| Dumas v Adirondack Med. Ctr. |
| 2011 NY Slip Op 07769 [89 AD3d 1184] |
| November 3, 2011 |
| Appellate Division, Third Department |
| David Dumas, Individually and as Administrator of the Estate of KirstenLorraine Dumas, Deceased, and as Parent and Guardian of Elizabeth Dumas et al., Infants, Appellant,v Adirondack Medical Center et al., Respondents. |
—[*1] Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (Karen A. Butler of counsel), forAdirondack Medical Center and another, respondents. Maguire, Cardona & Ryan, P.C., Albany (Kyran D. Nigro of counsel), for Edward Frost,respondent.
Kavanagh, J. Appeals from two judgments of the Supreme Court (Williams, J.), entered May 25,2010 and June 22, 2010 in Saratoga County, upon a dismissal of the complaint at the close of plaintiff'scase.
On February 4, 2005, decedent was admitted to defendant Adirondack Medical Center [*2]after she had attempted to commit suicide. While at the hospital,decedent made two further attempts to take her life and defendant Edward Frost, her attendingphysician at the hospital, determined that her condition required that she be immediately transferred tothe mental health unit of Glens Falls Hospital. Frost signed orders authorizing the transfer, but did notdirect in those orders that decedent be placed in restraints while being transported. A nurse at thehospital, defendant Richard Land, met the ambulance that would transport decedent and advised theambulance attendants of decedent's attempts at suicide and her suicidal ideation. After decedent wasplaced in the ambulance, she was secured with standard safety belts across her waist and ankles, andcovered with a blanket. An attendant was assigned to ride in the back of the ambulance and watch overher during the transport. Several minutes into the transport, decedent was able to unlock her safetybelts, jumped up and threw herself out of the rear door of the vehicle, sustaining fatal injuries.
Plaintiff, decedent's husband and the administrator of her estate, commenced this action against theambulance attendants and ambulance service, the hospital, Frost and Land, and later entered into astipulation of discontinuance with the ambulance service and attendants. At trial, the remainingdefendants moved for a directed verdict at the close of plaintiff's proof (see CPLR 4401). Themotion was granted and this appeal ensued.
"A directed verdict pursuant to CPLR 4401 is appropriate when, viewing the evidence in a lightmost favorable to the nonmoving party and affording such party the benefit of every inference, there isno rational process by which a jury could find in favor of the nonmovant" (Hytko v Hennessey, 62 AD3d 1081,1083 [2009] [citations omitted]; see Carusov Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502, 1054 [2011]). Plaintiff's claimagainst Frost was premised on a finding that proper medical care required that when ordering decedenttransferred to the psychiatric facility, he should have directed that she be placed in restraints whiletraveling in the ambulance. Supreme Court, in directing a verdict in his favor, found that Frost's decisionnot to order decedent restrained constituted a choice between "two or more medically acceptablecourses of action" for which no liability could be imposed (PJI 2:150; see Centeno v City of NewYork, 40 NY2d 932, 932 [1976], affg 48 AD2d 812 [1975]; Betty v City of New York, 65 AD3d507, 509 [2009]; Durney v Terk,42 AD3d 335, 336 [2007], lv denied 9 NY3d 813 [2007]; Paradies v BenedictineHosp., 77 AD2d 757, 759 [1980]).
"[A] doctor is not liable in negligence merely because a treatment, which the doctor as a matter ofprofessional judgment elected to pursue, proves ineffective" (Nestorowich v Ricotta, 97 NY2d393, 398 [2002]; see Schrempf v State of New York, 66 NY2d 289, 295 [1985]), andliability will not be imposed for an error in judgment if "it is a judgment that a reasonably prudent doctorcould have made under the circumstances" (PJI 2:150; see Centeno v City of New York, 40NY2d at 932; Betty v City of New York, 65 AD3d at 509; Durney v Terk, 42 AD3dat 336; Paradies v Benedictine Hosp., 77 AD2d at 759). However, such a decision if made"without proper medical foundation, that is, one which is not the product of a careful examination, is notto be legally insulated as a professional medical judgment" (Fotinas v Westchester County Med.Ctr., 300 AD2d 437, 439 [2002]).[*3]
Here, prior to ordering decedent transferred, Frost discussedher condition and all applicable treatment options with the hospital's psychiatric staff. He knew thatdecedent, when admitted to the hospital, had been diagnosed with tachycardia and had to be intubatedto assist in her breathing, conditions that plaintiff's expert acknowledged could be aggravated ifdecedent were placed in restraints. Because of decedent's attempt to commit suicide, Frost orderedthat while she was in the hospital, she be sedated on an as-needed basis and restraints be employed asa last resort. In his deposition, Frost stated that he decided not to order decedent restrained whileriding in the ambulance because, during her last 2½ hours at the hospital, decedent was notrestrained when someone was seated with her and she "had been calm and had not made any suicidalgestures." Moreover, Frost rightfully assumed that the ambulance attendants charged with decedent'stransport would closely monitor her, especially given the warnings that they had received from Landregarding her recent suicide attempts and existing suicidal ideation.[FN*] Therefore, we agree with Supreme Court that Frost's decision not to impose restraints duringdecedent's transfer "was a matter of professional judgment for which [Frost] cannot be held" liable(Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682, 684 [1981]), and the verdict was properlydirected in his favor.
As for Land, plaintiff argues that his failure to question Frost why restraints were not being orderedwhen decedent was placed in the ambulance constitutes professional negligence. Land had noinformation regarding decedent that Frost did not have and, moreover, plaintiff's expert acknowledgedthat Land, as a nurse, had no authority to direct that restraints be used. In addition, there is no recordevidence indicating that Frost would have ordered restraints had Land raised the issue. As a result,plaintiff failed to make a prima facie case of negligence against Land, and the hospital vicariously, andSupreme Court's order directing a verdict in their favor should in all respects be affirmed.
Rose, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgments are affirmed,with costs.
Footnote *: Land testified at his deposition thathe specifically warned the ambulance attendants prior to the transfer that they should be concernedabout decedent and that "this girl means it. She is the one who is going to jump out of your ambulance."