete and careful examination, the circumstances of the overdose and the surrounding circumstances of the underlying mental illness; that as a result of the allegations against doctor-three and SNCH, his wife suffered from unfettered progression of major depression leading to the commission of suicide by overdosing/overmedicating in a bathtub, drowning, and suffering a cardiopulmonary arrest; that doctor-one also negligently and carelessly departed from good and accepted standards of medicine and psychology in that, inter alia, she failed to recognize and appreciate the signs and symptoms of plaintiff’s condition and negligently discharged the plaintiffs’ decedent from a health care facility.

All defendants moved for a summary judgment dismissal of plaintiff’s complaint.

The Ruling:

On doctor-one’s motion:

Under the rules, a cause of action to recover damages for medical malpractice must be founded upon the existence of a physician-patient relationship. Here, there is no question that the defendant, doctor-one, was the decedent’s daughter’s and the plaintiff husband’s therapist. To the extent that doctor-one met with the decedent on 24 August 2003 for an initial interview where she explained the marital counseling process and asked for copies of her discharge papers in order to determine how to best proceed in the marital counseling, the Court finds that defendant has submitted ample proof in admissible form which establishes that no doctor-patient relationship was formed between the plaintiffs decedent and defendant doctor-one. There is no evidence that defendant doctor-one had ever agreed to undertake the decedent’s care or had treated or advised her. Although the decedent participated in her husband’s care and treatment with doctor-one, there is no evidence that treatment or care of the wife, alone, was contemplated.

Thus, after having carried the initial burden of entitlement to judgment as a matter of law, the burden now shifts to the plaintiff to raise a triable issue of fact. In the absence of any opposing papers presented by the plaintiff, summary judgment is granted to defendant doctor-one.

On doctor-two’s motion:

Under the law, the essential elements of medical malpractice are: a deviation or departure from accepted medical practice, and evidence that such departure was a proximate cause of injury. Thus, on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to lay bare his or her proof and demonstrate the existence of a triable issue of fact. Here, inasmuch as defendant doctor-two’s expert’s affirmation addresses the facts as contained in the medical record and responds to plaintiff’s claims in the bill of particulars, the court finds that the expert affirmation is competent evidence that defendant doctor-two did not depart from good and accepted medical practice when he relied upon and deferred to the directions given to him by plaintiff’s psychiatrist, doctor-three, with respect to whether she was ready to be discharged from a psychiatric standpoint. Moreover, the medical function undertaken by defendant doctor-two was that of an internist and not plaintiff’s psychiatric care and, thus, doctor-two’s duty of care did not extend to the treatment rendered to plaintiff by her psychiatrist.

Thus, based upon defendant’s deposition testimony coupled with the expert’s affirmation, defendant doctor-two has demonstrated his prima facie entitlement to judgment as a matter of law thereby shifting the burden to the plaintiff to submit competent evidence showing a departure from accepted medical practice and a nexus between the alleged medical malpractice and plaintiffs injury.

Consequently, plaintiff submits three expert affirmations: one from a psychiatrist, one from an internist and one from a forensic pathologist. The negligence claimed against doctor-two as set forth in the psychiatric and internist expert affirmations are that he failed to communicate appropriate information to doctor-three, which contributed to an incomplete evaluation of the decedent and that doctor-two failed to keep the decedent in the hospital for further psychiatric treatment and evaluation because he should have known that she did not receive any meaningful psychiatric medications or therapy and counseling in the hospital. Nonetheless, the record is clear that doctor-three was well aware of the decedent’s medical concerns; doctor-three acknowledged at his deposition that he was advised by doctor-two of the decedent’s HIV testing, and considered it in connection with his clinical evaluation; and doctor-three took a full mental status examination of the patient including history, complaints, history of present illness, past psychiatric history, past medical history, family history, personal and social history, and mental status evaluation. Thus, the failure to communicate information that was already known by doctor-three could not possibly have affected his decision to clear the patient for discharge.

Moreover, the plaintiff’s claim that doctor-two should have kept the decedent in SNCH for further psychiatric treatment and evaluation despite doctor-three’s psychiatric clearance for discharge is insufficient to raise a triable issue of fact concerning proximate cause. Plaintiff’s expert fails to identify the content of doctor-three’s considered opinions that should have alerted doctor-two to their unreliability. Further, plaintiffs’ experts do not discuss what doctor-two could have hoped to have achieved after the consulting psychiatrist had already determined that the decedent was not in need of in-patient psychiatric treatment. While it is true that when medical experts offer conflicting opinions, a credibility question is presented requiring a jury’s resolution, it is equally true that where the opinions of the plaintiffs’ expert are based upon allegations of medical malpractice that are merely conclusory in nature and unsupported by competent evidence, such expert affirmations are insufficient to defeat defendant physician’s entitlement to summary judgment.

Furthermore, plaintiff’s expert pathologist fails to offer any evidence or foundation that the suicide note is the same note that the plaintiff husband received personally from his wife on 18 August 2003. The note alone fails to support the plaintiff’s assertion that the plaintiff’s decedent committed suicide. Even assuming arguendo the truth of plaintiff’s expert’s opinion that the decedent in fact committed suicide, there is no evidence that doctor-two departed from the standards of good and acceptable medical practice. Significantly, there is no allegation that doctor-two departed from those standards of care applicable to an internist. Doctor-two is not subject to liability for any alleged failure to exercise the degree of skill and care expected of a specialist in psychiatry.

Thus, defendant doctor-two’s motion for summary judgment is granted.

On doctor-three’s and SNCH’s motion:

It is a well-established principle of medical jurisprudence that no liability obtains for an erroneous professional medical judgment. This rule is applicable to psychiatry. Therefore, for liability to ensue, it must be shown that the decision to release a psychiatric patient was something less than a professional medical determination. Evidence of a difference of opinion among experts does not provide an adequate basis for a prima facie case of malpractice.

Here, the court finds that the findings on the toxicology report are consistent with the ingestion of 2 tablets of Fiorcet but in no event more than 4 tablets and that the amount was not sufficient to induce unconsciousness, nor is ingestion of pills in this amount consistent with an attempt to commit suicide by drug overdose; that the decedent’s death was most likely accidental, if not the product of an intentional act of a third party, which would be consistent with the findings of the Medical Examiner. The death certificate and Medical Examiner’s report is properly accepted as proof of causation.

Thus, in light of defendants’ showing of entitlement to judgment as a matter of law, the burden now shifts to plaintiff as the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial.

Plaintiff then submits the opinions of two of the same experts as those offered in opposition to defendant doctor-two’s motion: namely, a forensic pathologist and a psychiatrist.

Here, doctor-three was aware of the patient’s gynecological concerns, discussed the patient’s infidelity with her and actually met with the marriage counselor, brought to the hospital by the plaintiff. As a rule, a mere difference of opinion among experts does not provide an adequate basis for a prima facie case of malpractice. Thus, the Court finds that plaintiff’s expert has failed to raise a question of fact as to whether doctor-three’s decision to discharge the decedent was something less than a professional medical determination. A physician’s duty is to provide the level of care acceptable in the professional community in which he practices. He is not required to achieve success in every case and cannot be held liable for mere errors of professional judgment; neither are psychiatrists required to be omniscient when making a diagnosis. Where a treatment decision is based upon a careful examination, an expert’s opinion that an alternative treatment should have been followed is insufficient to establish a prima facie case of malpractice. Prediction of the future course of a mental illness is a professional judgment of high responsibility and, in some instances, involves a measure of calculated risk. The mere fact that plaintiff’s expert would have opted for a different treatment represents at most a difference of opinion, which is not sufficient to sustain a prima facie case of malpractice. The affidavits of plaintiff’s experts are conclusory in nature and unsupported by competent evidence tending to establish the essential elements of medical malpractice.

Thus, plaintiff has failed to rebut defendants’ prima facie entitlement to summary judgment.

Moreover, plaintiff’s expert pathologist relies on the suicide note in forming his opinion that the decedent committed suicide but fails to offer any evidence or foundation that the note the decedent left behind and the police later discovered as part of their investigation, is not the same note that plaintiff husband received personally from his wife on August 18. The expert does not address plaintiff’s testimony and the Medical Examiner’s report that indicates it is the same note.

Thus, based solely on the single note, there is no evidence that the decedent committed suicide.

Furthermore, the cause of death has been found to be “Undetermined” by the Medical Examiner. The pathologist’s opinion was based on impermissible speculation that the August 19th overdose was a suicide attempt, which buttressed his conclusion that the August 25th incident was also a suicide attempt. The pathologist failed to address the defendants’ expert opinion and the finding of the Medical Examiner that the decedent had not overdosed or committed suicide and though he speculated homicide was unlikely, he did not establish the cause of death as a suicide, nor did he rule out accident or murder. Plaintiff failed to lay bare proof that the allegedly premature release of the decedent was the proximate cause of her death by suicide; there was no proof that the decedent committed suicide. The plaintiff’s expert opinions are conclusory in nature, unsupported by competent evidence and are, thus, insufficient to defeat defendants’ entitlement to summary judgment.

Thus, plaintiff has failed to submit competent evidence showing a departure from accepted medical practice and a nexus between the alleged medical malpractice and the plaintiff’s injury.

Hence, the motion by defendants, doctor-three and SCNH, for summary judgment is granted and the complaint is dismissed.

For the best legal advice on matters similar to the above, contact Stephen Bilkis & Associates for a Nassau County Personal Injury Lawyer. Confer with our Nassau County Medical Malpractice Attorneys, among others. Consult with the best, highly skilled and well experienced legal professionals in the country free of charge.

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