Lizardi v Westchester County Health Care Corp.
Annotate this CaseDecided on November 13, 2008
Supreme Court, Westchester County
Andrew Lizardi, as Administrator of the Goods, Chattels & Credits which were of MARC RYAN LIZARDI, Plaintiff,
against
Westchester County Health Care Corporation, WESTCHESTER MEDICAL CENTER, PE SHEIN WYNN, M.D., FAIDHABE CEUS, M.S., SILVIU BURCESCU, M.D., HENNIE H. LU, CSW, MICHAEL DALLOLIO, M.D., AMY SLINGERLAND, CSW, STONY LODGE HOSPITAL, ANDREW APTER, PH.D. and SCOTT MARDER, M.D., Defendants.
1990/03
Clausen Miller, P.C.
Attys. For Deft. Marder
One Chase Manhattan Plaza, 39th fl.
New York, New York 10005
Henderson & Brennan, Esqs.
Attys. For Pltf.
222 Mamaroneck Avenue
White Plains, New York 10605
Kanterman, O'Leary & Soscia, LLP
Attys. For Defts. Westchester Co.
50 Main Street
White Plains, New York 10606
Vincent D. McNamara, Esq.
Attys. For Deft. Stony Lodge, Apter
Tower Square
1045 Oyster Bay Road
East Norwich, New York 11732
Callan, Koster, Brady & Brennan, LLP
Attys. For Deft. Wynn
One Whitehall Street, 10th fl.
New York, New York 10004
Gordon & Silber, P.C.
Attys. For Deft. Burcescu
355 Lexington Avenue
New York, New York 10017
Corpina, Piergrossi, Overzat & Klar, LLP
Attys. For Susan Mooney
2344 Eastchester Road
Bronx, New York 10469
Mary H. Smith, J.
This is a particularly tragic action wherein plaintiff Andrew Lizardi, father of the
infant Marc Ryan Lizardi, seeks to recover damages for the wrongful death of Marc Ryan Lizardi
which had occurred on February 25, 2001, when Marc had been 7 months of age, the cause of his
death being strangulation by his mother, Susan Moody.[FN1] Ms. Mooney subsequently had been tried for
murder [*2]but was found not guilty by reason of
insanity.[FN2]
Presently, defendant Marder, who, according to his own supporting affidavit, was not the treating physician for Ms. Moody during her admission to defendant Stony Lodge Hospital on or about February 9, 2001, but had treated her on at least one occasion during that stay, is moving pre-answer to dismiss the complaint and all cross-claims, arguing that he is entitled to dismissal for failure to state a cause of action because he had no legal duty to either the infant Marc or to Mr. Lizardi. The motion is strenuously opposed by plaintiff.
On a motion to dismiss pursuant to CPLR 3211, subdivision (a), paragraph 7, the Court initially must accept the facts alleged in the complaint as true and then determine whether those facts fit within any cognizable legal theory, irrespective of whether the plaintiff will likely prevail on the merits. See Campaign for Fiscal Equity, Inc. v. State, 86 NY2d 307, 318 (1995); Leon v. Martinez, 84 NY2d 83, 87-88 (1994); People v. New York City Transit Authority, 59 NY2d 343, 348 (1983); Morone v. Morone, 50 NY2d 481 (1980); Guggenheimer v. Ginzburg, 43 NY2d 268, 274-275 (1977); Cavanaugh v. Doherty, 243 AD2d 92, 98 (3rd Dept. 1989): Klondike Gold, Inc. v. Richmond Associates, 103 AD2d 821 (2nd Dept. 1984). The complaint must be given a liberal construction and will be deemed to allege whatever cause of action can be implied by fair and reasonable intendment. See Shields v. School of Law of Hofstra University, 77 AD2d 867, 868 (2nd Dept. 1980); Penato v. George, 52 AD2d 939 (2nd Dept. 1976). The test is whether the pleading gives notice of the transactions relied upon by the plaintiff and whether sufficient material elements of the cause of action have been asserted. The allegations in the complaint cannot be vague and conclusory." Stoianoff v. Gahona, 248 AD2d 525, 526 (2nd Dept. 1998).
Moreover, to prove a prima facie action for negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty and that the breach of that duty was the proximate cause of the injuries sustained. See Engelhart v. County of Orange, 16 AD3d 369 (2nd Dept. 2005). The issue of whether a person or entity owes a duty of care to another is a question of law to be determined by the Court in the first instance. See Purdy v. Public Administration of County of Westchester, 72 NY2d 1, 8 (1988). "The imposition of a legal duty of care does not turn merely on the foreseeability of the harm resulting from an [*3]actor's conduct (citation omitted) ... Rather, ... [c]ourts resolve legal duty questions by resort to common questions of morality, logic and considerations of the social consequences of imposing the duty." Cohen v. Cabrini Medical Center, 94 NY2d 639 (2000).
New York law is well settled that, "absent a special relation between an actor and a third person, there is no duty to control the conduct of that third person so as to prevent him from causing physical harm to another," and liability has been found only "where the defendant had the ability to control the actions of a person known to be violent." Wagshall v. Wagshell, 148 AD2d 445 (2nd Dept. 1985). Moreover, a physician's duty of care ordinarily is owed exclusively to the physician's patient, see Purdy v. Administration of County of Westchester, supra., and where voluntary outpatient treatment is involved, there generally is no duty imposed upon the treating physician to control a patient's conduct. See Engelhart v. County of Orange, supra, citing Pingtella v. Jones, 305 AD2d 38 (4th Dept. 2003). However, "the duty does not disappear" and liability may be imposed "if the failure to place the patient on inpatient status resulted from something other than an exercise of professional judgment ..." Webdale v. North General Hosp., No. 111310/99, slip op. (Sup. Ct. NY Co. 2000), app. dsmd. 287 AD2d 945 (1st Dept. 2001). In limited circumstances, a physician's duty of care has been extended to a patient's family members. See Pingtella v. Jones, supra.
Therefore, applying the above-stated legal standards to the case at bar, the Court denies defendant Marder's motion pursuant to CPLR 3211 without prejudice to the making of a summary judgment motion, if warranted, following the conclusion of discovery, finding that the complaint sufficiently sets forth causes of action against him for malpractice and negligence. Given the present posture of this case and unanswered questions surrounding whether defendant Marder, who admittedly professionally had treated Ms. Mooney on at least one occasion during the weeks preceding the tragic underlying event, had the opportunity to place Ms. Mooney in in-patient status, cf. Engelhart v. County of Orange, supra, what mechanisms, if any, were available to defendant Marder for him to have sought to control over Ms. Mooney who was a threat to Marc, see Rivera v. New York City Health & Hospitals Corporation, 191 F. Supp. 2d 412, 422-443 (S.D.N.Y 2002), whether Andrew Lizardi himself had been aware of Ms. Mooney's expressed ideation with hurting and/or killing her baby and whether defendant Marder had a duty to warn him of such, cf. Wagshall v. Wagshell, supra, whether defendant Marder had read Ms. Mooney's records from prior hospitalizations and had performed a careful psychiatric examination from which he could make a proper medical judgment regarding whether outpatient [*4]status remained appropriate, cf. Winters v. New York City Health & Hospitals Corporation, 223 AD2d 405 (1st Dept. 1996), and whether the determination not to seek Ms. Mooney's involuntary commitment was "a considered medical judgment for which defendants cannot be held liable." Rivera v. New York City Health & Hospitals Corporation, supra, citing Scialdone v. State, 197 AD2d 568 ( Dept. 1993).
The Court's foregoing finding is particularly grounded on the fact that Marc was an identifiable being within the zone of danger, Ms. Mooney having verbally and repeatedly expressed her ideation of hurting and/or killing her baby, at the time the alleged malpractice had been committed and thus defendants, including defendant Marder, may have owed Marc a duty of care independent of the duty owed to Ms. Mooney. Cf. Pingtella v. Jones, supra, 305 AD2d at 42.
The parties shall appear before the undersigned at 9:30 a.m. on December 23, 2008, for a
preliminary conference. This date may not be adjourned without the Court's consent. Any party's
failure to appear may result in the imposition of costs and/or sanctions.
Dated: November 13, 2008
White Plains, New York
_________________________________
Mary H. Smith
J.S.C.
Clausen Miller, P.C.
Attys. For Deft. Marder
One Chase Manhattan Plaza, 39th fl.
New York, New York 10005
Henderson & Brennan, Esqs.
Attys. For Pltf.
222 Mamaroneck Avenue
White Plains, New York 10605
Kanterman, O'Leary & Soscia, LLP
Attys. For Defts. Westchester Co.
50 Main Street
White Plains, New York 10606
Vincent D. McNamara, Esq.
Attys. For Deft. Stony Lodge, Apter
Tower Square
1045 Oyster Bay Road
East Norwich, New York 11732
Callan, Koster, Brady & Brennan, LLP
Attys. For Deft. Wynn
One Whitehall Street, 10th fl.
New York, New York 10004
Gordon & Silber, P.C.
Attys. For Deft. Burcescu
355 Lexington Avenue
New York, New York 10017
Corpina, Piergrossi, Overzat & Klar, LLP
Attys. For Susan Mooney
2344 Eastchester Road
Bronx, New York 10469
Footnotes
Footnote 1:It is not herein disputed that the
medical records reflect that Ms. Mooney, in the time period immediately preceding this tragic
event, had been involuntarily committed to defendant Westchester Medical Center with a
diagnosis of major depression with psychotic features, from December 20, 2000 through January
24, 2001. According to plaintiff, during the course of this hospitalization, Ms. Mooney repeatedly
had informed the doctors that she had thoughts of hurting and killing her baby. Following her
discharge, Ms. Mooney, on January 31, 2001, had telephoned 911 and stated to the police that
"somebody is going to hurt her baby" and that "she needed help." Thereupon, Ms. Mooney was
admitted to defendant Westchester Medical Center on an emergency basis, where she remained
from January 31, 2001 through February 3, 2001. Her admitting diagnosis had been "post partum
psychosis." Thereafter, Ms. Mooney was treated at defendant Stony Lodge Hospital. According
to plaintiff, who is not in possession of the relevant medical records relating to this period of
treatment, it presently is not known whether Ms. Mooney had been treated at Stony Lodge on an
involuntary basis.
Footnote 2:Pursuant to this verdict, Ms.
Mooney had been institutionalized for four years.
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