Centeno v. City of New York

• Decision Date: 24 June 1975
• Citation: 48 A.D.2d 812,369 N.Y.S.2d 710
• Parties: Sixta CENTENO, as Administratrix of the goods, chattels and credits which were of Abraham Centeno, Deceased, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 710

369 N.Y.S.2d 710

48 A.D.2d 812

Sixta CENTENO, as Administratrix of the goods, chattels and credits which were of Abraham Centeno, Deceased, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

June 24, 1975.

Morris Zweibel, New York City, of counsel (Stanley Green, New York City, with him on the brief; Segan, Culhane, Nemerov & Green, P.C., New York City, attorneys), for plaintiff-appellant.

L. Kevin Sheridan, New York City, of counsel (W. Bernard Richland, Corp. Counsel, New York City), for defendant-respondent.

Before MARKEWICH, J.P., and KUPFERMAN, CAPOZZOLI, NUNEZ and YESAWICH, JJ.

PER CURIAM:

The unfortunate suicide, for whose alleged wrongful death this action was brought by his administratrix, was permitted to leave the hospital wherein confined on the basis of the considered professional judgment of the attending psychiatrist that he would do better at home, in the bosom of his family, with necessary medication administered on an outpatient basis. There is not an iota of evidence to indicate that his opinion was other than honest. It is therefore completely irrelevant that plaintiff-appellant's expert testified as is set forth in the dissent. Disagreement between professional experts does not in these circumstances provide the basis for a holding that a prima facie case of malpractice was presented requiring jury consideration.

'The decision to release the patient from the hospital and place him on convalescent status was a medical judgment and the decision to continue him on convalescent out-patient status after February, 1955 and to discharge him in June were also matters of professional medical judgment. Although another physician might disagree as to the form and period of treatment to be followed, a liability would not arise; nor would it arise if the professional judgment to discharge him was in fact erroneous. (St. George v. State of New York, 283 App.Div. 245, 127 N.Y.S. 147, affd. 308 N.Y. 681, 124 N.E.2d 320; Warner v. Packer, 139 App.Div. 207, 123 N.Y.S. 725; Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760.)

The prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instances it involves a measure of calculated risk. If a liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitation of a vast number of patients would be impeded and frustrated. This is one of the medical and public risks which must be taken on balance, even though it may sometimes result in injury to the patient or others.' (Bergan, J. in Taig v. State, 19 A.D.2d 182, 183, 241 N.Y.S.2d 495, 496.)

The judgment in favor of defendant City on dismissal at the close of plaintiff's case should be affirmed, without costs.

Judgment, Supreme Court, New York County, entered on June 24, 1974, affirmed, without costs and without disbursements.

All concur except NUNEZ, J., who dissents in a dissenting opinion.

NUNEZ, Justice (dissenting).

Plaintiff's expert, a Diplomate of the American Board of Psychiatry and Neurology possessing outstanding qualifications as a practicing psychiatrist, testified that he had reviewed...