Wulbrecht v. Jehle

• Decision Date: 14 June 2010
• Parties: Nancy S. WULBRECHT, as Administratrix of the Estate of Robert M. Wulbrecht, Plaintiff v. Dietrich JEHLE, M.D., Denise Giessert, M.D., Victoria Brooks, M.D., Subhdeep Virk, M.D., Hong Yu, M.D. and Erie County Medical Center Corporation, Defendants.
• Court: New York Supreme Court

902 N.Y.S.2d 910

28 Misc.3d 808

Nancy S. WULBRECHT, as Administratrix of the Estate of Robert M. Wulbrecht, Plaintiff

v.Dietrich JEHLE, M.D., Denise Giessert, M.D., Victoria Brooks, M.D., Subhdeep Virk, M.D., Hong Yu, M.D. and Erie County Medical Center Corporation, Defendants.

Supreme Court, Erie County, New York.

June 14, 2010.

Brown Chiari, LLP, Michael R. Drumm, Esq., of Counsel, Attorneys for Plaintiff.

Ricotta & Visco, Dr. Brooks, Dr. Virk and Dr. Yu, Jessica L. Welker, Esq., of Counsel, Attorneys for Defendants Dr. Jehle, Dr. Giessert,

Erie County Attorney's Office, Ruthanne Wannop, Esq., of Counsel, Attorneys for Erie County Medical Center Corporation.

JOHN M. CURRAN, J.

Defendants, Victoria Brooks, M.D. and Hong Yu, M.D. ("physicians"), have moved pursuant to CPLR § 3212 for summary judgment dismissing plaintiff's complaint and all cross-claims. Defendant, Erie County Medical Center Corporation ("ECMC"), also has moved for summary judgment pursuant to CPLR § 3212 for an order dismissing the Complaint against the hospital.

FACTUAL BACKGROUND

On August 6, 2006, Robert Wulbrecht (plaintiff's decedent, hereinafter referred to as "Mr. Wulbrecht"), was involved in a confrontation with the City of Buffalo Police outside one of his rental properties. Plaintiff, Nancy S. Wulbrecht ("Mrs.Wulbrecht"), Mr. Wulbrecht's spouse, was informed by the police that she needed to take her husband to ECMC. Mrs. Wulbrecht did so. Early the next morning, Mr. Wulbrecht arrived home having been released by the hospital.

On August 9, 2006, Mr. Wulbrecht made a telephone call to his therapist, Dr. Jenkins, requesting a refill of his medications. Mr. Wulbrecht informed Dr. Jenkins that he had taken a handful of Valium because he was unable to sleep. Dr. Jenkins thereupon phoned the Town of Amherst Police.

Mr. Wulbrecht was brought to ECMC by the police on August 9, 2006, at approximately 5:00 p.m. Mr. Wulbrecht was evaluated in the emergency department and then transferred to the Comprehensive Psychiatric Education Program ("CPEP").

Mr. Wulbrecht was initially evaluated in the CPEP by nurse Julia Worczak and then by a psychiatric resident, Dr. Denise Giessert (an ECMC employee at the time). During that evaluation, Mr. Wulbrecht denied suicidal intent, stating that he had taken the pills because he needed to sleep. Dr. Giessert was of the opinion that Mr. Wulbrecht required admission to the psychiatric unit for "stabilization and continued lethality assessment" and should be placed on "Level I observation," requiring that he be checked every thirty minutes. These checks included looking into the room to observe the patient and his demeanor, and checking the room for dangerous objects. After performance of such a check, a nurse initials a form stating that the patientwas observed. Defendant, Dr. Brooks, the attending psychiatrist, reviewed and approved Dr. Giessert's notes and orders.

Upon admission, Mr. Wulbrecht came under the treatment of defendant, Dr. Yu, another attending psychiatrist. Mr. Wulbrecht also denied to Dr. Yu any suicidal intent and repeatedly voiced his desire to go home. Dr. Yu retained the Level I observance and ordered the thirty minute checks to be continued. That decision was based in part on the doctor's conversation with Mr. Wulbrecht and a review of the patient's file, including the report of Dr. Giessert and Dr. Brooks.

The thirty-minute checks continued throughout the evening of August 10, 2006 and in the early morning hours of August 11, 2006. Nurse Joyce Paige performed a check of Mr. Wulbrecht at 6:30 a.m. on August 11, 2006, at which time Mr. Wulbrecht was apparently stable. At approximately 6:40 a.m. that day, while performing rounds before his shift was to start at 7:00 a.m., Nurse Scott Comstock entered Mr. Wulbrecht's room and found him hanging from the back of the bathroom door by a bed sheet. Although CPR was performed, Mr. Wulbrecht could not be resuscitated. Plaintiff commenced this psychiatric malpractice action on August 29, 2007.

PARTIES' CONTENTIONS

Plaintiff claims that the defendants were negligent primarily in the following respects: (1) failure to properly evaluate and heed Mr. Wulbrecht's symptoms and behavior and treat his suffering; (2) failure to assess Mr. Wulbrecht's history and to learn specifics about his psychiatric history from his family and treating psychiatrists or past records in evaluating his suicide risk; (3) failure to order and implement an appropriate suicide watch and suicide measures; (4) failure to follow their own and others' treatment plans; and (5) failure to prevent Mr. Wulbrecht's suicide. Plaintiff's Amended Verified Bill of Particulars for the physicians are attached to the physicians' motion papers as Exhibit D.

The defendant physicians have moved for summary judgment on the grounds that, as psychiatrists, their professional judgment is entitled to deference under the law and that the medical judgment they exercised in connection with Mr. Wulbrecht's treatment is not subject to jury scrutiny ( see e.g. Topel v. Long Island Jewish Med. Ctr., 55 N.Y.2d 682, 446 N.Y.S.2d 932, 431 N.E.2d 293 [1981]; Betty v. City of New York, 65 A.D.3d 507, 884 N.Y.S.2d 439 [2d Dept. 2009]; Seibert v. Fink, 280 A.D.2d 661, 720 N.Y.S.2d 564 [2d Dept. 2001] ). The defendant physicians also contendthat there is no causal connection between the physicians' actions/inactionsand Mr. Wulbrecht's suicide ( see e.g., Bickford v. St. Francis Hosp., 19 A.D.3d 344, 796 N.Y.S.2d 149 [2d Dept. 2005], lv. denied 5 N.Y.3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733 [2005]; Amsler v. Verrilli, 119 A.D.2d 786, 501 N.Y.S.2d 411 [2d Dept. 1986] ).

ECMC, also relying on Topel, argues that it is entitled to summary judgment because the record demonstrates that its employees followed all of the orders issued by Mr. Wulbrecht's attending physicians and therefore is not subject to direct liability. ECMC also argues that general negligence standards should not apply because plaintiff is alleging that ECMC failed to exercise due care in its professional skill and judgment, which sounds in malpractice ( see e.g. Edbauer v. Harris Hill Nursing Facility, 245 A.D.2d 1103, 667 N.Y.S.2d 573 [4th Dept. 1997]; Smee v. Sisters of Charity Hosp. of Buffalo, 210 A.D.2d 966, 620 N.Y.S.2d 685 [4th Dept. 1994] ).

MOTION STANDARDS

On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing of entitlement to judgment as a matter of law after tendering evidence sufficient to eliminate any material issue of fact from the case ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Defendant has the burden of affirmatively demonstrating the merits of its defense and does not meet its burden by merely noting gaps in the plaintiff's proof ( see Edwards v. Arlington Mall Assocs., 6 A.D.3d 1136, 1137, 775 N.Y.S.2d 673 [4th Dept. 2004] ). Until the movant establishes its entitlement to judgment as a matter of law, the burden does not shift to the opposing party to raise an issue of fact and the motion must be denied ( see Loveless v. Am. Ref-Fuel Co. of Niagara, LP, 299 A.D.2d 819, 820, 750 N.Y.S.2d 705 [4th Dept. 2002] ). The courts are required upon a defendant's motion for summary judgment to view the evidence in the light most favorable to the plaintiff ( see Evans v. Mendola, 32 A.D.3d 1231, 1233, 821 N.Y.S.2d 323 [4th Dept. 2006]; Esposito v. Wright, 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430 [4th Dept. 2006] ). However, once the moving party establishes its entitlement to judgment through the tender of admissible evidence, the burden shifts to the non-moving party to raise a triable issue of fact ( see Gern v. Basta, 26 A.D.3d 807, 808, 809 N.Y.S.2d 724 [4th Dept. 2006], lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 355, 856 N.E.2d 919 [2006] ).

These standards are of course equally applicable to motions for summary judgment in medical malpractice actions. "[O]n a motion for summary judgment, a defendant doctor has the initial burden of establishing the absence of any departure fromgood and accepted medical practice or that the plaintiff was not injured thereby" ( Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664 [2d Dept. 2004] ). In opposition, a plaintiff "must submit material or evidentiary facts to rebut the physician's prima facie showing that he or she was not negligent in treating the plaintiff" ( DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674 [2d Dept. 2003] ).

As the Court of Appeals held twenty-five years ago:

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers."

( Winegrad, 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642)(internal citations omitted). In Winegrad, the Court reversed the grant of summary judgment in favor of the defendant physicians in a medical malpractice case on the grounds that the papers submitted in support of the defendant's motion contained only "bare conclusory assertions" containing "no factual relationship to the alleged injury" (64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

For a defendant to meet its burden on a motion for summary judgment in a medical malpractice action, the proof submitted must be more than conclusory assertions that a defendant's actions were in keeping with accepted medical standards ( Seefeldt v. Johnson, 13 A.D.3d 1203, 787 N.Y.S.2d 594 [4th Dept. 2004] ). "[O]nly when a defendant refutes by specific factual reference the allegations of malpractice made by the plaintiff does the burden of going forward with the proof shift to the plaintiff to produce evidentiary proof in admissible form establishing the existence of material questions of fact" ( Ritt v. Lenox Hill Hosp., 182 A.D.2d 560,...