TIMOTHY W. GALLAGHER et al., Individually and as Administrators of the Estate of JACK O'BANNON GALLAGHER, Deceased, Appellants,
CAYUGA MEDICAL CENTER et al., Respondents.
Calendar Date: April 27, 2017
& Thaler, PC, Ithaca (Thomas D. Cramer of counsel), for
Gouldin & Thompson, LLP, Vestal (Justin L. Salkin of
counsel), for Cayuga Medical Center, respondent.
& Ingraham, Binghamton (Mary E. Saitta of counsel), for
Auguste L. Duplan, respondent.
Connors, LLP, Buffalo (Christina L. Saccocio of counsel), for
Cayuga Emergency Physicians LLP and others, respondents.
Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Rumsey, J.), entered June
27, 2016 in Tompkins County, which granted defendants'
motions for summary judgment dismissing the complaint.
action arises out of the tragic suicide of Jack O'Bannon
Gallagher (hereinafter decedent), a 17-year-old high school
student, on February 6, 2012. Defendant Auguste L. Duplan, a
child adolescent psychiatrist employed by defendant Cayuga
Medical Center (hereinafter CMC), first treated decedent in
July 2011. At that time, decedent was admitted to CMC
complaining of "extreme mood swings, self-injury, cuts
and burns to [his] arms [and] suicidal ideation."
Decedent reported to Duplan that he had made a suicide
attempt a month prior to his admission by an Albuterol
overdose. Diagnosed with "substance induced mood
disorder, " decedent was treated and discharged five
days later and prescribed an antidepressant.
February 6, 2012, at approximately 1:00 p.m., decedent was
transported by ambulance from his high school to CMC's
emergency room after a school nurse had indicated that
decedent was hyper and then lethargic, had elevated blood
pressure and may have abused a substance. Plaintiffs,
decedent's parents, arrived shortly thereafter. Defendant
Christopher R. Scianna, the attending emergency room
physician, attended to decedent until his shift ended and he
subsequently "signed out" decedent at 4:00 p.m. to
defendant Drew Koch, another emergency room physician
employed by defendant Cayuga Emergency Physicians LLP.
Scianna ordered a drug screen and a mental health evaluation
of decedent, and the drug screen tested positive for the
presence of barbiturates. The mental health evaluation was
performed by Meghan Beeby, a registered nurse from CMC's
behavioral health unit, in consultation with Duplan, the
using the information obtained from the mental health
evaluation, collateral sources and other medical records, but
without personally meeting with decedent, Duplan concluded
that decedent was safe to be discharged from CMC's
emergency department to return to his home with his parents.
Beeby reviewed the evaluation and recommendation with Koch,
who discharged decedent from CMC at 7:04 p.m. with a
diagnosis of "substance abuse." Decedent's
father signed the discharge instructions, which indicated
that decedent should call 911 or return to the emergency room
if he felt suicidal or homicidal, and instructed that it was
essential that decedent follow up with substance abuse
treatment recommendations. A short time after arriving home,
decedent committed suicide by shooting himself in the head.
commenced this action against defendants asserting causes of
action for medical malpractice, negligence, wrongful death
and emotional distress. The gravamen of the complaint is that
the decision to discharge decedent from CMC on February 6,
2012 was not grounded upon a proper mental health evaluation.
Following joinder of issue and discovery, all defendants
moved for summary judgment dismissing the complaint. Supreme
Court granted the motions, and plaintiffs appeal.
a medical malpractice action, the plaintiff must show that
the defendant 'deviated from acceptable medical practice,
and that such deviation was a proximate cause of the
plaintiff's injury'" (Mazella v Beals,
27 N.Y.3d 694, 705 , quoting James v Wormuth,
21 N.Y.3d 540, 545 ). It is well settled that a
physician "may not be held liable for a mere error in
professional judgment" (Ballek v
Aldana-Bernier, 100 A.D.3d 811, 813  [internal
quotation marks and citation omitted]; see Nestorowich v
Ricotta, 97 N.Y.2d 393, 398-399 ; Paradies v
Benedictine Hosp., 77 A.D.2d 757, 759 , lvs
dismissed 51 N.Y.2d 710, 1006, 1010 ). This rule
is particularly relevant to cases involving mental health
treatment, given that psychiatry is not an exact science and,
therefore, decisions related to mental health treatment and
discharge often involve a measure of calculated risk (see
Schrempf v State of New York, 66 N.Y.2d 289, 295-296
; Taig v State of New York, 19 A.D.2d 182, 183
). Thus, "'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'" (Ballek v
Aldana-Bernier, 100 A.D.3d at 813, quoting Ozugowski
v City of New York, 90 A.D.3d 875, 876 ; see
Schrempf v State of New York, 66 N.Y.2d at 295-296;
Tkacheff v Roberts, 147 A.D.3d 1271, 1272 ;
Park v Kovachevich, 116 A.D.3d 182, 190-191 ,
lv denied 23 N.Y.3d 906');">23 N.Y.3d 906 ).
as the proponents of the respective summary judgment motions,
"bore the initial burden of establishing that they did
not depart from acceptable standards of care or that any such
departure did not cause the injury" (Longtemps v
Oliva, 110 A.D.3d 1316, 1317 ; see Johnson v
Nassau Univ. Med. Ctr., 140 A.D.3d 704, 706 ). In
support of their respective motions, Duplan and CMC
submitted, among other things, the deposition testimony of
Duplan and Beeby, decedent's medical records and the
sworn expert opinions of psychiatrists Peter Martin and Ralph
Carotenuto. The medical records and deposition testimony
indicated that, before decedent was discharged, Duplan
considered the 2011 medical record of decedent's prior
admission under his care in CMC's adolescent psychiatry
unit and required Beeby to contact and solicit the opinion of
Lauren Franklin, the outpatient therapist with whom decedent
was then treating. Duplan also reviewed and considered ...