Opinion
No. 11945/2002.
2010-03-19
Alicja OZUGOWSKI, Individually and as Administratrix of the Estate of Adam Ozugowski, Deceased, Plaintiff, v. The CITY OF NEW YORK and New York City Health and Hospitals Corporation, Defendant.
PHYLLIS ORLIKOFF FLUG, J.
Defendant, NYCHHC, moves for summary judgment dismissing all causes of action against them. On June 18, 2004, this Court granted the City of New York's motion for summary judgment.
This is an action for negligence brought by Alicja Ozugowski individually and as administratrix of the Estate of Adam Ozugowski, deceased, arising from his treatment at Queens Hospital Center from March 25, to March 26, 2001. Plaintiff alleges that Defendant and its staff was negligent, careless, and deviated from good and accepted medical and hospital practice in its treatment and care of decedent. Mr. Ozugowski committed suicide on April 5, 2001.
On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ...” ( Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851,852).
“To establish a prima facie case of liability in a medical malpractice action, the plaintiff must prove that the defendant physician departed from good and accepted standards of medical practice and that the departure was the proximate cause of the injury or damage” (Biggs v. Mary Immaculate Hosp., 303 A.D.2d 702, 703–704; see, Elias v. Bash, 54 AD3d 354, 355;Salmeri v. Beth Israel Med. Ctr. Kings Highway Div., 39 AD3d 841;Prete v. Rafla–Demetrious, 224 A.D.2d 674, 675). To meet this burden, a plaintiff ordinarily presents expert testimony showing that the defendant's conduct deviated from the requisite standard of care (see, Salmeri, supra; Texter v. Middletown Dialysis Ctr., Inc., 22 AD3d 831). “In order to establish a prima facie case in a medical malpractice action, where causation is almost always a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant” (Borawski v. Huang, 34 AD3d 409, 410;Flaherty v. Fromberg, 46 AD3d 743, 745).” (Johnson v. Jacobowitz, 65 AD3d 610).
In support of the motion, movant presents the testimony of Francine Keogh, a psychiatric nurse who did the original assessment in the emergency room, psychiatry resident Michael Mansheraov, MD, who assessed Mr. Ozugowski later that night, and attending psychiatrist Ione DeJesus, MD, who evaluated him the next day. They also present the expert testimony of F. Carl Mueller, MD, certified in psychiatry and neurology.
On March 25, 2001, the deceased was taken to the Queens Hospital Center Emergency Room. The chart indicated he was 52 years old, intoxicated, and had a laceration on his wrist. His blood alcohol at 7 p.m. was 3.19. He complained of being depressed, after being served with divorce papers, and was afraid of losing his children. He was transferred to the psychiatric department, and was evaluated by Ms. Keogh, a psychiatric nurse. She testified that he was able to enter into a “contract for safety”. She stated that he was logical, coherent, cognitive, oriented, and able to process information. The nursing diagnosis was “altered conduct/impulse process [an immediate response to a stressor] secondary to increased anxiety, alcohol use, manifested by cutting wrist”. He had no psychiatric or alcohol history. Dr. Manasherov, who next evaluated Mr. Ozugowski, attributed his mood disorder to alcohol intoxication, and kept him over night until the day shift arrived for full evaluation.
Ione DeJesus, MD, evaluated decedent at noon the next day, after reviewing the reports generated. She testified from her personal notes which stated “cut his wrist while drunk .... denied having any suicidal thoughts”, “No acute psychotic signs and symptoms. No paranoia.” “Wife refused to cooperate (ie, come to hospital to get patient out ... )”, and “he never touched his wife. Advised to go for counseling. Given list of clinics.” Dr. DeJesus did not find aggressive behavior and stated Mr. Ozugowski did not meet the criteria for involuntary psychiatric admission. He was discharged at 1:15 pm, on March 26, 2001, with the diagnosis of “adjustment disorder”, difficulty adjusting to a specific stressor, the pending divorce, and referred him to outpatient therapy. He committed suicide eight days after the discharge.
F. Carl Mueller, MD, a Board Certified Psychiatrist, whose affidavit is submitted in support of defendant's motion, states “it is my opinion that the defendant's physicians appropriately determined, in their professional judgment, that there were no signs that this patient was an acute danger to himself or others on March 26, 2001.” He goes on to state that Mr. Ozugowski's suicide eight days later could not have been foreseen, and that the treatment was not the proximate cause of his death. Dr. Mueller also notes that decedent's wife serving divorce papers was a significant factor, and that Mr. Ozugowski was not allowed in his own home. Lastly he states, that “it is my opinion to a reasonable degree of medical certainty that the alleged injuries and death of Plaintiff's decedent were not caused by the care and treatment rendered by defendant, or any act or omission by defendant.”
“A medical provider may not be held liable for a mere error in professional judgment. For liability to ensue, plaintiff must show that the provider's treatment decision was something less than a professional medical determination' (see, Ibguy v. State of New York, 261 A.D.2d 510, lv. denied 93 N.Y.2d 816, quoting Darren v. Safier, 207 A.D.2d 473, 474).” (Durney v. Terk, 42 AD3d 335). The mere fact that plaintiff's expert may have chosen a different course of treatment, without more, is insufficient to sustain a prima facie case of medial malpractice” ( Durney v. Terk, supra; also see, Fotinas v. Westchester County Medical Center, 300 A.D.2d 437).
“When a psychiatrist chooses a course of treatment, within a range of medically accepted choices, for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability” (O'Sullivan v. Presbyterian Hosp. in the City of N.Y. at Columbia Presbyt. Med. Ctr., 217 A.D.2d 98, 100;Darren v. Safier, supra). In other words, plaintiff must establish that the defendant failed to follow accepted standards of medical practice, and those departures were the proximate cause of death.
Once the proponent has made a prima facie showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial ( Alverez v. Prospect Hospital, 68 N.Y.2d 320,324).
Plaintiff alleges that decedent was still inebriated when nurse Keogh entered with him into a “contract for safety”, however no probative evidence is offered in support of this contention. Plaintiff's argument regarding an early discharge, without offering any evidence to establish that the approximately four hour “early” discharge was the proximate cause of his suicide is without merit. Subsequent to the resident's assessment, Mr. Ozugowski was evaluated by the psychiatric doctor, Dr. DeJesus, who determined he was not a danger to himself or others. Dr. DeJesus spoke to the Plaintiff on the phone. She had recently filed for divorce, and would not come to the hospital and Dr. DeJesus determined her to be uncooperative.
Counsel opines this alone should have kept deceased in the hospital. In addition, Counsel contends that Dr. DeJesus's note that decedent was still depressed an hour before his discharge, should have mandated a hold, but fails to establish any connection between this and the eventual suicide (see, Durney v. Terk, supra).
In opposition to the motion, Plaintiff, submits the affidavit by a doctor created solely for the purpose of this motion, who specialized in internal medicine and cardiology, in Illinois.
Plaintiff's expert asserts that the decedent's failure to have an “appreciation” of the contract of safety fails to meet the standard of care. However, the expert fails to enunciate the standard of care. This is insufficient to establish a material question of fact (see, Tranchina v. Davison, 253 A.D.2d 872;Marano v. Mercy Hospital, 241 A.D.2d 48; see also, Henson v. Winthrop Univ. Hosp., 249 A.D.2d 510; also see, Mattis v. Keen, 54 AD3d 610). His further “opinion” with regard to the number of hours required for observation, leading to his conclusion that the decedent cannot have been aware of the means available to him to get assistance, is likewise unsupported and insufficient. Both are examples of what the Courts have described as “errors of professional judgment” and as such does not raise a question of fact.
Finally, Counsel for plaintiff seeks to correct the redacted doctor's affidavit attached to the motion, with a letter providing an un-redacted copy. Although counsel indicates he sent the defendant a copy, it is inadmissible as opposing counsel did not have a fair opportunity to respond to these contentions, and they were not properly before the Court (see, Johnston v. Continental Broker–Dealer Corp, 287 A.D.2d 546).
Accordingly, the motion by NYCHHC is granted and the action is dismissed.