| Ozugowski v City of New York |
| 2011 NY Slip Op 09293 [90 AD3d 875] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Alicja Ozugowski, Appellant, v City of New York,Defendant, and New York City Health and Hospitals Corporation,Respondent. |
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Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and ScottShorr of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc.,the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Flug, J.), datedMarch 19, 2010, which granted the motion of the defendant New York City Health and HospitalsCorporation for summary judgment dismissing the complaint insofar as asserted against it, and(2) a judgment of the same court entered July 8, 2010, which, upon the order, is in favor of thedefendant New York City Heath and Hospitals Corporation and against her dismissing thecomplaint insofar as asserted against that defendant.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeal from the order are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court properly granted the motion of the defendant New York City Health andHospitals Corporation (hereinafter the defendant) for summary judgment dismissing thecomplaint insofar as asserted against it. "Whether to release an institutionalized patient involvesa risk of error. A psychiatrist 'is not required to achieve success in every case.' Should apsychiatrist fail to predict that a patient will harm himself or herself if released, the psychiatristcannot be held liable for a mere error in professional judgment" (Seibert v Fink, 280AD2d 661, 661 [2001] [citations omitted], quoting Schrempf v State of New York, 66NY2d 289, 295 [1985]; see Betty v Cityof New York, 65 AD3d 507, 509 [2009]; Weinreb v Rice, 266 AD2d 454, 455[1999]). In order for a psychiatrist to be held liable [*2]formalpractice based upon a decision made in connection with a patient's treatment or a decision todischarge a patient from a hospital, it must be shown that the treatment decisions represented"something less than a professional medical determination" (Fotinas v Westchester CountyMed. Ctr., 300 AD2d 437, 439 [2002] [internal quotation marks omitted]), or that thepsychiatrist's decisions were "not the product of a careful examination" (Bell v New YorkCity Health & Hosps. Corp., 90 AD2d 270, 280-281 [1982]; see Thomas v Reddy, 86 AD3d602 [2011]; Betty v City of New York, 65 AD3d at 509; Fotinas v WestchesterCounty Med. Ctr., 300 AD2d at 439; Seibert v Fink, 280 AD2d at 662; Weinrebv Rice, 266 AD2d at 455).
Here, the evidence submitted by the defendant, including the affidavit of an expertpsychiatrist, established, prima facie, that the defendant did not depart from the applicablestandard of care in connection with its treatment of the plaintiff's decedent, or in connection withthe decision to release the decedent from the hospital (see Betty v City of New York, 65AD3d at 509; Dunn v Khan, 62AD3d 828, 829 [2009]; Fotinas v Westchester County Med. Ctr., 300 AD2d at 439).
In opposition to the defendant's prima facie showing, the plaintiff submitted an affidavit froman expert physician. Initially, although the plaintiff failed to serve a notice of disclosure of herexpert physician pursuant to CPLR 3101 (d), the defendant failed to show that the SupremeCourt improvidently exercised its discretion in considering that expert's affidavit, under thecircumstances herein (see Saldivar v I.J.White Corp., 46 AD3d 660, 661 [2007]). However, the plaintiff's expert physician, aninternist and cardiologist licensed to practice medicine in Illinois, failed to establish a properfoundation for his opinion as to the psychiatric treatment of the plaintiff's decedent. "While it istrue that a medical expert need not be a specialist in a particular field in order to testify regardingaccepted practices in that field . . . the witness nonetheless should be possessed ofthe requisite skill, training, education, knowledge or experience from which it can be assumedthat the opinion rendered is reliable" (Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895[2004] [citations and internal quotation marks omitted]). "Thus, where a physician opines outsidehis or her area of specialization, a foundation must be laid tending to support the reliability of theopinion rendered" (Mustello v Berg,44 AD3d 1018, 1019 [2007]; seeBehar v Coren, 21 AD3d 1045, 1046-1047 [2005]). Here, the plaintiff's expert physicianfailed to establish the requisite foundation for the opinion offered in the area of psychiatry(see Mustello v Berg, 44 AD3d at 1019; Behar v Coren, 21 AD3d at 1046).Moreover, the affidavit of the plaintiff's expert physician failed to raise a triable issue of fact asto whether the defendant's staff failed to make a careful evaluation of the decedent, as per theapplicable standard of care, in connection with their treatment of the decedent and the dischargeof the decedent (see Betty v City of New York, 65 AD3d at 509; Dunn v Khan,62 AD3d at 829-830).
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint insofar as asserted against it. Skelos, J.P., Belen, Lott andCohen, JJ., concur.