Opinion
26282/05.
Decided May 19, 2009.
Baron Associates, Attorney for plaintiff.
Callan, Koster, Brady Brennan, Kaufman, Borgeest Ryan, Attorney for defendants.
Defendants, Anthony Cipolla, M.D. and Frank Maurio, Ph.D, individually, move this court for an Order granting summary judgment pursuant to CPLR § 3212 in their favor, as a matter of law, on the grounds that there are no triable issues of fact that would warrant a trial. The City of New York, The New York City Fire Department (the "City"), Gerard Moriarty and Ira Feirstein, M.D. (as employees of the City) move to dismiss pursuant to CPLR 3211 (a)(7) for failure to state a cause of action against them and, in the alternative, for summary judgment in their favor as a matter of law, in that there are no genuine triable issues of fact that would warrant a trial as to these defendants. Plaintiff opposes the motions of Dr. Cipolla and City employee, Gerard Moriarty, and submits an expert affidavit in support thereof. Plaintiff does not oppose the motions of Frank Maurio, M.D. or Ira Feirstein, M.D.
Now, upon the foregoing and upon oral argument on March 19, 2004 and due deliberation had thereon, defendants', Anthony Cipolla, M.D., The City of New York, The New York City Fire Department and Gerard Moriarty, motions for summary judgment are GRANTED and there being no opposition to the applications of defendants, Frank Maurio, M.D. and Dr. Feirstein, their motions for summary judgement are Granted. Accordingly, the Complaint is dismissed in its entirety.
This is an action sounding in medical malpractice alleging improper care and treatment of plaintiff's decedent resulting in his suicide on December 8, 2004. Plaintiff alleges that all defendants, individually, failed to properly treat decedent's emotional and psychological problems. Specifically, she claims that Dr. Cipolla failed to monitor decedent while prescribing psycho tropic medication; and, as to Mr. Moriarty, plaintiff claims the he failed to perform a complete assessment of decedent's mental status. Plaintiff claims that these failures were the proximate cause of decedent's suicide. (The allegations against Dr. Maurio and Dr. Feirstein will not be discussed in detail as plaintiff does not oppose their motions for summary judgment.)
The decedent, James Manganaro, a 40 year old New York City Firefighter came under the care and treatment of the defendants on various occasions from 2001 to December 2004. His complaints included anxiety, panic attacks, depression and inadequacy. Decedent saw defendant, Dr. Cipolla, his primary treating physician, from April 2001 through October 2004. During that time, Dr. Cipolla prescribed medication to treat his depression, anxiety and post-traumatic stress. Dr. Cipolla also treated decedent for minor ailments such as colds, allergies, etc. Over the years, he prescribed Paxil, Wellbutrin, Zoloft and Zyprexa to the decedent. Concurrently, from May 30, 2001 to January 2003, the decedent saw Dr. Maurio, a psychologist, who was referred by Dr. Cipolla. On or about September 5, 2002, decedent sought counseling from the New York City Fire Department Counseling Service, an employee benefit program, where he was assigned to Licensed Clinical Social Worker, Gerard Moriarty. He received counseling from that service until December 2, 2004. To determine his fitness for duty status as a NYC firefighter, decedent was evaluated on August 23, 2004 and on August 27, 2004 by Dr Feirstein on behalf of The New York City Fire Department.
The decedent first saw Dr. Cipolla on April 27, 2001 complaining of increased stress as his wife had become pregnant. Dr. Cipolla prescribed Paxil 20 mg and referred decedent to defendant, Dr. Maurio for psychotherapy. On October 19, 2001, when decedent complained of anxiety and nightmares since the World Trade Center attack, Dr. Cipolla increased Paxil to 40 mg. In 2002, Paxil 40 mg was refilled in April and increased in June 2004 to 50 mg when decedent complained it was not working and that he was suffering from insomnia and "sweats".
On August 20, 2002, Wellbutrin was added to Paxil 50 mg and decedent was instructed to continue therapy with Dr. Maurio. On November 27, 2002 and again on February 24, 2003, Dr. Cipolla's office approved refills for Wellbutrin SR 150mg.
In March 2003, decedent returned to Dr. Cipolla's office reporting side effects related to Paxil; particularly, jaw clenching, abdominal discomfort, disturbed sleep and anxiety. The impression was post ttraumatic stress syndrome. The plan was to wean him off Paxil, to increase Wellbutrin then start Zoloft in one month. A trial of Zyprexa for sleep disturbance was ordered. Decedent was seen twice in April 2003 by Dr. Cipolla with complaints of increased panic attacks. He was told to continue to wean off Paxil, to increase Wellbutrin. He was to return in 3 weeks.
In July 2003, when decedent complained of increased anxiety, Dr. Cipolla increased Zoloft to 100mg and maintained Wellbutrin at the same dosage. Decedent returned to Dr. Cipolla's office on October 16, 2003 complaining that Zoloft was not working and advised that Dr. Maurio recommended Effexor in place of Zoloft. Dr. Cipolla directed decedent to stop Zoloft, start Effexor and to change Wellbutrin to XL150 mg. After a week trial of the new medications, Xanax was added because the decedent complained the medications were not working. Dr. Cipolla next saw decedent on November 25, 2003, and again, on December 15, 2003. He was still taking Wellbutrin and Effexor.
In 2004, decedent was seen in Dr. Cipolla's office in January, February, April for physical ailments. His psychotropic medications were noted, refilled or changed on those occasions. On May 3, 2004, Dr. Cipolla's office faxed prescriptions for Wellbutrin XL 150mg, Effexor XL 150 mg and allergy medications. On June 30, 2004 decedent was seen for vertigo and a viral infection. His medications included Wellbutrin and Effexor . On July 6, 2004, Dr. Cipolla gave him a prescription for Clarinex for his allergies. On August 27, 2004 decedent missed his appointment. Decedent next saw Dr Cipolla on October 1, 2004 complaining of urinary problems. This was decedent's last contact with Dr. Cipolla.
Dr. Cipolla's records reflect that while decedent was under his care, decedent never expressed any suicidal ideations to him. Plaintiff concedes that Dr. Cipolla was not informed that decedent expressed suicidal ideation on August 22, 2004.
While decedent was followed by Dr. Cipolla, he received counseling from Dr. Maurio until January 2003 and from Mr. Moriarty from September 5, 2002 to December 2, 2004. Decedent's emotional complaints focused on the major stresses in his life including job stressors relating to his experience at the World Trade Center site. He also discussed problems with sexual addiction, anxiety, depression, grief, bereavement, marital discord resulting from his extramarital relationships and financial and situational stress.
Plaintiff alleges that decedent fell into a "crisis period" from August 2004 until his suicide on December 8, 2004. On August 22, 2004, Mr. Moriarty received a phone call from the decedent expressing suicidal ideation. He had problems dealing with his wife, from whom he was separated, and with his girlfriend. Decedent had a conversation with Mr. Moriarty about his thoughts and feelings. Mr. Moriarty ascertained that decedent had no plan to kill himself and they entered into a verbal contract whereby decedent promised not to hurt himself. Mr. Moriarty arranged to place decedent on light duty and referred him to Dr. Feirstein, of the FDNY Bureau of Health Services, so to follow up on his duty status.
The next day, he was seen by defendant, Dr. Feirstein, who performed a psychiatric examination to assess his fitness for duty as a firefighter. Dr. Feirstein noted that decedent said that regarding suicide, he would "never do that", but that "at times the burdens of his life mounted to a painful level." Decedent added that he had an argument with his girlfriend because of the frequency of the telephone calls he had been receiving from his wife. His wife called to "annoy him". Decedent had "fallen in love" with his girlfriend, who had not known that he was married until early 2004. Following his assessment, Dr. Feirstein ordered that decedent be placed on light duty. When decedent returned to Mr. Moriarty on August 24, 2004, he reported he was more at ease. Decedent was re-evaluated by Dr. Feirstein on August 27, 2004 and was returned to full duty because his suicidal ideation had ceased. Dr. Feirstein did not see decedent again.
Decedent went back to see Dr. Cipolla on October 1, 2004 complaining of urinary problems. He did not inform Dr. Cipolla that he had had suicidal ideation in late August. To address his urinary complaints, antibiotics were prescribed to treat a urinary tract infection. A few days after the visit, on October 6, 2004, decedent contacted Dr. Cipolla again because he was experiencing muscle cramps from the antibiotics prescribed. The antibiotic was changed from Tegrin to Doxicycline. Decedent did not contact Dr. Cipolla's office again. Plaintiff concedes that at no time was Dr. Cipolla apprised of decedent's suicidal ideation.
Between August and December 2004, decedent continued to see Mr. Moriarty. His last personal contact with Mr. Moriarty was on December 2, 2004 during which they discussed decedent's compliance with medications and his relationship problems. No suicidal thoughts were discussed at that time.
On December 7, 2004, the plaintiff, Susan Eckman, from whom decedent was separated, received a call from the decedent expressing distress. In turn, plaintiff called Mr. Moriarty and advised him of her concern for decedent. Mr. Moriarty called decedent on his cell phone thereby assessing his emotional status. Decedent expressly denied suicidal or homicidal ideation. They discussed decedent's desire to go home to his daughter and his house and the possibility of living in a separate bedroom until the marital situation could be resolved. Decedent expressed his intent to stay at the marital home. Mr. Moriarty made himself available by telephone to the decedent.
On December 8, 2004, when decedent went to the marital home, Ms. Eckman informed him that she was seeing another man and was moving on with her life. Decedent got angry and punched plaintiff in the face. Ms. Eckman ran out of the house and called the police from a neighbor's house. When the police arrived, they heard a gun shot as they sought to open the garage door. Decedent was found with a fatal self-inflicted gunshot wound to the head.
Summary judgment is a drastic remedy and should not be granted when there is any doubt as to the existence of a material and triable issue of fact. Henderson v City of New York, 178 AD2d 129 (1d Dept 1991); Coley v Michelin Tire Corp., 99 AD2d 795 (2d Dept 1984); Rosen v Intermedics, 203 AD2d 271 (2d Dept 1994). The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted standards of medical practice and evidence that such a departure was a proximate cause of the plaintiff's injury. Keevan v Rifkin, 41 AD3d 661, 662 (2d Dept 2007); DiGaro v Agrawal, 41 AD3 764, 767 (2d Dept 2007); Holbrook v United Hospital, 248 AD2d 358, 359 (2d Dept 1998). "On a motion for summary judgment, a 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" Keevan, supra at 662, quoting Williams v Sahay , 12 AD3d 366 , 368 (2d Dept 2004); DiGaro, supra at 767, quoting Chance v Felder , 33 AD3d 645 , 645-646 (2d Dept 2006).
Once a prima facie showing of entitlement to summary judgement, as a matter of law is made, the plaintiff must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician so as to demonstrate the existence of a triable issue of fact. Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986). A plaintiff must submit a physicians's affidavit of merit attesting to a departure from accepted practice and containing the doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury. Keevan, supra at 662; Thompson v Orner , 36 AD3d 791 , 792 (2d Dept 2007). General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant's summary judgment motion. Starr v Rogers , 44 AD3d 646, 648 (2d Dept 2007); Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986); see also Keevan, supra at 662 [general allegations that are conclusory and unsupported are insufficient to defeat summary judgment].
In the instant case, defendant, Dr. Cipolla, through his expert, Dr. Lubit, contends that the medical care and treatment rendered by Dr. Cipolla to decedent was proper and did not deviate from medical standards of care and that decedent's suicide was not the result of medical negligence by Dr. Cipolla or his staff. Dr. Lubit discusses medical principles relative to depression, treatment thereof and the standard of care relative to treatment of depression and to risk of suicide. The expert opined that the medications, changes in medications, combinations of medications and dosages of medication used were appropriate for the treatment of depression, anxiety and post traumatic stress syndrome. He affirmed that none of the medications posed a risk of suicide to the decedent. Decedent had been taking the same medications for months and that risk of suicide is greatest at the time treatment is initiated.
The expert notes that decedent did not report the events of August 2004 to Dr. Cipolla nor expressed suicidal ideation to him at any other time. The expert states that decedent could not cope with the need to give up his wife or his girlfriend and that is very speculative to claim that a different combination of medications would have enabled him to better deal with his problem such that he would not have committed suicide.
Plaintiff's expert, Dr. Kirstein, states that plaintiff's primary allegation against Dr. Cipolla is that he failed to heed to plaintiff's condition and failed to properly monitor his condition. Dr Kirstein states that Dr. Cipolla failed to follow the decedent after rendering psychiatric drug therapy, failed to monitor decedent and failed to communicate with decedent. It is the opinion of Dr. Kirstein that these failures were deviations from the standards of medical care and that these departures were substantial factors in causing the decedent's ultimate suicide. He states, that in his opinion, "it is more likely than not that such a medical intervention during the fall of 2004 would have helped plaintiff's decedent's coping skills and would likely have prevented his ultimate suicide and ensuing death.
Despite the many departures enumerated in his affirmation, Dr. Kirstein does not state how any departure was a proximate cause of the suicide. He does not state the standard for "medical intervention" nor does he state what coping skills should have been developed or how they were to be developed. The expert does not offer any evidence to explain how Dr Cipolla's alleged departures caused the suicide, instead, his opinions as to causation are general and unsubstantiated.
In a medical malpractice action, a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice of medicine and containing a doctor's opinion that the defendant's departures were a competent producing cause of the injury. Alvarez v Prospect Hospital, supra. Conclusory opinions are insufficient to raise a triable issue of fact concerning proximate cause. Mosezhnik v Berenstein , 33 AD3d 895 (2d Dept 2006); Dellacona v Dorf, 5 AD3d 625 (2d Dept 2004); Kaplan v Hamiliton Medical Asociates; 262 AD2d 609 (2d Dept 1999); Amsler v. Verrilli, 119 AD2d 786 (2d Dept 1986).
As plaintiff failed to raise a triable issue of fact that Dr. Cipolla's alleged departures proximately caused decedent's suicide, summary judgment must be granted in favor of Dr. Cipolla.
As to Mr.Moriarty, although he is not a psychiatrist or psychologist, he is a licensed counselor and rendered counseling services to the decedent. In the field of mental health, it is well settled that a psychiatrist may not be held liable for a mere error in judgment. Weinreb v Rice, 266 AD2d 454 (2d Dept 1999); Ibguy v. State of New York, 261 AD2d 510, (2d Dept 1994); Darren v Safier, 207 AD2d 473 (2d Dept 1994). However, the decision must be a result of a careful professional examination. A psychiatrist may be held liable if a treatment decision was "something less than a professional medical determination." Bell v New York City Health and Hospitals Corporation, 90 AD2d 270 (2d Dept 1982). "A decision that is without proper medical foundation,
that is, one which is not the product of a careful examination, is not to be legally insulated as a professional medical judgment." Bell v. New York City Health Hospitals Corp., supra at 280-281; Seibert v. Fink, 280 AD2d 661 (2d Dept 2001).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. Darren v. Safier, 207 AD2d 473 (2d Dept 1994).
Defendant, Mr. Moriarty, submits two medical affidavits; one from a clinical social worker and the other from a psychiatrist. Both experts reviewed the records and opined that the evaluation of decedent conducted by Mr. Moriarty on August 22, 2004 was a complete suicidal assessment. The clinical social worker stated that each and every one of the steps taken by Mr. Moriarty was integral to a thorough suicidal assessment. The psychiatrist also opined that Mr. Moriarty conducted a thorough suicidal assessment by evaluating the decedent's mental status, providing hotline phone numbers, contacting the commanding officer to reassign his duty status and entering into a no-suicide contract. The expert stated that all of Mr. Moriarty's actions reflect his knowledge and ability to conduct a thorough suicidal evaluation.
Mr. Moriarty's last contact with decedent was on December 7, 2004. Plaintiff, Susan Eckman, called Mr. Moriarty stating that she was concerned about decedent. The records show that Mr. Moriarty called decedent on his cell phone. During their 22 minute conversation, decedent did not express any suicidal ideations. The decedent conveyed his desire to go back to the family home as he missed his daughter and his house. They discussed various sleeping arrangements so he can stay at home until their marital issues are resolved. Decedent stated that would move forward with the plan to return home. Mr. Moriarty encouraged decedent and advised to call him again, if decedent so needed.
The expert social worker stated in her affirmation that in concluding that decedent was not suicidal on December 7, 2004, Mr. Moriarty questioned and explored decedent's desires and
thoughts in detail. The expert said that Mr. Moriarty arrived at this conclusion based on his relationship with the decedent, previous history, decedent's presentation, and decedent's denial of having suicidal thoughts. She found it notable that decedent desired and planned to return to the marital home. Formulating plans for the future is evidence of the the absence of suicidal ideation. She adds that as there was no evidence that decedent was in imminent danger to himself or others at the time Mr. Moriarty evaluated the risk of suicide, the standard did not require that Mr. Moriarty contact the police, other agencies or family members. She affirms that the standard is that a clinical social worker is required to contact others only when the social worker, in the exercise of professional judgement, assesses that the client is in danger of hurting himself or others. It would be a violation of confidentiality to have contacted anyone when there is no imminent danger to self or others.
Defendant, Mr. Moriarty's expert psychiatrist's affirmation in essence states the same facts and opinions as that stated by the clinical social worker as to the events of August to December 7, 2004.
Plaintiff's expert, on the other hand, does not state the manner in which Mr. Moriarty's evaluation of decedent on both occasions, was not the product of a careful examination; rather he summarily states that Mr. Moriarty engaged in multiple acts and omissions which constituted departures from good and accepted standards of mental health care. The expert does not state the standard from which Mr. Moriarty deviated. He does not review nor comment on the steps Mr. Moriarty took to evaluate whether decedent was in imminent danger to himself or others on August 22, 2004 and on December 7, 2004. He does not give a professional opinion on how Mr. Moriarty's evaluation of decedent was not careful and complete. He does not challenge the thoroughness of Mr. Moriarty's assessment. There is no factual basis for his conclusion that Mr. Moriarty deviated from good and accepted medical and/or psychiatric practices.
It should be noted that despite a lengthy affirmation, plaintiff's expert only offers, as criticism, the claim that Mr Moriarty should have sought consent from decedent to contact Dr. Cipolla in order to have decedent's medications changed and thereby "reduce his growing sense of desperation." Assuming this is a valid claim, this only amounts to a differing medical opinion. That the plaintiffs expert would have opted for different treatment without more, represents at most, a difference of opinions among providers, which is not sufficient to sustain a prima facie case of malpractice. Topel v Long Island Jewish Medical Center, 55 NY2d 682, 684 (1981); Ibuy v State, 261 AD2d 510 (2d Dept 1999).
The Court of Appeals has consistently held that a conclusory expert affidavit, devoid of evidentiary foundation is insufficient to defeat summary judgment. Romano v Stanley, 90 NY2d 444, 451-452 (1997); Di Sanza v City of New York , 11 NY3d 766 , 767 (2008). Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, the opinion should be given no probative force and is insufficient to withstand summary judgment. Diaz v. New York Downtown Hosp., 99 NY2d 544 (2002); Romano v. Stanley, 90 NY2d 444, 451-452 (1997); Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 533-534 (1991). An affidavit from an expert which sets forth only general conclusions, misstatements of evidence and unsupported assertions, is insufficient to demonstrate that defendants failure to comport with accepted medical practice, or that any such failure was the proximate cause of decedent's injuries. Coronel v. New York City Health Hosps. Corp. , 47 AD3d 456 (2008). Speculative expert's affirmation has no probative value and is insufficient to raise a triable issue of fact. Volovar v Catholic Health System of Long Island, Inc. , 58 AD3d 830 , 2009 NY Slip Op. 00527.
Here, plaintiffs' expert affirmation is replete with conclusions and hindsight speculation as to proximate cause. The conclusory and speculative assertions made by the plaintiff's expert are insufficient to demonstrate the existence of a triable issue of fact. As such, the expert's affirmation lacks probative force and is insufficient, as a matter of law, to overcome the defendant's motion for summary judgment.
Furthermore, plaintiff's expert's opinion assumes that Mr. Moriarty had control over the decedent. Generally, a doctor does not have sufficient control over a voluntary outpatient to impose liability. Wagshall v Wagshall, 148 AD2d 445 (2d Dept 1989); Rebollal v Payne, 145 AD2d 617 (2d Dept 1988); Cartier v Long Is. Coll. Hosp., 111 AD2d 894 (2d Dept 1985).
The actions is also dismissed against The City of New York and The New York City Fire Department, as they are named defendants based on the theory of respondeat superior arising from the claims dismissed herein against defendants, Gerald Moriarty and Ira Feirstein, M.D.
This constitutes the decision, opinion and order of this court.