Opinion
# 2018-038-528 Claim No. 125298 Motion No. M-89255 Cross-Motion No. CM-89852
03-14-2018
KRISTEN PLITNICK-SULLIVAN as the ADMINISTRATRIX of the ESTATE of JAMES E. PLITNICK (A/K/A DAVID ALEXANDER)
GUGLIOTTA & PONZINI, P.C. By: John C. Gugliotta, Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Joan Matalavage, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment denied. Claimant's decedent committed suicide 6 days after discharge from hospital. Defendant contends that the "professional judgment" rule precludes liability, but defendant has failed to demonstrate that it complied with the standard of care in evaluating the decedent's suicide risk, and therefore, failed to make a prima facie showing of entitlement to judgment as a matter of law. In opposition, moreover, claimant raised triable issues of material facts with regard to defendant's compliance with the standard of care, and thus defeated any right to summary judgment that may have been demonstrated. Claimant's cross-motion for permission to amend the bill of particulars granted in the absence of prejudice to defendant.
Case information
| UID: | 2018-038-528 |
| Claimant(s): | KRISTEN PLITNICK-SULLIVAN as the ADMINISTRATRIX of the ESTATE of JAMES E. PLITNICK (A/K/A DAVID ALEXANDER) |
| Claimant short name: | PLITNICK-SULLIVAN |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125298 |
| Motion number(s): | M-89255 |
| Cross-motion number(s): | CM-89852 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | GUGLIOTTA & PONZINI, P.C. By: John C. Gugliotta, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Joan Matalavage, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 14, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The caption of the claim has been amended sua sponte to reflect the State of New York as the only proper defendant on this claim.
Decision
Claimant is the administratrix of the estate of her brother, James Plitnick. This claim seeks compensation for damages arising from Plitnick's death by suicide days after being discharged from the Capital District Psychiatric Center (CDPC). The claim alleges, among other things, that defendant failed to properly monitor, treat, assess and diagnose Plitnick (see Claim No. 125298, ¶¶ 17; 20), and it asserts causes of action sounding in wrongful death, Plitnick's pain and suffering, medical malpractice, and loss of support for decedent's then-minor sons. Defendant moves for summary judgment dismissing the claim (M-89255). Claimant opposes the motion, and cross-moves to serve a second amended and/or supplemental bill of particulars (CM-89852), which defendant opposes.
It is noted that defendant submits claimant's initial response to its demand for a bill of particulars dated May 8, 2015 (see Matalavage Affidavit, Exhibit C), while claimant served an amended response to defendant's demand for a bill of particulars on July 14, 2016 (see Gugliotta Affirmation, Exhibit C), prior to the date of defendant's motion. The discrepancy is of no moment on the motion for summary judgment, as the amendments appear to include only additional particulars related to damages (loss of parental guidance). Reference throughout this decision shall be made to the extant amended bill of particulars, as its existence is relevant to claimant's cross motion in which she seeks permission to serve a second amended bill of particulars.
The following is alleged in the claim. On October 15, 2013, James Plitnick attempted to commit suicide by ingesting large amounts of alcohol and then driving, but he was arrested on that date for driving while intoxicated. On October 17, 2013, police officers found Plitnick in a highly intoxicated state attempting to commit suicide by jumping off a bridge. Plitnick was brought by the police to the Emergency Department of Albany Medical Center (AMC ED) from which he was later transferred to the CDPC Crisis Intervention Unit (CIU). The claim alleges that Plitnick was released from CDPC later the same day "[d]espite an extensive history of mental illness and substance abuse, being detained by police twice while attempting suicide being brought to the hospital because he had attempted suicide, and vocalizing a continued desire to kill himself" (Claim number 125298, ¶ 15). The claim alleges that Plitnick committed suicide within 48 hours of his discharge from CDPC, although the undisputed proof submitted on the summary judgment motion demonstrates that he committed suicide on October 24, 2013, six days after discharge.
Plitnick's medical records and his death certificate demonstrate that when he was brought to AMC ED by the Albany Police Department on October 17, 2013 after having been found attempting to jump from a bridge, Plitnick identified himself as David Alexander and stated that he attempted to take his life and that he had a history of depression and suicide attempts (see Gugliotta Affirmation, Exhibit F [Snyder Emergency Department-Admit-Transfer Note, p.1]). Plitnick was noted to be acutely intoxicated and in a highly agitated state, verbalizing threats and attempting to elope, and he was placed in restraints for a brief period of time (see id. [AMC Nursing Documentation for Behavioral Restraints]). He remained at the AMC ED until the early morning hours of October 18, 2013, when, after a breathalyzer did not detect the presence of alcohol (see id. [Snyder Emergency Department Admit-Transfer Note, p.2]), he was transferred to the CDPC CIU along with his AMC ED medical record.
Plitnick was received in the CIU at 4:00 a.m. and was first evaluated by MSW Emily Pietrafesa at approximately 5:00 a.m. Pietrafesa noted that he was homeless and in a disheveled and malodorous state, but that he was calm and cooperative during the evaluation (see id. [Pietrafesa Crisis Evaluation-History/Assessment Note, p.2-3]). She recorded that, per the AMC ED report, Plitnick had been intoxicated and had attempted to jump off a bridge, that he had a history of suicide attempts and had expressed suicidal ideation at the AMC ED, where he had been placed in restraints and given medication prior to his referral to the CIU (see id. [Pietrafesa Crisis Evaluation-Intake Note]). Plitnick told Pietrafesa that he had been in an intoxicated state earlier that evening and he had been told that he had climbed a fence to jump off a bridge, that he did not remember experiencing suicidal ideation, but that AMC ED staff had told him that he had expressed suicidal ideation. He reported that he had a history of depression and suicidal ideation but denied any suicide attempts, and he denied being under current mental health treatment. He stated that he had been hospitalized five years earlier at Putnam County Hospital for suicidal ideation. Pietrafesa noted that Plitnick was in a dysphoric mood and presented as hopeless and "feeling very miserable about the state of his life," but denied current suicidal ideation (see id., p. 4). Pietrafesa noted that Plitnick was homeless and did not have any friends or family to support him, and that he was dependent upon alcohol and had "poor impulse control while under the influence of alcohol" (id., p. 3). Pietrafesa's evaluation report stated that notwithstanding his denial of current suicidal ideation, Plitnick was at increased risk of suicide due to his poor impulse control under the influence of alcohol, history of suicidal ideations, no support system and lack of current mental health treatment, and she recommended "acute inpatient psychiatric hospitalization for safety, stabilization and treatment" (id., p.5). At 9:30 a.m., Plitnick was administered doses of Wellbutrin and Zoloft.
Upon later re-evaluation by RN Wayne Mart, Plitnick told Mart that he had a friend in East Durham with whom he could visit for awhile if discharged. Mart noted that Plitnick's "thoughts [were] logical, organized and future oriented" (id. [Extended/Re-Evaluation - Crisis Worker Note, p.1]), and concluded that Plitncik did not "present an imminent risk for harm to self or others and does not require emergency inpatient psychiatric hospitalization" (id.).
Dr. Verma evaluated Plitnick at approximately 3:00 p.m., and he noted Plitnick's brief prior admission to Putnam County Hospital for suicidal ideation and that Plitnick reported drinking alcohol the day before and could not "clearly recall the chain of events but he categorically denies any suicidal ideation, intent or plan" (Matalavage Affidavit, Exhibit E.1 [Verma Crisis Evaluation-Psychiatric Evaluation Note, at p. 1]). Plitnick denied suicidal ideation at the AMC ED and further denied "sustained depressed mood, anxiety; any sx mania, OCD or psychosis" (id.). Dr. Verma's notes state that Plitnick "lives with a friend in East Durham, we contacted him & he has no concerns; pt. will leave in a cab with a list of referrals, including . . . suicide hotline number & a strong recommendation to be abstinent from all mood-altering drugs" (id.). Dr. Verma noted that Plitnick was "AO X 3 . . . with good eye contact, clear logical speech and cooperative & honest with interview process," that his mood was "'OK now," that he was "slightly dysphoric, congruent, appropriate to context," that his judgment was "fair," and his impulse control was "good" (id., p. 1-2). Dr. Verma noted that Plitnick "appears at low to minimal risk of harm to self/others" (id., p.4), and Plitnick was found to be "not suicidal, not homicidal, not psychotic" (id., Exhibit E.1, p. 3 ["Time Out: 1425"]). Plitnick was discharged at approximately 2:25 p.m. on October 18, 2013 (see id. [CDPC Triage Report, p. 3]). He was given a discharge instruction to "Abstain from Alcohol" on a sheet that provided the telephone number of CDPC and contact information for several other "resources" (see id. [Crisis Intervention Program Discharge Instructions]). Plitnick departed the CDPC in a taxi cab, purportedly to the home of his friend in Durham. Six days later, Plitnick committed suicide (see Gugliotta Affirmation, Exhibit A, Exhibit 2).
In pertinent part, the claim alleges that Plitnick's death was due to:
"the recklessness, indifference, malpractice, and negligence of [CDPC], its agents and/or employees, which consisted of failing to afford [Plitnick] that degree of care customarily afforded to hospital patients under the same or similar circumstances, and ignoring and failing to provide for or to attend to the needs of [Plitnick]; failing to properly monitor [Plitnick]; failing to properly treat [Plitnick]; failing to provide treatment; failing to properly assess [Plitnick]; failing to properly diagnose [Plitnick]; failing to properly medicate [Plitnick]; failing to properly observe [Plitnick]; failing to follow guidelines and/or laws or regulations requiring an assessment and observation period for [Plitnick]; failing to observe [Plitnick] for a sufficient period of time."
(Claim No. 125298, ¶ 17 [emphasis in original omitted]). The claim alleges that CDPC "owed a duty of care to [Plitnick] to provide care in a manner consistent with good and accepted medical practices," and that CDPC defendant's agents knowingly, recklessly and/or negligently released Plitnick, "a suicidal psychiatric patent [sic] while he was still a known danger to himself" (id., ¶ 19, 28; see also, ¶ 18).
Claimant's bill of particulars (as amended) amplifies the following negligent acts alleged to have been committed by Dr. Verma, MSW Pietrafesa, RN Mart, and others:
"failing to consider/examine [Plitnick's] epidemiological factors; failing to consider/examine [Plitnick's] psychiatric disorders; failing to consider/examine [Plitnick's] medical history; failing to consider/examine [Plitnick's medical charts provided by [AMC] and completed by [AMC] employees and/or agents and or person with authority or apparent authority to act on behalf of [AMC]; failing to document why Dr. Manish Verma disregarded, or whether she [sic] even considered, . . . Emily Pietrafesa's documentation of [Plitnick's] circumstances; failing to consider/examine [Plitnick's] symptoms associated with suicide; failing to delineate the extent of [Plitnick's] suicidal ideations; failing to ascertain [Plitnick's] plans for furtherance and lethality; failing to hospitalize [Plitnick] in light of observable and documented suicidal ideation; failing to contact [Plitnick's] family members; failed to medicate; failed to recognize relevant risk factors indicating a foreseeable suicide attempt; failing to perform differential diagnosis; failing to make thorough and objective determination of [Plitnick's] suicidal ideations; and/or failing to make thorough and objective determination of [Plitnick's] risk of harm to himself and/or others; failing to administer the SAD PERSONS scale test, the Beck Depression Inventory, the Beck Hopelessness Scale, the IS PATH WARM suicide assessment test and/or other similar tests."
(Matalavage Affidavit, Exhibit C [Response to Defendant's Demand for Bill of Particulars] ¶ 3; see also ¶¶ 5-6).
It is well-established that a party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]), and that:
"[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.)"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). When a movant fails in the first instance to demonstrate its entitlement to judgment as a matter of law, its motion must be denied (see Winegrad v New York University Med. Ctr, 64 NY2d 851, 853 [1985]; Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], quoting Alvarez v Prospect Hosp., at 324).
Defendant's motion invokes the "professional judgment" rule and summarizes cases in which it was applied, but it presents no factual analysis or legal argument in support of its claimed entitlement to judgment as a matter of law. The professional judgment rule provides that a medical provider cannot be found liable in medical malpractice for an exercise of medical professional judgment that was made after careful evaluation, if a reasonably prudent doctor could have made the same decision (see Defendant's Memorandum of Law, at p.1-2, citing NY Pattern Jury Instruction, Civil 2:150). On the facts of this claim, defendant's exclusive reliance on the "professional judgment" rule does not warrant summary judgment, for the following reasons.
The rule is also referred to as the "error in judgment" rule which may be a misnomer, as the rule insulates physicians from liability for making a judgment in choosing between two or more medically acceptable alternatives, and not medical errors.
As relevant to this claim, a doctor owes his or her patient a duty to "use reasonable care and diligence" in diagnosing and treating the patient, and a breach of this duty may lead to liability if the doctor's conduct deviates from the applicable standard of medical care. "Implicit within the concept of due care is the principle that doctors must employ their 'best judgment in exercising . . . skill and applying [their] knowledge' " (Nestorowich v Ricotta, 97 NY2d 393, 398 [2002], quoting Pike v Honsinger, 155 NY 201, 209 [1898]; and citing Johnson v Yeshiva Univ, 42 NY2d 818 [1977]; Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682 [1981]). The fact that an injury was sustained subsequent to and allegedly as a result of a physician's exercise of professional judgment that proved to be inaccurate or ineffective does not necessarily render the doctor negligent, as not every instance of failed treatment or diagnosis is due to a doctor's failure to exercise due care (see Nestorowich v Ricotta, 97 NY2d at 398, citing Schrempf v State of New York, 66 NY2d 289, 295 [1985]). The professional judgment rule has developed to be narrowly applied where it has been shown that the doctor "considered and chose among several medically acceptable treatment alternatives" (Nestorowich v Ricotta, 97 NY2d at 399 [internal quotations omitted]). Thus, and even in the event of a bad patient outcome, the professional judgment rule "protect[s] against second-guessing of genuine exercises of professional judgment in treatment or diagnosis" (id.).
The professional judgment rule "is particularly relevant to cases involving mental health treatment, given that psychiatry is not an exact science and, therefore, decisions related to mental health and discharge involve a measure of calculated risk" (Gallagher v Cayuga Med. Ctr., 151 AD3d 1349, 1351 [3d Dept 2017]; see also, Cameron v State of New York, 37 AD2d 46, 49 [4th Dept 1971] quoting Taig v State of New York, 19 AD2d 182 [3d Dept 1963]). "[F]or a psychiatrist to be held liable for malpractice based upon a decision made in connection with a patient's treatment or decision to discharge a patient from a hospital, it must be shown that the treatment decisions represented something less than a professional medical determination . . . or that the psychiatrist's decisions were not the product of a careful evaluation" (Gallagher v Cayuga Med. Ctr., 151 AD3d, at 1351 [internal quotations and citations omitted, emphasis added]; see also Butler v Cayuga Medical Center, ___ AD3d ___, 2018 NY Slip Op. 00589 [3d Dept 2/1/2018]). In Gallagher, in which plaintiff's decedent committed suicide after being discharged from a hospital emergency room "[t]he gravamen of the complaint is that the decision to discharge decedent . . . was not grounded upon a proper mental health evaluation" (id., at 1350). Accordingly, on their motions for summary judgment, the defendant hospital and doctors " 'bore the initial burden of establishing that they did not depart from acceptable standards of care or that any such departure did not cause the injury' " (id., at 1351, quoting Longtemps v Oliva, 110 AD3d 1316, 1317 [ Dept 2013]). The defendants in Gallagher successfully met their burden with the affidavits of two psychiatric experts who, based on their review of the relevant records - including the decedent's medical records and the deposition testimony of both the RN who evaluated decedent and the psychiatrist who determined that it was safe to discharge the decedent - concluded that the discharge of the decedent hours before his suicide "was a reasonable medical judgment supported by a thorough psychiatric evaluation consistent with the standard of care" (id., at 1353). Thus, Gallagher demonstrates that a mental health provider's invocation of the professional judgment rule in defense of a decision to discharge a patient is applicable only to claims that allege that the decision "represented something less that a professional medical determination" (id., at 1351), and not to those alleging that the decision to discharge the patient followed a psychiatric evaluation that violated the relevant standard of care (see also Wulbrecht v Jehle, 89 AD3d 1420, 1471 [4th Dept 2011] [professional judgment rule inapplicable where pleading does not assert failure to use best judgment]).
The instant claim, as amplified by the amended bill of particulars, asserts that defendant's agents deviated from accepted standards of care by failing to perform an adequate psychiatric evaluation of Plitnick and his risk factors for suicide, including the failure to utilize any of several available objective suicide risk assessment tools, and thus the professional judgment rule cannot be used to insulate defendant from liability. Rather, to prevail on this motion for summary judgment, defendant must demonstrate prima facie that the decision to discharge Plitnick was the product of a careful evaluation that complied with the applicable standard of care (and that other alleged departures from applicable standards of care did not occur). The materials submitted by defendant include the pleadings, claimant's verified bill of particulars, Plitnick's medical records from AMC ED and CDPC from October 17 and 18, 2013, and the affidavits of Dr. Verma and Dr. Zvi Klopott, defendant's psychiatry expert. These documents, as noted above, must viewed in the light most favorable to claimant. Noticeably absent from defendant's submission are the transcripts of the depositions of Dr. Verma, MSW Pietrafesa, RN Mart, which are submitted by claimant in opposition to the motion for summary judgment.
In his affidavit in support of defendant's motion for summary judgment, Dr. Verma states that he reviewed the report of MSW Pietrafesa, including her notations that Plitnick "was calm and cooperative during the initial triage evaluation, [h]is memory and orientation were intact and his thought process appeared logical . . . [h]e denied current suicidal ideation, plan or intent . . . [and] had no intent or plan to harm himself " (Matalavage Affirmation, Exhibit E [Verma Affidavit] ¶ 6). Dr. Verma acknowledges that Pietrafesa "recommended that the patient be hospitalized for stabilization and treatment" (id.), and he states that "I later did a full psychiatric evaluation on the patient along with a more experienced RN Wayne Mart and we disagreed with Ms. Pietrafesa's recommendation" (id., ¶ 7). Dr. Verma avers that during the eight hours between Pietrafesa's triage examination and Verma'a psychiatric evaluation, Plitnick was observed by CIU staff members to be "calm and comfortable . . . compliant with staff and showed no signs of alcohol withdrawal . . . no anxious distress, no agitation and no signs of emotional dysphoria. He was interviewed and repeatedly denied a sustained depressed mood, any current or recent suicidal ideation . . . [or] any active of current suicide plan or any recent suicide attempt" and that while Plitnick was in the CIU "he was not distressed, nor agitated, he was not pacing, and I recall him sitting comfortably on a sofa" (id.). Dr. Verma further asserts that claimant was noted to be calm and cooperative during the 24 hours since he was released after 20 minutes in restraints when he initially arrived at AMC ED (see id.).
Dr. Verma's affidavit states that he "did [his] evaluation [of Plitnick] at approximately 3:00 pm on the same date" as Plitnick was triaged by Pietrafesa (see id.). He describes the evaluation as follows:
"In doing my evaluation I addressed all the relevant areas of a risk assessment according to the community standard of practice. I wanted to know whether his verbalizations were consonant with his behaviors, and whether he was exhibiting anxious distress that he was choosing not to express; no evidence of any discrepancy was found. I observed him in the milieu, and obtained detailed reports from staff. I also reviewed his records from [AMC ED] which are remarkable for being the baseline of any normative member of the community. In interviewing him, he showed no signs of anxiety or distress. I looked at the observations made by other staff. I noted that a half hour prior to my evaluation he was noted to be calm and cooperative. I looked for active symptomology indicating neurovegetative symptoms. He had slept, had an appetite and had a relatively normal energy level. He showed no loss of touch with reality. He was not complaining of being compelled by inner agitation, either to crave alcohol, or engage in potentially self-destructive behavior. I specifically recall evaluating his level of physiological anxiety since we had been provided information about his prior intoxication, but found him not to be suffering from either physiological distress or psychological anxiety. I recall this patient and found him to be highly intelligent; it is unfortunate that he misled us upon most essentials of his actual identity and his struggles. I did think that he might be a binge drinker, but did not note any signs of alcohol withdrawal."
(id., ¶ 8). Dr. Verma avers that Plitnick's stability in the community was an important issue, and that Plitnick had informed staff that he had a friend in Greene County who he could visit and "talk to," indicating "a level of support being available to him in the community" (id., ¶ 9). When called by CIU staff, the friend had no concern about Plitnick staying with him or his "continued safety in the community" (id.) Dr. Verma states that Plitnick had more than $850 in his possession, which indicated that he was a "relatively high functioning individual" who was not in acute financial distress or unable to meet his daily needs, and that he was able to leave the CDPC CIU in a cab (see id., ¶ 9). Dr. Verma averred that:
"Based on the totality of these factors, we made the determination that [Plitnick] was at a low risk of suicide imminently. The decision to discharge him was made. He was discharged with referrals to outpatient mental health services, and instructions to contact our facility in the case of a psychiatric emergency"
(id., ¶ 10). Dr. Verma further states the "I used my best professional judgment according to the standards of practice in this community in assessing the patient's risk for suicide" (id., ¶ 11) and that "[i]n interviewing [Plitnick], observing him in the [CIU] and having staff report their observations, and being assured that he was not returning to the street, I made the decision that his risk of suicide was low" (id.). Dr. Verma maintains that the determination to discharge Plitnick "was based on our professional judgment, community standards of practice, and the national best-practices in similar emergency rooms across the State of New York, and on our experience in working in this facility" (id.). The Crisis Evaluation form completed by Dr. Verma notes a score of 45 on the "Global Assessment of Functioning" and Plitnik's "Presumptive DSM-5 Diagnosis" to be "Alcohol Abuse" (see id., Exhibit E.1, at p. 3 of 4).
The affidavit of Dr. Zvi Klopott is supported by his curriculum vitae, which reflects that he is a Board-certified psychiatrist with over 45 years of experience as a psychiatrist (see id., Exhibit F.1). Dr. Klopott reviewed the claim, the verified bill of particulars, the deposition transcripts of claimant and three CDPC staff members, and Plitnick's medical records from AMC and CDPC as well as "a variety of medical records from other facilities" from prior to October 18, 2013 (see id., Exhibit F, at ¶ 3). Dr. Klopott maintains that CDPC did not deviate from the requisite standard of care in treating Plitnick. Specifically, Dr. Klopott averred that "CDPC actually defines the standard of care" because it is "the primary psychiatric evaluation center and hospital for the Capital District and nine Upstate New York counties" (id., Exhibit F, at ¶ 5]). As for the allegation in the bill of particulars that CDPC's agents failed to submit Plitnick to suicide screening tools, Dr. Klopott avers that those tools are not used in any area hospitals, and "[i]f they are used at all, they are used by hospital emergency room staff to determine if a referral needs to be made to the CDPC" (id.). Dr. Klopott states that "because of their high rates of false positive and false negative ratings and their low predictive values, the rating scales cannot be recommended for use in clinical practice to make treatment decisions," and that if CDPC did not use objective suicidality rating scales to evaluate Plitnick's risk, that omission is not a deviation from the appropriate standard of care (id.).
Dr. Klopott avers that once a referral has been made to CDPC, "the most important thing that is done by the [CIU] is the psychiatric evaluation to determine suicidality," and that Dr. Verma's psychiatric evaluation was "performed in a satisfactory fashion" (id., ¶¶ 6,7). According to Dr. Klopott, Dr. Verma actively interviewed Plitnick, made a differential diagnosis and "rated his GAF at 45 at the time of his evaluation," which "did not reflect the presence of suicidal behaviors" (id., ¶ 7). The expert's affidavit recites Dr. Verma's recollection that Plitnick was very intelligent, indicating that he was high functioning, and that during Dr. Verma's interview Plitnick had denied suicide attempts, suicidal ideation and a suicide plan and had denied that he was attempting to commit suicide prior to being brought to AMC, and that Dr. Verma had testified at his deposition that he evaluated Plitnick for anxiety. According to Dr. Klopott, CDPC staff made discharge plans for Plitnick, called and spoke with Plitnick's friend, and determined that Plitnick had outside support and financial means to support himself, and was therefore at a higher level of functioning than someone who was "homeless" (id.).
Dr. Klopott does not explain in his affidavit what a "GAF score" is (although it is likely the Global Assessment of Functioning score noted in Dr. Verma's notes), how it is determined, or why it was an important tool in evaluating Plitnick.
Dr. Klopott notes that the American Psychiatric Association (APA) Practice Guidelines for Assessing and Treating Patients with Suicide Behaviors was used by CDPC staff in 2013, and that the Guidelines note that "the amount of information that can be gathered in a psychiatric evaluation varies with the treatment setting and the ability or willingness of the patient and other sources to provide accurate information" (id., ¶ 8). According to Dr. Klopott, Plitnick was deceptive about his pedigree information and his family contacts in the region, he was evaluated according to the information he provided, he was observed by CDPC as "calm, not exhibiting anxious distress, intelligent and had a safe place to stay and funds to get to that place," and he was not exhibiting symptoms of alcohol withdrawal (see id.). Dr. Klopott avers that suicide is a statistical rarity, which, according to the APA Guidelines, "makes suicide impossible to predict based on risk factors, either alone or in combination" and that psychiatric evaluation is "time-specific" because it evaluates risk of suicide at the time of the evaluation and is not designed to assess risk several days later (id.,¶ 9). Finally, Dr. Klopott allegations of medical malpractice by not hospitalizing Plitnick "do not hold up to close scrutiny" because:
Mr. Plitnick was not voicing suicidal ideation, a suicide plan or a known history of prior suicide attempts. He seemingly had support in the community so that he was not homeless in the traditional sense. He was an intelligent individual with the assets to support himself - at least for the short term. The decision that his risk of suicide was low was based on the clinical assessment made by Dr. Verma after a full psychiatric evaluation. The profession cannot be asked to be guarantors of future behavior. The best we can do is to utilize our best professional judgment in the circumstances which are presented to us."
(id., ¶ 11). The affidavits of Dr. Verma and Dr. Klopott both emphasize that Plitnick was engaged in intentional deception by giving a false name and other incorrect information.
Defendant's brief in support of its motion does not argue that defendant's agents did not deviate from the accepted standards of care, instead relying upon the affidavits Dr. Verma and its expert, Dr. Klopott, both of whom aver that defendant did not deviate from the standard of care with respect to defendant's evaluation and treatment of Plitnick. Both psychiatrists reject the notion that objective tools for assessment of suicide risk are part of the standard of care because they are unreliable and because they are used by less-specialized facilities to determine the need for a referral or transfer to a specialized psychiatric facility such as CDPC. However, Dr. Verma's affidavit does not elucidate the elements of the applicable standard of care owed by CIU to Plitnick, other than his assertion that in performing his evaluation he "addressed all the relevant areas of a risk assessment according to the community standard of practice" and then reciting all that he did (see id., Exhibit E, ¶ 8). Dr. Klopott's affidavit states that "the staff at the Capital District Psychiatric Center did not deviate from the requisite standard of care for the patient they knew as David Alexander. In this area, the CDPC actually defines the standard of care" (id., Exhibit F, ¶ 5) and that "Dr. Verma's psychiatric evaluation was performed in a satisfactory fashion" (id., ¶ 7). Thus, defendant's claim to compliance with the standard of care is somewhat circular and self-serving: we define the standard of care, we did what we do, and therefore we complied with the standard of care. Such analysis is difficult to credit as warranting judgment as a matter of law.
The documents submitted by defendant in support of its motion, viewed in a light most favorable to claimant, reveal the following. Plitnick's physical condition and emotional presentation changed substantially from the time he arrived at AMC ED and placed into restraints. Once he was transferred to the CIU at CDPC, his condition remained relatively constant throughout his time in the CIU. After her triage evaluation of Plitnick in the early morning hours of October 18, 2013, Pietrafesa recommended that he be admitted for "acute inpatient psychiatric hospitalization for safety, stabilization and treatment" (id., Exhibit E.1 [Crisis Evaluation - History/Assessment, at 5]), and Dr. Verma averred that Plitnick showed no signs of distress during the 17 hours he spent at CDPC (see id., ¶ 5). Notwithstanding that a MSW's recommendation does not control the decision of the psychiatrist, nothing in defendant's submission suggests why Dr. Verma reached a different conclusion despite the fact that he did not appear to behaving any differently than he was at the time of his intake.
Within defendant's submission there are inconsistencies that give rise to doubt about whether defendant, in fact, sufficiently performed the professional evaluation that is a predicate to invocation of the professional judgment rule. Most glaringly, Dr. Verma's affidavit states that he evaluated Plitnick at 3:00 pm (see id., ¶ 7), but Plitnick's medical records demonstrate that he had been discharged from the CIU at 2:25 pm (see id., Exhibit E.1, p. 3). While Dr. Verma's report on his evaluation of Plitnick includes details about Plitnick's childhood that do not appear elsewhere in the medical records, neither that report nor Dr. Verma's affidavit give any indication of the length of time that he spent with Plitnick (compare Stephen v City of New York, 137 AD3d 1003, 1005 [2d Dept 2016]), and much of the information the report recites about Plitnick's behavior and representations clearly derive from other documents in his medical record. Further, there are inconsistencies in defendant's submission with regard to defendant's understanding of Plitnick's living situation, inasmuch as it indicates that he was homeless, that he could stay with a friend, and also that he lived with the friend
Moreover, although the affidavits submitted in support of defendant's motion appear to address the majority of the deviations from the standard of care that are set forth in claimant's amended verified bill of particulars, they fail to address three asserted deviations. First, that defendant's agents failed to examine or consider Plitnick' epidemiological factors (see Gugliotta Affirmation, Exhibit C [Amended Response to Defendant's Demand for Bill of Particulars, ¶¶ 3, 5 (a), 6 (a)]), that Dr. Verma did not document why he disagreed with Pietrafesa's conclusion that Plitnick was at increased risk of suicide and her recommendation that he be hospitalized (see id., ¶¶ 3, 5 [e], 6 [e]), and lastly, that defendant's agents departed from accepted practice in administering or prescribing medications to Plitnick (id., ¶¶ 3, 5 [k], 6 [k]). Inasmuch as the affidavits "fail[] to address each of the specific factual claims of negligence raised in [the] [claimant's] bill of particulars, [the affidavits are] insufficient to support a motion for summary judgment as a matter of law" (Larsen v Banwar, 70 AD3d, 1337, 1338 [4th Dept 2010] [emphasis added]; see also, Drago v King, 283 AD2d 603, 603-604 [2d Dept 2001]). In sum, the Court is of the view that defendant's motion papers fail to demonstrate its entitlement for judgment dismissing the claim as a matter of law.
Even if defendant has made a prima facie showing that the decision to discharge Plitnick was based upon an evaluation that complied with the standard of care, claimant's opposition to motion for summary judgment raises triable issues of material fact sufficient to defeat summary judgment. Claimant relies upon the expert affirmation of psychiatrist Glenn R. Kalash, D.O. who, based upon Plitnick's medical records from AMC ED and CDPC CIU, the deposition transcripts of Emily Pietrafesa, Clement Mart, and Dr. Verma, asserts his opinion that the care and treatment of Plitnick did not comply with the applicable standards of care (see Gugliotta Affirmation, Exhibit I). While Dr. Klopott's affidavit summarily states that area hospitals do not use various suicide risk scales and states that defendant's failure to use such scales does not constitute a deviation from the standard of care (see Matalavage Affidavit, Exhibit F, ¶ 5), Dr. Kalash affirms that the Columbia-Suicide Severity Rating Scale (C-SSRS) is, in fact, a nationally utilized assessment tool (see Gugliotta Affirmation, Exhibit I, ¶ 79), and Dr. Verma acknowledged in his deposition that the CIU generally uses that tool as part of an evaluation of patients' risk to themselves or others (see id., Exhibit H, at 55), but there is nothing in the record on defendant's motion for summary judgment that suggests that the C-SSRS was used by defendant to evaluate Plitnick's risk. Thus, issues of fact are raised with regard to whether the C-SSRS is an element of the standard of care, whether it is part of the CIU's protocol for patients such as Plitnick, and whether the failure to use it to assess Plitnick's risk of suicide was a breach of a duty of care. The existence of triable issues of fact is highlighted, and further demonstrated by, the reply affidavits of Drs. Verma and Klopott, in which they take issue with certain assertions in Dr. Kalash's affirmation about the quality of the assessment of Plitnick (see Matalavage Reply Affidavit, Exhibits A, B). Accordingly, defendant's motion for summary judgment would not be granted.
Turning to claimant's cross motion, claimant seeks permission to amend or supplement the bill of particulars under CPLR 3025 (b) and (c).
Although the cross motion is noticed as one to amend and/or supplement the amended bill of particulars, it is clearly a motion to amend the bill of particulars pursuant to CPLR 3042 (b), and not one to supplement the amended bill of particulars "with respect to claims of continuing special damages and disabilities" pursuant to CPLR 3043(b).
Further, a motion to amend must be accompanied by the proposed amended pleading "clearly showing the changes or additions to be made to the pleading" (CPLR 3025 [c] [emphasis added]). Claimant's failure to include a proposed second amended bill of particulars that clearly shows the proposed amendments in initial support of its cross motion (see Gugliotta Affirmation, Exhibit J) will be excused. In reply to defendant's opposition to the cross motion, claimant clearly identifies the proposed changes to paragraph 3 of claimant's amended verified bill of particulars (see Gugliotta Reply Affirmation, at p. 4-5), and defendant has opposed the cross motion on the merits, indicating a lack of prejudice flowing from the late specification of the proposed amendments. Thus, in the absence of prejudice to defendant and in the interests of judicial economy, the Court will consider claimant's cross motion.
Pursuant to CPLR 3042 (b), a party may amend his or her bill of particulars once, as a matter of right, and claimant has already done so in this action (see Gugliotta Affirmation, Exhibit C [Amended Response to Defendant's Demand for Bill of Particulars]). If, as here, the note of issue has been filed "court leave will be required for any change in the bill [of particulars]," with "[t]he standard used by the courts in considering whether to allow amendment is generally that applicable to the pleading itself under 3025 (b)" (Siegel, New York Practice, § 240 [4th ed. 2005]). CPLR 3025 (b) provides in pertinent part that "[a] party may amend his . . . pleading, or supplement it by setting forth additional or subsequent transactions or occurrences . . .". Leave to amend a bill of particulars should "be freely given in the absence of a showing of prejudice" (Thompson v Connor, 178 AD2d 752, 753 [3d Dept 1991], lv dismissed 80 NY2d 826 [1992]).
Here, claimant requests to add the following acts of negligence to paragraph 3 of the amended bill of particulars: (1) failure to contact Plitnick's collateral; (2) failure to properly medicate; (3) failure to address alcohol abuse; (4) failure to hold Plitnick in psychiatric care against his will in accordance with Mental Hygiene Law § 9.39; (5) failure to determine the existence of Plitnick's friend in East Durham and to document the friend's name, address and phone number; (6) failure to determine the existence of a relationship between Plitnick and a psychiatric professional; (7) failure to determine if Plitnick had a prescription for antidepressants and failure to prescribe antidepressants; (8) failure to release Plitnick back into the community; (9) failure to release Plitnick to a family member or collateral; (10) failure to establish any follow-up appointments; (10) failure to address alcohol abuse or addiction; (11) failure to consider Pietrafesa's notes documenting current suicidal ideation; (12) failure to properly identify Plitnick; and (13) the failure to administer the C-SSRS, the APA suicide assessment standards, and the CDPC general Standard of Care (see Gugliotta Affirmation, Exhibit J [Proposed Second Amended Verified Bill of Particulars, at ¶ 3; see also Gugliotta Reply Affirmation, at p. 4-5). Claimant argues that the deposition testimony of Dr. Verma, RN Mart and Pietrafesa, as well as the affidavit of Dr. Kalash, claimant's expert, that are submitted in opposition to defendant's motion for summary judgment "created a vast amount of new information" necessitating the amendment to the bill of particulars (Gugliotta Affirmation, VI [E], at p.25). According to claimant, "[t]his new information includes, but is not limited to, the applicability of Mental Hygiene Law § 9.39 to [Plitnick's] treatment, the [APA] suicide assessment guidelines, the Columbia Suicide Assessment Scale, Columbia C-SSRS, and the Practice Guidelines for the Assessment and Treatment of Patients with Suicidal Behaviors by the [APA]," and "CDPC's standard practices and how the staff/doctors/employees of CDPC departed from those standards are now documented via [EBT] testimony" (id., at p.25-26). Claimant argues that defendant will suffer no prejudice if a second amendment is permitted, and the motion was brought at the earliest possible time inasmuch as Dr. Kalash, claimant's expert, did not have an opportunity to review the records and deposition testimony until after the bill of particulars was initially amended and the note of issue was filed.
In opposition, defendant argues that the proposed amendment would change the theory of the case after the note of issue has been filed and "is exactly the type of amendment or supplementation that is prohibited by CPLR 3043 (b)," and that changes in the theory of the case at this late juncture would be prejudicial to defendant (see Matalavage Reply Affidavit, ¶ 7). Claimant counters that the proposed amendments are "merely more complete statements of the prior allegation [sic] within the Amended Bill of Particulars" (Gugliotta Reply Affirmation, at p.5-6) that they offer more specificity and amplification to the allegations pleaded in the claim and amended bill of particulars, and that there is no surprise or prejudice to defendant.
There is no question that these proposed amendments come late in these proceedings, having been proposed over eleven months after the depositions of the key witnesses were conducted and six months after the filing of the note of issue. However, " '[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side' " (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983], quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:5, p 477). Some of the proposed amendments seek merely to elucidate upon allegations already contained within the claim and the initial bill of particulars, although some of the proposed amendments include allegations that appear to assert new theories of negligence, i.e. the allegations that defendant's agents failed to hold Plitnick against his will in accordance with MHL § 9.39, failed to determine if Plitnick had an ongoing relationship with a psychiatric professional, failed to release Plitnick to family members, failed to establish follow-up appointments and failed to address Plitnick's alcohol abuse and addiction. However, these proposed new theories flow naturally from the allegations in the claim and the amended bill of particulars and thus, it cannot be said that they present unfair surprise to defendant. Defendant's argument that it will be prejudiced is unsupported by any suggestion of how it would suffer prejudice, much less substantial prejudice, and the Court can discern none. Accordingly, the Court will exercise its discretion and grant claimant's motion to serve a second amended bill of particulars. To the extent that defendant may find itself in need of further discovery or additional time to marshal its defense as a result of the new amendments to the bill of particulars, the Court will entertain any application or request seeking such relief.
The proposed amendment appears to contain two typographical errors - that defendant's agents failed to "release [Plitnick] back into the community" and that defendant's agents failed to address Plitnick's alcohol abuse and "addition" (Gugliotta Affirmation, Exhibit J [Proposed Second Amended Verified Bill of Particulars, ¶ 3]). It is uncontested that Plitnick was discharged back into the community, and the context of this claim allows that claimant intended to refer to Plitnick's "addiction."
The cases cited by defendant do not compel a different result. In Markarian v Hundert (262 AD2d 369 [2d Dept 1999]), the Appellate Division affirmed the denial of a motion to amend a bill of particulars where the motion was made approximately 11 years after the commencement of the action and several years after the action was certified ready for trial, and where the proposed amendments asserted new theories that could not be not readily gleaned from the original bill of particulars and would cause defendant to completely reconfigure their defense strategy. This cross motion is clearly distinguishable from Markarian because it is far less untimely, having been made less than a year after the filing of the note of issue, and the new theories are "readily discernible from the contents of the original bill of particulars" and would not require defendant "to reorient their defense strategy" (id., 262 AD2d at 369-370). In Hedlund v County of Tompkins (235 AD2d 980 [3d Dept 1997], lv dismissed 89 NY2d 1086 [1997], lv denied 90 NY2d 808 [1997]), the Appellate Division upheld the denial of a motion to amend the bill of particulars to assert violations of statutes asserted in a notice of claim where a note of issue had been filed and case scheduled for trial but was aborted because a jury could not be picked, and where there was prejudice to defendant because no discovery was conducted and each of the statutory violations had different statutes of limitations and required different proof. Hedlund is again clearly distinguishable because this claim has not been set down for trial and there is no prejudice to defendant by granting this motion, as discussed above. Lastly, Sagar v Khun Y. Son (208 AD2d 1092 [3d Dept 1994]) and Jurado v Kalache (93 AD3d 759 [2d Dept 2012]) are both inapplicable because they sought to add new theories of liability on motions to supplement bills of particulars under CPLR 3043 (b), and not an application to amend pursuant to CPLR 3025 (b).
Accordingly, it is
ORDERED, that defendant's motion number M-89255 is DENIED, and it is further
ORDERED, the claimant's cross motion number CM-89852 is GRANTED and claimant shall file and serve the verified second amended bill of particulars within thirty (30) days of the date of filing of this Decision and Order.
March 14, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 125298, filed November 25, 2014; (2) Verified Answer, filed December 17, 2014; (3) Notice of Motion for Summary Judgment (M-89255), dated September 21, 2016; (4) Affidavit of Joan Matalavage, AAG, in Support of Motion for Summary Judgment, sworn to September 21, 2016, with Exhibits A-F; (5) Defendant's Memorandum of Law in Support of Motion for Summary Judgment, dated September 21, 2016; (6) Amended Notice of Cross-Motion to Serve a Second Amended and/or Supplemental Bill of Particulars (CM-89852), dated January 19, 2017; (7) Affirmation of John C. Gugliotta, Esq., in Opposition to Defendant's Motion for Summary Judgment and in Support of Claimant's Motion to Serve a Second Amended an Supplemental Bill of Particulars, dated January 10, 2017, with Exhibits A-J; (8) Reply Affidavit and Affidavit in Opposition to Cross Motion of Joan Matalavage, AAG, sworn to March 24, 2017, with Exhibits A-B; (9) Reply Affirmation of John C. Gugliotta, Esq., in Further Support of Cross-Motion and in Sur-Reply in Further Opposition to Summary Judgment, dated April 12, 2017; (10) Correspondence of Joan Matalavage, AAG, dated June 15, 2017, with Attachment; (11) Correspondence of the Honorable W. Brooks DeBow, Judge of the Court of Claims, dated June 22, 2017; (12) Correspondence of John C. Gugliotta, Esq., dated July 5, 2017; (13) Correspondence of Joan Matalavage, AAG, dated July 6, 2017; (14) Correspondence of Joan Matalavage, AAG, dated February 1, 2018.