Conclusory and Unsupported Affidavit from Plaintiff’s Expert Did Not Raise a Question of Fact/Standard of Care for Doctors and Mental Health Professionals In the Context of a Patient’s Post-Treatment Suicide Described

The First Department, in a full-fledged opinion by Justice Sweeny, reversed Supreme Court and granted the defendants’ motion for summary judgment dismissing the action.  The complaint alleged that plaintiff’s husband’s suicide was the result of negligence on the part of the treating doctors, psychiatrists and other health professionals.  The court noted that in most instances the affidavit from an expert asserting a deviation from the appropriate standard of care will be sufficient to defeat summary judgment.  But here the affidavit from plaintiff’s expert was conclusory and unsupported:

It is well settled that “a doctor is not liable in negligence merely because a treatment, which the doctor as a matter of professional judgment elected to pursue, proves ineffective. . .” … . Liability is imposed “only if the doctor’s treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” … . Although a plaintiff’s expert may have chosen a different course of treatment, “this, without more, represents, at most, a difference of opinion among [medical providers], which is not sufficient to sustain a prima facie case of malpractice'” … . In the context of mental health providers, we have held that “[w]hen a psychiatrist chooses a course of treatment, within a range of medically accepted choices for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability” … . Where a psychiatrist fails to predict that a …patient will harm his or herself if released, liability will likewise not attach for a mere error in professional judgment … . While it is true that “the line between medical judgment and deviation from good medical practice is not easy to draw” … , the “prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instance it involves a measure of calculated risk. If liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitations of a vast number of patients would be impeded and frustrated” … . However, if a decision to release a patient was less than a professional medical determination, liability may attach … . A decision will not be insulated by the medical judgment rule if it is not based upon a careful examination … .

Generally, ” the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants'” … . To suffice, the expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” … . However, where “the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment” … . Park v Kovachevich, 2014 NY Slip Op 01679, 1st Dept 5-13-14