| Schilling v Ellis Hosp. |
| 2010 NY Slip Op 06280 [75 AD3d 1044] |
| July 29, 2010 |
| Appellate Division, Third Department |
| Michell Schilling, Individually and as Parent and Guardian ofJordan Howard, an Infant, Respondent, v Ellis Hospital et al.,Appellants. |
—[*1] The DeLorenzo Law Firm, L.L.P., Schenectady (Thomas E. DeLorenzo of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Kramer, J.), entered January 29,2010 in Schenectady County, which denied defendants' motion for summary judgmentdismissing the complaint.
In March 2006, plaintiff's son, Jordan Howard (born 1991), was admitted to the psychiatricunit of defendant Ellis Hospital, located in the City of Schenectady, Schenectady County, due tomanic behavior associated with his bipolar mania. During his eight-day stay at Ellis, Howardwas treated by defendant Pankaj J. Mehta, a psychiatrist, who, among other things, increasedHoward's dosage of Risperdal, a psychotropic drug. Howard's treating psychiatrist, PradeenMarballi, had previously prescribed Risperdal for Howard, and Howard had been taking it since2004 in dosages varying from one to six milligrams. At the time he was admitted to Ellis,Howard was taking two milligrams per day, which Mehta gradually increased over a period offour days to eight milligrams per day. After Howard was released, Marballi maintained theeight-milligram dosage until late June 2006, at which time he ceased prescribing Risperdal afterdiagnosing Howard with gynecomastia, or enlargement of the breasts, which Marballi concludedwould have to be treated with plastic surgery.[*2]
Plaintiff thereafter commenced this action against Ellisand Mehta alleging malpractice in connection with the increased dosage of Risperdal prescribedduring Howard's stay at Ellis, which plaintiff claims caused Howard's gynecomastia. Followingdiscovery, defendants moved for summary judgment dismissing the complaint. Plaintiff opposedand, after oral arguments on the motion, Supreme Court denied the motion for summaryjudgment. Defendants appeal.
Plaintiff's contentions that defendants failed to properly inform her that gynecomastia was apossible side effect of Risperdal before administering a higher dosage and that the increasecaused Howard to develop that condition, including her arguments that are alleged in terms ofmedical malpractice, sound in lack of informed consent. To establish that claim, plaintiff mustprove that (1) defendants failed to disclose alternatives and reasonably foreseeable risks andbenefits to the treatment in question, such as a reasonable medical practitioner would havedisclosed under the circumstances; (2) a reasonably prudent patient in Howard's position wouldnot undergo the treatment if fully informed; and (3) the lack of informed consent is a proximatecause of the injury (see Public Health Law § 2805-d [1], [3]; Cole v Tischler, 68 AD3d 1595,1596 [2009]; Foote v Rajadhyax, 268 AD2d 745, 745 [2000]).
In support of their motion for summary judgment dismissing the complaint, defendantssubmitted Mehta's affidavit where, as relevant to the first element of the test, he opined with areasonable degree of medical certainty that, given the low risk of gynecomastia and the fact thatHoward had been taking Risperdal—apparently without serious side effects—formany months before being admitted to Ellis, it was not a deviation from the standard of care notto warn Howard about that rare side effect under the circumstances of his stay at Ellis.Defendants also submitted plaintiff's deposition testimony wherein she stated that she had neverseen gynecomastia listed as a possible side effect in any of the literature she reviewed onRisperdal, nor did Marballi ever mention it as a potential side effect.
Regarding the second element, Mehta opined that, given the benefits of Risperdal tosomeone who has had a manic episode significant enough to require hospitalization, a reasonablyprudent patient in those circumstances would agree to take that medication despite beinginformed of the low risk of gynecomastia, which is a treatable, non-life-threatening condition.Finally, regarding causation, Mehta opined that given the short duration of time that Howardreceived an elevated dose of Risperdal at Ellis and considering that Marballi then continued theeight milligram dosage for at least seven weeks thereafter, the Risperdal that Howard received atEllis could not be shown to have caused his gynecomastia. These submissions satisfieddefendants' burden of showing entitlement to judgment as a matter of law.
In opposition, plaintiff demonstrated a factual issue on the first element of the test throughthe affidavit of a medical expert who opined that, given the information provided in themanufacturer's insert stating that dosages of more than six milligrams had not been found to bemore effective than lower doses, and the fact that the safety and effectiveness of Risperdal hadnot been established at all in children, defendants should have warned plaintiff of all possibleside effects. Next, plaintiff raised a fact question on the second element by asserting in heraffidavit that if she had been fully informed of the side effects, she would not have consented toHoward receiving Risperdal (see Santilli v CHP, Inc., 274 AD2d 905, 907-908 [2000]).And finally, plaintiff's expert's interpretation of Marballi's progress notes, which unequivocallystate his conclusion that Howard "developed gynecomastia because of the high does ofRisperdal," raised a fact issue on causation. Accordingly, we cannot say that Supreme Courterred in denying defendants' motion for summary judgment on plaintiff's lack of informedconsent claim.[*3]
Peters, Spain, McCarthy and Egan Jr., JJ., concur.Ordered that the order is affirmed, with costs.