Dunn v. Khan, 2007 NY Slip Op 33311(U) (N.Y. Sup. Ct. 9/28/2007), 6494-05.
| Decision Date | 28 September 2007 |
| Docket Number | No. 6494-05.,Mot. Seq. 003, 004, 005,6494-05. |
| Citation | 2007 NY Slip Op 33311 |
| Parties | MITCHELL DUNN, as Administrator of the Estate PAULINE DUNN, Deceased, Plaintiff, v. AIJAZ KHAN, M.D., CESAR DUMAYAS FLORITA, M.D., ETHEL CWIBEKER, PSY.D., and SOUTH NASSAU COMMUNITIES HOSPITAL, Defendants. |
| Court | New York Supreme Court |
Motions by defendants, Aijaz Khan, M.D. [Sequence #3], Ethel Cwibeker, Psy.D. [Sequence #4], and motion by defendants, Cesar Dumaya Florita, M.D. and South Nassau Communities Hospital (hereinafter "SNCH") [Sequence #5], all pursuant to CPLR § 3212, for an Order awarding them summary judgment and dismissing the complaint of plaintiff, Mitchell Dunn, as Administrator of the Estate of Pauline Dunn, are determined as follows:
This case arises out of the death of Pauline Dunn on August 25, 2003. Plaintiff, Administrator, Mitchell Dunn, husband of Pauline, brings this action for medical and psychiatric malpractice against a hospital (SNCH), an internist (Dr. Khan), a psychiatrist (Dr. Florita), and a psychologist (Dr. Cwibker). The medical and psychiatric history of Pauline Dunn, a 51 year old married woman at the time of her death, is as follows. Pauline Dunn gave birth to triplet daughters in 1982. After the birth of her daughters, she experienced postpartum depression and was, for a brief period of time, hospitalized in the psychiatric ward of the hospital where she gave birth (Mitchell Dunn EBT, pp. 28, 31). Thereafter, following the September 11, 2001 terrorist attacks, Pauline Dunn suffered from severe anxiety. A non-party physician prescribed Xanax (Id., p. 68).
On or about August 12, 2003, her daughter Nicole attempted suicide by taking "pills" after her friends' drowning deaths (Id., pp. 91-105). Mitchell Dunn testified at his deposition that Pauline also was depressed as a result of the children's death and their daughter's suicide attempt. On August 15, 2003, Nicole sought psychological care with Dr. Ethel Cwibeker. She was accompanied by her parents, Pauline and Mitchell Dunn, to the appointment.
Five days after her daughter's suicide attempt, on August 17, 2003, Pauline drove herself to the Emergency Room (hereinafter "ER") at New York University Hospital. Upon learning where she had gone, Mitchell went there to meet her. In the ER, Pauline confessed that she had had an extramarital affair about 2 months earlier and that she was afraid she had contracted a sexually transmitted disease (Id., pp. 107-110).
Mitchell Dunn testified that after returning home from the hospital that night, he and Pauline had an argument concerning her affair and discussed divorce. Ultimately, they decided to hold off on making any decisions until their daughters left for college later that month (Id., p. 119).
On Tuesday, August 19, 2003, at approximately 5:00 A.M., Mitchell Dunn found Pauline lying on the bed in a spare bedroom. She was unresponsive and he called 911. Pauline was brought into the ER at SNCH with a suspected drug overdose. Dr. Khan, as an attending on call, became her attending internist for admission to SNCH. His admitting diagnosis was "Xanax Overdose." She was admitted to the intensive care unit with "impression of drug overdose and respiratory failure." As a result, she was intubated upon her arrival. The same day, on August 19, Mitchell Dunn, contacted his daughter, Nicole's psychologist, Dr. Cwibeker "to speak with [her] concerning his relationship with Mrs. Dunn" (Cwibeker Affidavit, ¶7). Dr. Cwibeker made an appointment to see him on the following day.
The next morning, Pauline Dunn was extubated. Jackie Rosen, a registered nurse, testified that it was difficult to provide emotional support to her because she was not talking much that day (Rosen Tr., pp. 79-80). On August 20, and again on August 21, Mitchell met with Dr. Cwibeker and sought counseling concerning his marriage and Pauline's infidelity (Cwibeker Affidavit, ¶9).
On August 21, Dr. Khan obtained a psychiatric consultation for Pauline from Dr. Florita, who, like Dr. Khan, practiced at SNCH (Florita Answer, ¶3). Dr. Florita, upon examining Pauline at her bedside noted that she was alert and oriented and was not suicidal or delusional. Pauline identified her betrayal of her husband by having an affair, her daughter's problem and the recent loss of family friends as stressors. She also expressed concern regarding her medical condition. Pauline expressed a willingness to work with her husband in therapy and indicated she wanted her children to do well (Florita Affirmation, ¶7).
Dr. Florita's diagnosis was that Pauline was "suffering from a major depressive disorder and that she was status post an overdose attempt" (Id., ¶8). As a result, Dr. Florita started Pauline on Lexapro and Buspar. Lexapro is a medication indicated for the treatment of major depressive disorders and Buspar is a medication indicated for the treatment of anxiety (Id., ¶13).
Dr. Florita's treatment plan for Pauline also included seeing her husband, Mitchell Dunn. During a 30 to 45 minute conversation with Mitchell Dunn on August 21, Dr. Florita asked him questions regarding collateral history of signs and symptoms, the presence of stressors, the patient's support system and motivation for follow up care, as well as his involvement in his wife's care. Dr. Florita claims that upon speaking to Mitchell, he learned that Pauline "had been seen by a doctor in the city regarding the affair that contributed to the marital stress; that [Pauline] had written a letter to her family expressing remorse for her actions; that [Mitchell] had asked a therapist he was seeing to become involved in her care, co-defendant Ethel Cwibeker, Psy.D" (Florita Affirmation, ¶10).
Pauline Dunn was next seen by Dr. Florita on August 22, 2003. Dr. Florita notes:
At that time the patient did not demonstrate any untoward side effects to the psychiatric medications previously begun. Further discussions with Pauline Dunn and Mitchell Dunn with regard to Pauline Dunn attending outpatient psychiatric care took place at that time. The plan was for Pauline Dunn to be seen on an outpatient basis at [SNCH] psychiatric facility located in Baldwin, New York. Both Pauline Dunn and Mitchell Dunn expressed a willingness for Pauline Dunn to undergo said outpatient psychiatric treatment (Florita Affirmation, ¶15).
Pauline Dunn's admission continued to August 23, 2003. According to the SNCH discharge report, Dr. Khan notes:
Acting on Dr. Florita's recommendation, Dr. Khan discharged Pauline Dunn. The next day, August 24, Mitchell and Pauline Dunn met with Dr. Cwibeker for an initial interview whereupon Dr. Cwibeker explained the marital counseling process and asked for copies of Pauline's discharge papers from SNCH in order to determine how best to proceed with the marital counseling. They both scheduled another appointment to see Dr. Cwibeker on August 25, 2003 at 1:00 pm.
On the morning of August 25, 2003, at 9:00 A.M., Mitchell contacted Dr. Cwibeker insisting on seeing her immediately. Mitchell arrived at her office at around 9:30 A.M. at which time he told her that contrary to her advice, he had continually harassed Pauline about her infidelity the preceding night and that she was at home resting when he left her that morning. Mitchell Dunn testified that Pauline had advised him that earlier that morning she had taken several Fiorcet tablets for a migraine headache. The active ingredients in Fiorcet are 50 milligrams Butalbital, 325 milligrams Acetaminophen and 40 milligrams Caffine.
When Mitchell Dunn returned home that morning, he found Pauline Dunn submerged in the bathtub. The bathroom door had been locked. Pauline was still wearing her underwear, though submerged in the tub. Mitchell pulled her out of the tub and forced water out of her mouth and chest. He then called the police. Pauline was taken back to SNCH where she was pronounced dead. A toxicology report revealed that she had 2.63 mg/L of Butalbital and 25.7 milligrams Acetaminophen in her Femoral Blood. (Plaintiff's Aff in Opp, Ex.G). The Medical Examiner never determined drug overdose to be the cause of death. In fact, no cause of death was ever stated by the medical examiner. The Dunn family, on religious grounds, refused to have an autopsy done on Pauline.
During the investigation into Pauline Dunn's death, the Police Department found an undated note written by her in which she wrote that she had done "something shameful" in June and that she was "running away." She also wrote that she was deserting her family (Aff in Opp, Ex. G). With respect to this note, Mitchell Dunn testified that his wife had personally handed him a note on the night before she overdosed on Xanax. He stated:
Mitchell testified that he read the note in his wife's presence and without even finishing reading it, he put it in his pocket (Id., pp. 169-170).
In bringing this malpractice action, plaintiff alleges that Dr. Khan...
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