Wulbrecht v. Jehle

• Decision Date: 10 November 2011
• Citation: 2011 N.Y. Slip Op. 08051,89 A.D.3d 1470,933 N.Y.S.2d 467
• Parties: Nancy S. WULBRECHT, As Administratrix of the Estate of Robert M. Wulbrecht, Deceased, Plaintiff–Respondent, v. Dietrich V. JEHLE, M.D., et al., Defendants,Victoria Brooks, M.D. and Hong Yu, M.D., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08051

89 A.D.3d 1470

933 N.Y.S.2d 467

Nancy S. WULBRECHT, As Administratrix of the Estate of Robert M. Wulbrecht, Deceased, Plaintiff–Respondent,

v.Dietrich V. JEHLE, M.D., et al., Defendants,Victoria Brooks, M.D. and Hong Yu, M.D., Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 10, 2011.

Ricotta & Visco, Attorneys & Counselors at Law, Buffalo (K. John Bland of Counsel), for Defendants–Appellants.

Brown Chiari LLP, Lancaster (Michael R. Drumm of Counsel), for Plaintiff–Respondent.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, and GORSKI, JJ.

MEMORANDUM:

Plaintiff, as administratrix of the estate of her husband, commenced this medical malpractice and wrongful death action seeking damages for the death of her husband, a psychiatric patient who committed suicide. Defendants-appellants (hereafter, defendants) appeal from an order denying their motion for summary judgment dismissing the complaint and all cross claims against them.

We note at the outset that defendants contend that their motion should have been granted based on the theory that liability cannot attach to the exercise of professional medical judgment by a psychiatrist provided that the psychiatrist performed a competent examination and evaluation of the patient. Defendants are correct that, generally, “[t]he prevailing standard of care governing the conduct of medical professionals ... demands that a doctor exercise ‘that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where [the doctor] practices' ” ( Nestorowich v. Ricotta, 97 N.Y.2d 393, 398, 740 N.Y.S.2d 668, 767 N.E.2d 125, quoting Pike v. Honsinger, 155 N.Y. 201, 209, 49 N.E. 760). They further correctly contend that “ ‘[a] doctor is not liable for an error in judgment if [the doctor] does what (he, she) decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances' ” ( id. at 399, 740 N.Y.S.2d 668, 767 N.E.2d 125). However, the “error in judgment” rule is applicable “ ‘only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives' ” ( Rospierski v. Haar, 59 A.D.3d 1048, 1049, 873 N.Y.S.2d 802; see Nestorowich, 97 N.Y.2d at 399–400, 740 N.Y.S.2d 668, 767 N.E.2d 125; Anderson v. House of Good Samaritan Hosp., 44 A.D.3d 135, 139–141, 840 N.Y.S.2d 508). “Where no such choice has been made, ‘a doctor may be liable only if the doctor's treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care’ ” ( Anderson, 44 A.D.3d at 140, 840 N.Y.S.2d 508, quoting Nestorowich, 97 N.Y.2d at 399, 740 N.Y.S.2d 668, 767 N.E.2d 125).

Here, plaintiff did not allege that defendants “failed to use [their] best judgment” but, rather, “plaintiff's theory was that [defendants] failed to adhere to accepted medical standards” in diagnosing and treating the lethality of plaintiff's husband ( Anderson, 44 A.D.3d at 140, 840 N.Y.S.2d 508; see Rospierski, 59 A.D.3d at 1049, 873 N.Y.S.2d 802). Likewise, defendants did not testify at their depositions that they “made a choice between or among medically acceptable alternatives” ( Anderson, 44 A.D.3d at 140, 840 N.Y.S.2d 508; see Rospierski, 59 A.D.3d at 1049, 873 N.Y.S.2d 802; cf. Topel v. Long Is. Jewish Med. Ctr., 55 N.Y.2d 682, 684, 446 N.Y.S.2d 932, 431 N.E.2d 293). Moreover, the expert for defendants simply opined in a supporting affidavit that their assessment of the lethality of plaintiff's husband was “correct” and did not opine that defendants acted as reasonably prudent psychiatrists in choosing among acceptable alternatives for treating him ( see Rospierski, 59 A.D.3d at 1049, 873 N.Y.S.2d 802; Anderson, 44 A.D.3d at 140, 840 N.Y.S.2d 508).

Contrary to defendants' alternative contention, the court properly denied their motion inasmuch as they failed to meet their “initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff['s husband] was not injured thereby” ( James v. Wormuth, 74 A.D.3d 1895, 904 N.Y.S.2d 845 [internal quotation marks omitted]; see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d...