This family case arises out of the death of a decedent on August 25, 2003. Plaintiff, Administrator, husband of the decedent, brings this action for medical and psychiatric malpractice against a hospital and 3 doctors.
The medical and psychiatric history of the decedent, a 51 year old married woman at the time of her death, is as follows. Decedent gave birth to triplet daughters in 1982. After the birth of her daughters, she experienced postpartum depression and was, for a brief period of time, hospitalized in the psychiatric ward of the hospital where she gave.
On or about August 12, 2003, her daughter attempted suicide by taking “pills” after her friends’ drowning deaths. The husband testified at his deposition that Decedent also was depressed as a result of the children’s death and their daughter’s suicide attempt. On August 15, 2003, the child sought psychological care. She was accompanied by her parents to the appointment.
Five days after her daughter’s suicide attempt, on August 17, 2003, Deceased drove herself to the Emergency Room (hereinafter “ER”) at New York University Hospital. Upon learning where she had gone, the husband went there to meet her. In the ER, the deceased confessed that she had had an extramarital affair about 2 months earlier and that she was afraid she had contracted a sexually transmitted disease.
Thereafter, the spouses after returning home from the hospital that night had an argument concerning her affair and discussed divorce. Ultimately, they decided to hold off on making any decisions until their daughters left for college later that month.
The next morning, the deceased was extubated. A registered nurse, testified that it was difficult to provide emotional support to her because she was not talking much that day. Thereafter the doctor obtained a psychiatric consultation for the deceased, who, practiced at the hospital. Upon examining the deceased at her bedside noted that she was alert and oriented and was not suicidal or delusional. She identified her betrayal of her husband by having an affair, her daughter’s problem and the recent loss of family friends as stressors. She also expressed concern regarding her medical condition.
The diagnosis was that deceased was “suffering from a major depressive disorder and that she was status post an overdose attempt”. As a result, she started the deceased 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.
On the morning of August 25, 2003, at 9:00 A.M., the husband contacted the doctor insisting on seeing her immediately. He 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 the deceased about her infidelity the preceding night and that she was at home resting when he left her that morning.
When the husband returned home that morning, he found the deceased submerged in the bathtub. The bathroom door had been locked. Deceased was still wearing her underwear, though submerged in the tub. He pulled her out of the tub and forced water out of her mouth and chest. He then called the police. Deceased was taken back to the hospital 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 on the deceased.
During the investigation into Deceased’s death, the Police Department found an undated note written by her in which 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.
In bringing this malpractice action, plaintiff alleges that the doctor departed from accepted medical practice in discharging the decedent from SNCH on August 23, 2003 because the discharge deprived the decedent of an opportunity to avoid suicide on August 25, 2003.
In moving for summary judgment dismissal of plaintiff’s complaint, the doctor argues that plaintiffs claims as against her must fail on the grounds that, inter alia, deceased was never her patient. Plaintiff does not oppose the motion. Nevertheless, this Court is not relieved of its obligation to ensure that the movant has demonstrated her entitlement to the relief requested.
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, the doctor, was the decedent’s daughter, therapist and the plaintiff’s therapist.
“The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) 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”
Inasmuch as defendant’s expert, the affirmation “addresses the facts as contained in the medical record” and responds to plaintiffs claims in the bill of particulars, the expert affirmation is competent evidence that defendant, the doctor 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, with respect to the whether she was ready to be discharged from a psychiatric standpoint.
Based upon defendant’s deposition testimony coupled with the Affirmation, defendant 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.
Plaintiff’s psychiatric and internist experts also claim that despite the psychiatric clearance for discharge, Dr. Khan should have kept the decedent in the hospital for further psychiatric treatment and evaluation. Such conclusory opinions are insufficient to raise a triable issue of fact concerning proximate cause.
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.
Finally, plaintiffs’ forensic pathologist expert states that plaintiff’s decedent’s death was a suicide because: the most telling evidence of [Deceased’s] intention to take her own life is suicide note, in which she wrote that she had done something “shameful” and that she was “running away.” Furthermore, less than a week earlier, she had attempted to take her own life by ingesting a large enough quantity of Xanax pills to induce respiratory distress requiring intubation and intensive medical care.
Plaintiff’s expert pathologist fails to offer any evidence or foundation that this note is not the same note that the plaintiff received personally from his wife on August 18, 2003. In his reply papers, defendant submits a “Nassau County Telephone Notice of Death” Form, which states, in pertinent part, that the Police Department, in investigating the plaintiffs home on the morning of August 25, 2003 “found a note in the bedroom in which she expressed sorrow for what she had done”. That note alone fails to support the plaintiffs assertion that the plaintiffs decedent committed suicide.
“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 (Id). Therefore “[f]or 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, defendants contend that the discharge of the plaintiffs decedent from the hospital on August 23, 2003 was a matter of professional judgment, and that they cannot be held liable in malpractice for the patient’s subsequent death allegedly by suicide two days later.
The need for outpatient therapy was discussed and the patient was referred to an outpatient psychiatric facility for follow up care. The patient and her husband agreed to go for marriage counseling and in fact, the doctor met with the marriage counselor and discussed the ongoing care of the patient, prior to her discharge and his final consultation with the patient.
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 nor 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 it 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 and thus plaintiff has failed to rebut defendants’ prima facie entitlement to summary judgment.
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 Deceased left behind and the police later discovered as part of their investigation, is not the same note that plaintiff received personally from his wife on August 18. The expert does not address plaintiff’s testimony and the Medical Examiner’s report that indicate it is the same note. Thus, based solely on the single note, there is no evidence that Deceased committed suicide on August 25, 2003.
Again, 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 defendant’s expert opinion and the finding of the Medical Examiner that the decedent had not overdosed or committed suicide on August 25, 2003, 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. In fact, Plaintiff tendered no proof that the decedent committed suicide, and in light of the record, such a finding would be pure speculation and unsupported by the evidence of this case. The plaintiff’s expert opinions are conclusory in nature, unsupported by competent evidence and thus are insufficient to defeat defendants’ entitlement to summary judgment. Plaintiff has failed to submit competent evidence showing a from accepted medical practice and a nexus between the alleged medical malpractice and plaintiff’s injury.