Shouldis v Strange

[*1] Shouldis v Strange 2019 NY Slip Op 51993(U) Decided on December 3, 2019 Supreme Court, New York County Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2019
Supreme Court, New York County

Charlene Shouldis, as Administratrix of the Estate of RICHARD SHOULDIS, deceased, and CHARLENE SHOULDIS, individually, Plaintiff,

against

Theodore Strange, M.D., Defendant.



450608/2019



Attorneys for plaintiff Charlene Shouldis

Sullivan Papain Block McGrath & Cannavo, P.C.

By: Vito A. Cannavo

Attorneys for defendant Theodore Strange, M.D.

Belair & Evans, LLP

By: Raymond W. Belair
Alan C. Marin, J.

The Court has considered the following submissions:

Defendant's Notice of Motion and Affirmation in Support of Post-Trial Motion [efile doc 11]; Plaintiff's Affidavit in Opposition [efile doc 2]; and Defendant's Reply Affirmation in Support of Post-Trial Motion [efile doc 8].

Charlene Shouldis has brought suit for medical malpractice against Dr. Theodore Strange, arising from the suicide of her husband, Richard. At trial,[FN1] the jury found that Dr. Strange had committed malpractice and awarded the following amounts in damages:

$2,500,000 for Richard Shouldis' pain and suffering; $441,433 and $1,176,473 for past and future loss of earnings; $389,103 for loss of pension benefits; $69,625 and $396,367 for past and future loss of household services; $2,000,000 and $3,000,000 for past and future loss of parental guidance.

Dr. Strange moves here under CPLR 4404 (a) for the Court to: i) set aside the verdict and either direct a verdict in his favor or order a new trial; or ii) set aside the damages award as excessive and order a new trial thereon.

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Dr. Strange, board certified in internal medicine, had been Richard Shouldis' primary care physician for many years, and the two were otherwise acquainted because Shouldis was an x-ray technician at Staten Island University Hospital, where defendant had attending privileges and [*2]administrative responsibilities.[FN2]

The relevant treatment began with a May 2, 2012 consult for Mr. Shouldis' lower back pain. Over the next five weeks, Richard Shouldis began to complain of anxiety brought on by a new supervisor at the hospital, and he saw Dr. Strange on May 30, and June 6, 2012. The three consults were at the doctor's office, 68 Seguine Avenue, in Staten Island.

On June 6, Richard's wife had accompanied him, which was the first time she had ever done so. Mrs. Shouldis testified at trial that she told the doctor of her fear that her husband would kill himself. Dr. Strange testified he asked Richard if he was going to hurt himself and that his patient denied it. Dr. Strange recommended he see a psychologist, rather than a psychiatrist, because on Staten Island, the former could be scheduled more quickly.

Later that night, Richard Shouldis went into the garage, shut its door, turned on his car's ignition and asphyxiated himself. Charlene found him early the next morning. Hours later, the psychologist, for whom Richard had left a message, called back.

The jury was asked separately whether defendant departed from accepted medical practice "in his treatment of Richard Shouldis" and "by not sending [him] to a hospital emergency room on June 6, 2012." Both questions were answered in the affirmative, as the jury did for the corresponding questions on proximate cause.

Treatment

The testimony varied as to what occurred between Dr. Strange and his patient, as well as with Mrs. Shouldis; issues of credibility are, of course, the jury's domain. Consult records are an

important source of information on a patient. The jury heard testimony and saw that Dr. Strange made a number of changes to the records, which the jury was entitled to regard as evidence of defensiveness or preparation for litigation. In any event, it is undisputed that such entries were made and dated after Richard Shouldis' suicide.

May 2, 2012 Office Consult

Richard had just turned 48 years old. Shouldis' chief complaint that day was recorded as "back pain recently worsening." The patient was prescribed Nabumetone for his lumbar disc degeneration. He had been on Simvastatin, a cholesterol medication, which was discontinued.

The chart has a heading for Physical Exam, which includes a number of subheadings, one of which is "psychiatric." For the latter, Dr. Strange entered "normal" next to both "Mood and affect" and "Orientation to person, place and time." As for the chart emendations: Strange crossed out his entries in Physical Exam for the abdomen, liver and spleen, initialing "TS 11.28.12" (and made the same changes and date notation for the May 30 consult).

May 30, 2012 Office Consult (and June 4 Phone Call)

The record states that there were "no significant interval events. . .The patient complains of medication side effects . . . malaise and muscle aches," although "improved muscle pain [back]" was recorded and Nabumetone continued. The doctor noted that Shouldis was not doing well with his hyperlipidemia goals (cholesterol) and the medication for it was resumed.. The low fat and salt regimen was continued from May 2 along with a plan to "begin a limited exercise program."

The psychiatric section of the chart records "normal" next to both "Mood and affect" and "Orientation to person, place and time." Consider this testimony by Dr. Strange:

"Q. But on that day you gave him the Xanax for his anxiety, correct?A. Yes.Q. So although he was anxious and he needed this medication, you're saying that his mood and affect is—or his orientation, his psychological status was normal, correct?A. It may have been normal in the office that day, but he may have said to me, I'm a little anxious at times."

Mrs. Shouldis had testified that on May 2, her husband was "a little anxious, a little worried but nothing he couldn't handle at that time." But by May 30, Richard's condition "was getting a lot worse." He complained about work, told Charlene it was hard to concentrate there, was not sleeping well, stopped riding his motorcycle and the two no longer went on their long walks: "He was just withdrawing. He wasn't the same."

Mrs. Shouldis testified that Richard told her he thought the Xanax (prescribed on Wednesday, May 30) would help, but recalled that:

"He actually got worse. He was taking the medicine the way he was supposed to. He was sleeping less. . . I didn't even recognize him. He was . . .such a different person." Charlene added that Richard was "waking up with panic attacks and cold sweat, telling me his mind was racing . . . His heart was pounding."

Mrs. Shouldis testified she heard her husband call and ask to see the doctor that day, Monday, June 4. No appointment was set, but a prescription was called into the local pharmacy for Ambien, a sleep aid, which Mrs. Shouldis went out and picked up. Her husband took one tablet that night and one on June 5. The June 4 call and prescription is not referenced in the doctor's chart.

June 6, 2012 Office Consult

According to Mrs. Shouldis, as of the morning of Wednesday, June 6, Richard had been taking the Xanax up to that point. He was also taking Ambien, but could not sleep on the night of June 4 or June 5, waking Charlene up, and according to her testimony "saying things like, I can't take this, I can't live like this. And I got up in the morning [Wednesday, June 6] and I said, you have to go the doctor today, if not, I'm going to take you to the hospital. And he called Dr. Strange's office and made the appointment." Mr. Shouldis saw the doctor that day, the chart entry noting it was at 11:45 a.m.; Mrs. Shouldis was present.

The History of Present Illness opens with: "The patient is being seen for a routine clinic follow-up of anxiety." The symptoms, which Mrs. Shoudis testified to as well, were: difficulty concentrating and sleeping, excessive worry, fatigue, nervousness, panic attacks, and a racing heart (without chest pain). His weight was 219 pounds, down from 235 on May 2 and 225 pounds on May 30; her husband "wasn't eating" explained Mrs. Shouldis.

Dr. Shouldis prescribed escitalopram oxilate or Lexapro. In addition to a better diet, including staying away from caffeine, the plan was for more exercise, which was intended to reduce stress.

Typed into the June 6 chart was "His symptoms are caused by no known event," then a handwritten, undated change crossing out "no known event"and adding that they were "caused by issues at work," although the original typed notes had read: "Symptoms are made worse by lack [*3]of sleep, stress and job issues."

Four additional amendments to the chart in Dr. Strange's handwriting were all dated much later in the year, on November 28. However, three other amendments were typed in with this notation: "06/07/2012, 9:28 AM," which changed his "Mood and affect" from normal to "anxious [and] depressed."

Mrs. Shouldis testified that on June 6, they did not go to Staten Island University Hospital (SIUH), which was a quarter mile from their home because "[Richard] worked there[FN3] and . . ."he didn't want everybody to know how he was feeling. He didn't want that stigma. I said, we'll start—we'll go to the doctor's office first." At Dr. Strange's office, "I told them he needed to be admitted, he was going to kill himself."

According to Mrs. Shouldis, her husband told Dr. Strange that he was depressed, losing interest in the things that he had enjoyed, was nervous and anxious and it was getting worse and worse, and that she told the doctor: "I wanted him admitted to the hospital. . . I thought he wanted to kill himself after what he was saying in the night, I can't take this, I can't live like this." Mrs. Shouldis testified that Dr. Strange then "looked at Rick and he said, everyone goes through this, Rick, you're not going to hurt yourself, right?" Mrs. Shouldis said that Dr. Strange asked no further questions about hurting himself, did not ask about Richard killing himself, nor was the word suicide mentioned.

Mrs. Shouldis recalled that her husband then said, "I'll be okay." Then, "Dr Strange told us that he wanted to prescribe the anti-depressants[FN4] and that it would take about a few weeks to kick in and I said, we don't have a few weeks, he needs something done right now. . . I told him I thought he was going to kill himself." The jury was entitled to credit Mrs. Shouldis' trial testimony over her deposition testimony of February 21, 2014 : "I just told him that I never saw my husband like this before and . . . because Dr. Strange said the medication would take weeks to kick in, and I said isn't there something else." Mrs. Shouldis indicated that Dr. Strange's response was that the Xanax would "get [him] through those few weeks."

Charlene Shouldis testified that when she and her husband left Dr. Strange's office, they were "hopeful," because the doctor was "so calm and . . . kept reassuring us that everything was going to be okay, that this plan was going . . . to work." Once home, Richard called the psychologist, got a recording and left a message that he needed to speak with her immediately.

Husband and wife went out to lunch after they left Dr. Strange's office, stopped at a pharmacy to fill the Lexapro prescription, had an early dinner, went out shopping, returned home and watched a movie together on TV. Mrs. Shouldis testified at her deposition that their daughter, April, had come home around 11 p.m. that night and Richard came out of their bedroom to speak with her. The supplemental case information for the autopsy report states that "The daughter told police she was in the living room watching television and around 11:30 p.m. [*4]was going in her room to bed when she saw the decedent come out into the living room and lie down on the couch."

The report continued that Mrs. Shouldis awoke around 5:00 a.m., heard a fan-like noise, went out to the garage and found her husband lying face down next to the car. Emergency Services recorded the death at 5:26 a.m. Richard Shouldis was alive at around 11:30 p. m. and found dead early the next morning, some six hours later.

* * *

Mrs. Shouldis testified that she would have gone to a psychiatrist if Dr. Strange had recommended such. It was undisputed that the Shouldis' would not go to the nearby SIUH because Richard worked there. The psychologist Dr. Strange recommended called back the next day; it went unchallenged that on Staten Island one could get an appointment sooner with a psychologist than a psychiatrist. There was testimony on the fact that the antidepressant, Lexapro, would take three weeks to reach full strength, but a medication that reached full-strength in, for example, 36 hours (or less) would have had no different result.

To implicate medical malpractice, as a matter of law, there must be a basis for proximate causation (Christophel v NewYork-Presbyt./Weill Med. Col. of Cornell Univ., 2018 WL500459 (p ** 18], affd 171 AD3d 611, 1st Dept). In Feliz v Beth Israel, 38 AD3d 396, 1st Dept, the opinion of plaintiff's expert on causation was too conclusory to create an issue of fact for the jury. See Park v Kovachevich, 116 AD3d 182, 192, 1st Dept.

Here, the causal link, if any, was too attenuated. Plaintiff's sole medical expert, neurologist Lawrence Shields, did not supply such a basis. There was nothing in Dr. Shield's testimony that properly linked any departure to the suicide when it occurred.[FN5]

When asked whether Richard Shouldis should have been sent to an emergency room from the June 6 consult, Dr. Shields answered vaguely as to the time frame: "Ultimately, yes."

Continuing with Dr. Shields' lack of specificity:

"Q. Well should he have arranged to have the patient sent to an emergency room?A. Yes.Q. That day?A. Or a psychiatrist or any other doctor knowledgeable about suicide patients."

* * *

In view of the foregoing, IT IS ORDERED that defendant's motion to set aside the verdict and direct a verdict in favor of Dr, Theodore Strange is granted.

ENTER

December 3, 2019

Alan C. Marin

J.S.C. Footnotes

Footnote 1: The trial was held before me in Richmond County; the Rule 4404 motion was transferred to New York County, and oral argument was heard on November 18, 2019.

Footnote 2: Dr. Strange also holds board certifications in geriatric medicine and quality assurance and utilization review. References in this order to Staten Island University Hospital shall mean its south campus.

Footnote 3: Mr. Shouldis had continued to work right up through the previous day, June 5.

Footnote 4: Plaintiff's counsel in his memorandum of opposition and at oral argument highlighted the fact that defendant's expert psychiatrist, Dr. Philip Muskin, concluded that Richard Shouldis had major depressive disorder, and that Dr. Strange, while prescribing an anti-depressant, entered in his patient's chart under Assessment, "Depression with anxiety 300.4," when he should have referred to section 296, "Major Depressive Disorder" from the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV was in effect in 2012).

Footnote 5: Dr. Shields had previously acknowledged the problematic nature of timing/causation in his February 14, 2012 testimony in N.P. v J. F, on February 14, 2012, in which he assessed an individual (not his patient) as a suicide risk because she had stated that she had a plan for it. When asked, "And, Dr. Shields, when you found out about these thoughts and that plan . . . what did you do?" His response was," I sent a letter and called her family doctor and told her I considered this lady a suicide risk and she should be aware of it and get proper help for it . . . "