Ballek v Aldana-Bernier

Ballek v Aldana-Bernier 2012 NY Slip Op 02823 Decided on April 17, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
RANDALL T. ENG
L. PRISCILLA HALL
SANDRA L. SGROI, JJ.
2011-04325
(Index No. 21267/08)

[*1]Donna Ballek, etc., respondent,

v

Lilian Aldana-Bernier, etc., et al., appellants, et al., defendant.




Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael
P. Kandler and Steven M. Kaye of counsel), for appellant Lilian
Aldana-Bernier.
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), for
respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Lilian Aldana-Bernier appeals, and the defendants Ernst G. Severe and Jamaica Hospital Medical Center 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 dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Ernst G. Severe and Jamaica Hospital Medical Center which was for summary judgment dismissing the complaint insofar as asserted against the defendant Ernst G. Severe, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

On September 14, 2006, Frank Ballek was taken by ambulance to the emergency room of Jamaica Hospital Medical Center (hereinafter JHMC). A psychiatric consultation was ordered and, as a result, physician Lilian Aldana-Bernier evaluated Frank. That night, an attending physician, 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 (hereinafter the plaintiff), commenced this action, inter alia, to recover damages for medical malpractice against, among others, Aldana-Bernier, Severe, and JHMC. Subsequently, Aldana-Bernier moved for summary judgment dismissing the complaint insofar as asserted against her, and Severe and JHMC moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the separate motions.

"The requisite elements of proof in a medical malpractice action are a deviation or [*2]departure from accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage" (Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006; see Deutsch v Chaglassian, 71 AD3d 718, 719; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842). "On a motion for summary judgment, a defendant physician has the burden of establishing the absence of any deviation or departure, or that the patient was not injured thereby" (Castro v New York City Health & Hosps. Corp., 74 AD3d at 1006; see Deutsch v Chaglassian, 71 AD3d at 719; Rebozo v Wilen, 41 AD3d 457, 458). In opposition, the plaintiff need only raise a triable issue of fact as to elements on which the defendant has met its prima facie burden (see Stukas v Streiter, 83 AD3d 18, 30).

"A psychiatrist may not be held liable for a mere error in professional judgment" (Thomas v Reddy, 86 AD3d 602, 603-604; see Betty v City of New York, 65 AD3d 507, 509; Fotinas v Westchester County Med. Ctr., 300 AD2d 437, 438-439; Seibert v Fink, 280 AD2d 661; Weinreb v Rice, 266 AD2d 454, 455). Rather, "for a psychiatrist to be held liable for malpractice based upon a decision made in connection with a patient's treatment or a decision to discharge a patient from a hospital, it must be shown that the treatment decisions represented something less than a professional medical determination . . ., or that the psychiatrist's decisions were not the product of a careful evaluation" (Ozugowski v City of New York, 90 AD3d 875, 876 [internal citation and 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).

Aldana-Bernier demonstrated her prima facie entitlement to judgment as a matter of law by submitting an expert affidavit demonstrating that she had not deviated or departed from accepted community standards of practice (see Betty v City of New York, 65 AD3d at 509). She did not, however, establish prima facie that no claimed deviation or departure was a proximate cause of the plaintiff's injuries. On this element, the expert affidavit she submitted in support of her motion was entirely conclusory. Consequently, to defeat Aldana-Bernier's motion, the plaintiff 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 this element through the submission of an expert affidavit (see Thomas v Reddy, 86 AD3d at 604; Fotinas v Westchester County Med. Ctr., 300 AD2d at 439). Accordingly, the Supreme Court properly denied Aldana-Bernier's motion for summary judgment dismissing the complaint insofar as asserted against her.

Similarly, the Supreme Court properly denied that branch of the motion of Severe and JHMC which was for summary judgment dismissing the complaint insofar as asserted against JHMC. Severe and JHMC do not argue that JHMC cannot be held vicariously liable for the negligence, if any, of Aldana-Bernier. Severe and JHMC argue that Aldana-Bernier is entitled to summary judgment, and that once summary judgment is granted in favor of Aldana-Bernier, all vicarious liability claims asserted against JHMC, premised on the actions of Aldana-Bernier, must be dismissed. Since the Supreme Court properly denied Aldana-Bernier's motion for summary judgment dismissing the complaint insofar as asserted against her, the court also properly denied that branch of the motion of Severe and JHMC which was for summary judgment dismissing the complaint insofar as asserted against JHMC.

However, the Supreme Court should have granted that branch of the motion of Severe and JHMC which was for summary judgment dismissing the complaint insofar as asserted against Severe. In opposition to those defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to Severe. To the extent the plaintiff's medical expert opined that Severe departed from accepted medical practice in connection with Frank's treatment or discharge, that portion of the affirmation is conclusory and, thus, insufficient to raise a triable issue of fact (see Betty v City of New York, 65 AD3d at 509; Dunn v Khan, 62 AD3d 828, 829; see also Alvarez v Prospect Hosp., 68 NY2d 320, 325).
BALKIN, J.P., ENG, HALL and SGROI, JJ., concur. [*3]

ENTER:

Aprilanne Agostino

Clerk of the Court