        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

931
CA 12-01864
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.


JANICE MAZELLA, AS ADMINISTRATRIX OF
THE ESTATE OF JOSEPH MAZELLA, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIAM BEALS, M.D., DEFENDANT,
AND ELISABETH MASHINIC, M.D.,
DEFENDANT-APPELLANT.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (JAMES D. LANTIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DELDUCHETTO & POTTER, SYRACUSE (ERNEST A. DELDUCHETTO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered August 2, 2012. The order denied the
motion of defendant Elisabeth Mashinic, M.D., for summary judgment
dismissing the complaint against her.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this medical malpractice action
seeking damages arising from the death of her husband (decedent), who
committed suicide 16 days after he was released from the psychiatric
ward of Auburn Memorial Hospital (hospital). Elisabeth Mashinic, M.D.
(defendant) is a psychiatrist who treated decedent during his
inpatient stay at the hospital. The complaint, as amplified by the
amended bill of particulars, alleges myriad theories of negligence
against defendant, including claims that she failed to diagnose a
medication-induced akathisia, misdiagnosed decedent as having
psychomotor agitation, and improperly discharged decedent from the
hospital without making arrangements for decedent to be treated by a
psychiatrist upon release. Following discovery, defendant moved for
summary judgment dismissing the complaint against her. Supreme Court
denied the motion, and we now affirm.

     Even assuming, arguendo, that defendant met her initial burden of
establishing entitlement to judgment as a matter of law (see Edwards v
St. Elizabeth Med. Ctr., 72 AD3d 1595, 1596), we conclude that
plaintiff raised material issues of fact sufficient to defeat the
motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
                                 -2-                           931
                                                         CA 12-01864

For instance, plaintiff submitted the affidavit of her unidentified
expert, wherein the expert stated that the proper standard of care
required that decedent, who had been prescribed multiple medications
that had significant side effects, such as suicidal ideation, “be
monitored closely by a psychiatrist from the point of his discharge.”
It is undisputed that defendant approved the discharge without
ensuring that decedent had a psychiatrist who could treat him.
Additionally, defendant acknowledged at her deposition that decedent
required psychiatric care upon discharge, but testified that it was
not her responsibility to arrange for decedent’s post-discharge care
and that this responsibility was “customarily [within] the purview of
the social worker.” Similarly, defendant’s expert stated in his
affidavit that it was within the standard of care to delegate to a
licensed social worker the task of arranging for post-discharge care.
Plaintiff’s expert, however, disagreed, stating that “delegating the
task to a social worker without insuring that the task was completed
is a . . . deviation from the standard of care.” We conclude that the
conflicting opinions of the experts raise an issue of fact for trial
(see Haas v F.F. Thompson Hosp., Inc., 86 AD3d 913, 914; Dandrea v
Hertz, 23 AD3d 332, 333).

     We reject defendant’s contention that the post-discharge
arrangements made for decedent by the social worker were sufficient as
a matter of law. Although the social worker made an appointment for
decedent at the Brownell Center for Behavioral Health, an outpatient
mental health facility, plaintiff’s expert opined that the standard of
care required that psychiatric care be made “immediately available” to
decedent upon discharge. Decedent did not see a psychiatrist (or even
a physician) during his initial appointment at the Brownell Center on
September 3, 2009, which was one week after his release from the
hospital, and he still had not spoken to a psychiatrist by the time he
committed suicide on September 12, 2009.

     Defendant relies heavily on the fact that decedent imposed “self-
limitations” on his post-discharge care. According to defendant,
decedent said that he did not want to engage in talk therapy, he would
treat only with a male physician, and he did not want to be treated in
Syracuse given his status in the community. Even assuming, arguendo,
that those conditions rendered it impossible for defendant to arrange
adequate post-discharge care for decedent, we conclude that there is
an issue of fact whether defendant should have refrained from
approving decedent’s discharge from the hospital until he modified his
self-imposed limitations. In sum, defendant released decedent from
her care without ensuring that he would be treated by a psychiatrist
upon discharge, and an issue of fact exists whether she was negligent
in doing so. The court thus properly denied defendant’s motion for
summary judgment.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
