| Ballek v Aldana-Bernier |
| 2012 NY Slip Op 07946 [100 AD3d 811] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Donna Ballek, Respondent, v Lilian Aldana-Bernier et al.,Appellants, et al., Defendant. |
—[*1] Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (Lynn Hajek of counsel), for appellants Ernst G. Severe and Jamaica Hospital Medical Center. The Jacob D. Fuchsberg Law Firm, LLP (Andrew S. Buzin, Alan Fuchsberg, and Pollack,Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac], of counsel), forrespondent.
Motion by the appellant Lilian Aldana-Bernier for leave to reargue stated portions of anappeal from an order of the Supreme Court, Queens County, dated March 31, 2011, which wasdetermined by a decision and order of this Court dated April 17, 2012 (94 AD3d 923 [2012]), or,in the alternative, for leave to appeal to the Court of Appeals from the decision and order of thisCourt. Separate motion by the appellant Jamaica Hospital Medical Center for leave to rearguestated portions of the appeal.
Upon the papers filed in support of the motions, and the papers filed in opposition thereto, itis
Ordered that the motion of the appellant Lilian Aldana-Bernier is denied; and it is further,
Ordered that the motion of the appellant Jamaica Hospital Medical Center is granted and,upon reargument, the decision and order of this Court dated April 17, 2012, is recalled andvacated, and the following decision and order is substituted therefor:
In an action, inter alia, to recover damages for medical malpractice, etc., the defendant LilianAldana-Bernier appeals, and the defendants Ernst G. Severe and Jamaica Hospital MedicalCenter separately appeal, from an order of the Supreme Court, Queens County (O'Donoghue, J.),dated March 31, 2011, which denied their separate motions for summary judgment dismissingthe complaint insofar as asserted against each of them.
Ordered that the order is modified, on the law, by deleting the provision thereof denying themotion of the defendants Ernst G. Severe and Jamaica Hospital Medical Center for summaryjudgment dismissing the complaint insofar as asserted against them, and [*2]substituting therefor a provision granting the motion except withrespect to those causes of action which allege that the defendant Jamaica Hospital MedicalCenter is vicariously liable for the alleged medical malpractice of the defendant LilianAldana-Bernier; as so modified, the order is affirmed, with one bill of costs to the plaintiffpayable by the defendant Lilian Aldana-Bernier, and one bill of costs to the defendants Ernst G.Severe and Jamaica Hospital Medical Center payable by the plaintiff.
On September 14, 2006, Frank Ballek was taken by ambulance to the emergency room ofJamaica Hospital Medical Center (hereinafter JHMC). A psychiatric consultation was orderedand, as a result, physician Lilian Aldana-Bernier evaluated Frank. That night, an attendingphysician, Ernst G. Severe, discharged Frank. Frank killed himself on or before October 7, 2006.
Frank's wife, Donna Ballek, individually and as administrator of Frank's estate (hereinafterthe plaintiff), commenced this action, inter alia, to recover damages for medical malpracticeagainst, among others, Aldana-Bernier, Severe, and JHMC. Subsequently, Aldana-Berniermoved for summary judgment dismissing the complaint insofar as asserted against her, andSevere and JHMC moved for summary judgment dismissing the complaint insofar as assertedagainst them. The Supreme Court denied the separate motions.
"The requisite elements of proof in a medical malpractice action are a deviation or departurefrom accepted community standards of practice, and evidence that such deviation or departurewas a proximate cause of injury or damage" (Castro v New York City Health & Hosps. Corp., 74 AD3d 1005,1006 [2010]; see Deutsch vChaglassian, 71 AD3d 718, 719 [2010]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2008])."On a motion for summary judgment, a defendant physician has the burden of establishing theabsence of any deviation or departure, or that the patient was not injured thereby" (Castro vNew York City Health & Hosps. Corp., 74 AD3d at 1006; see Deutsch vChaglassian, 71 AD3d at 719; Rebozo v Wilen, 41 AD3d 457, 458 [2007]). In opposition, theplaintiff need only raise a triable issue of fact as to elements on which the defendant has met itsprima facie burden (see Stukas vStreiter, 83 AD3d 18, 30 [2011]).
"A psychiatrist may not be held liable for a mere error in professional judgment" (Thomas v Reddy, 86 AD3d 602,603-604 [2011]; see Betty v City ofNew York, 65 AD3d 507, 509 [2009]; Fotinas v Westchester County Med. Ctr.,300 AD2d 437, 438-439 [2002]; Seibert v Fink, 280 AD2d 661 [2001]; Weinreb vRice, 266 AD2d 454, 455 [1999]). Rather, "for a psychiatrist to be held liable for malpracticebased upon a decision made in connection with a patient's treatment or a decision to discharge apatient from a hospital, it must be shown that the treatment decisions represented something lessthan a professional medical determination . . . or that the psychiatrist's decisionswere not the product of a careful evaluation" (Ozugowski v City of New York, 90 AD3d 875, 876 [2011][citation and internal quotation marks omitted]; see Thomas v Reddy, 86 AD3d at 604;Betty v City of New York, 65 AD3d at 509; Fotinas v Westchester County Med.Ctr., 300 AD2d at 439; Seibert v Fink, 280 AD2d at 662; Weinreb v Rice,266 AD2d at 455; Bell v New York City Health & Hosps. Corp., 90 AD2d 270, 280-281[1982]).
Aldana-Bernier demonstrated her prima facie entitlement to judgment as a matter of law bysubmitting an expert affidavit demonstrating that she had not deviated or departed from acceptedcommunity standards of practice (see Betty v City of New York, 65 AD3d at 509). Shedid not, however, establish prima facie that no claimed deviation or departure was a proximatecause of the plaintiff's injuries. On this element, the expert affidavit she submitted in support ofher motion was entirely conclusory. Consequently, to defeat Aldana-Bernier's motion, theplaintiff was required only to demonstrate that there was a triable issue of fact as to departure(see Stukas v Streiter, 83 AD3d at 30). The plaintiff raised a triable issue of fact on thiselement through the submission of an expert affidavit (see Thomas v Reddy, 86 AD3d at604; Fotinas v Westchester County Med. Ctr., 300 AD2d at 439). Accordingly, theSupreme Court properly denied Aldana-Bernier's motion for summary judgment dismissing thecomplaint insofar as asserted against her.[*3]
However, the Supreme Court should have granted themotion of Severe and JHMC for summary judgment dismissing the complaint insofar as assertedagainst them, except with respect to those causes of action which allege that JHMC is vicariouslyliable for the alleged medical malpractice of Aldana-Bernier. Severe and JHMC made a primafacie showing, through the submission of an expert affirmation, that the treatment provided toFrank by JHMC and its personnel, including Severe, did not depart from accepted standards ofmedical treatment. In opposition, the plaintiff failed to raise a triable issue of fact as to whetherSevere departed from accepted medical practice. To the extent the plaintiff's medical expertopined that Severe departed from accepted medical practice in connection with Frank's treatmentor discharge, that portion of the affirmation is conclusory and, thus, insufficient to raise a triableissue of fact (see Betty v City of New York, 65 AD3d at 509; Dunn v Khan, 62 AD3d 828, 829[2009]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). The plaintiff alsofailed to raise a triable issue of fact as to whether any other JHMC personnel, exceptAldana-Bernier, committed a departure. Accordingly, there is no basis to hold JHMC liableindependent of its vicarious liability for the alleged malpractice of Aldana-Bernier. Eng, P.J.,Balkin, Hall and Sgroi, JJ., concur.