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Park v. Kovachevich

Supreme Court of New York, First Department

March 13, 2014

Maria Park, etc., Plaintiff-Respondent,
Dr. Thomas Kovachevich, et al., Defendants-Appellants, Dr. Charles Shamoian, et al., Defendants.

Defendants Dr. Thomas Kovachevich, Dr. Aryeh Klahr, the Payne Whitney Clinic and New York Presbyterian Hospital appeal from the order of the Supreme Court, New York County (Alice Schlesinger, J.), entered March 19, 2013, which denied their motions for summary judgment dismissing the complaint as against them.

Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka and Barry M. Viuker of counsel), for Dr. Thomas Kovachevich, appellant.

Martin Clearwater & Bell, LLP, New York (Barbara D. Goldberg, Peter T. Crean and Geri B. Horenstein of counsel), for Dr. Aryeh Klahr, The Payne Whitney Clinic and New York Presbyterian Hospital, appellants. Lisa M. Comeau, Garden City, for respondent.

John W. Sweeny, Jr., J.P., Richard T. Andrias, Helen E. Freedman, Rosalyn H. Richter, Darcel D. Clark, JJ.


This case involves the application of the professional medical judgment doctrine, which, as set forth herein, warrants dismissal of plaintiff's complaint.

On April 20, 2006, plaintiff's decedent Cooper Park, called defendant Dr. Kovachevich, an osteopathic physician and family medicine practitioner who had been his primary care provider since 1999, and told Dr. Kovachevich that he was separating from plaintiff, his wife and needed "something because his nerves were shot." Dr. Kovachevich called in a prescription for Xanax, and asked that Park come see him the following day.

On April 21, Park came in as directed, presenting with complaints of depression, anxiety, and an inability to sleep. Park stated he was "distraught" over his separation from plaintiff. Dr. Kovachevich discussed Park's thoughts on suicide and Park stated that, while suicide had crossed his mind, he would never do that because he had three children. Although he did not believe that Park was at risk of hurting himself, Dr. Kovachevich told Park to consult Dr. Moss, a psychiatrist, that day. He also advised Park to immediately go to an emergency room if he had suicidal thoughts and to call him at any time. Dr. Kovachevich prescribed Lexapro and Xanax, medications used to treat anxiety and depression, and Ambien, a sedative to help Park sleep. A follow-up appointment was scheduled for April 25.

That same evening, Park called plaintiff several times in an attempt to reconcile. He told her he was going to take pills and kill himself. Plaintiff called 911 and the police took Park from his residence to Greenwich Hospital's Emergency Room. The hospital record states that Park ingested Ambien and Xanax tablets "in the context of a divorce." Park never lost consciousness and was treated with activated charcoal. On April 22, while still at Greenwich Hospital, Park had a consultation with Dr. Charles Gardner, a psychiatrist. Park denied "active suicidal ideation" and claimed to be "overwhelmed." He refused hospitalization, telling Dr. Gardner that he had a therapist. Dr. Gardner's impression was "adjustment disorder with depressed mood" and Park was discharged with instructions to follow up with Dr. Gardner within seven days. Park also agreed to follow up with therapy. Arrangements were made to have Park's parents and sister stay with him.

On April 25, Park again saw Dr. Kovachevich as previously scheduled. Although Park reported that he had gone to the emergency room with thoughts of suicide and was released the next morning, he did not mention the suicide attempt. He told Dr. Kovachevich that he felt better, that his father was staying with him and that he was working. Dr. Kovachevich testified that Park's presentation on this date was "markedly improved" from his prior visit.

On May 1, after repeatedly attempting reconciliation with plaintiff, Park ingested several tablets of Ambien, Xanax and Tylenol PM. His father found him unconscious and took him to Greenwich Hospital, where he was admitted, unresponsive and in respiratory arrest. He was intubated, placed on a ventilator and stabilized. He remained at Greenwich Hospital from May 1 through May 4, when he was transferred to defendant Payne Whitney Clinic pursuant to an involuntary inpatient psychiatric commitment. Park's discharge diagnosis from Greenwich was suicidal ideation with a history of depression.

At Payne Whitney, Park was treated by a team of no less than seven psychiatrists, social workers and nurses who met daily to discuss his progress. Park was initially assessed by a licensed clinical social worker, which assessment was reviewed by an attending psychiatrist, defendant Dr. Shamoian. His Axis I Diagnosis was "Depressive Disorder NOS (not otherwise specified)" and Axis II Diagnosis was to "rule out narcissistic personality disorder."

On May 5, Park was seen by defendant Dr. Klahr, who testified that he believed Park when he stated his April 21 suicide attempt was a "gesture, " an attempt to get plaintiff's attention. The May 1 incident, however, was considered a serious suicide attempt. Dr. Klahr noted that Park was remorseful about that attempt and denied any suicidal ideation. He was seen the same day by another team social worker who discussed his marital difficulties and documented Park's contention that he resolved to let his wife go and focus on his three daughters.

The team's treatment goal was to have Park free of suicidal ideation and maintain impulse control for three consecutive days. To attain these goals, Park would be closely monitored, attend therapy sessions and participate in the planning process to ...

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