         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1208
CA 11-00509
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.


NANCY S. WULBRECHT, AS ADMINISTRATRIX
OF THE ESTATE OF ROBERT M. WULBRECHT,
DECEASED, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DIETRICH V. JEHLE, M.D., ET AL., DEFENDANTS,
VICTORIA BROOKS, M.D. AND HONG YU, M.D.,
DEFENDANTS-APPELLANTS.


RICOTTA & VISCO, ATTORNEYS & COUNSELORS AT LAW, BUFFALO (K. JOHN BLAND
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

BROWN CHIARI LLP, LANCASTER (MICHAEL R. DRUMM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered July 13, 2010 in a medical malpractice and
wrongful death action. The order, among other things, denied the
motion of defendants Victoria Brooks, M.D. and Hong Yu, M.D. for
summary judgment.

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

     Memorandum: Plaintiff, as administratrix of the estate of her
husband, commenced this medical malpractice and wrongful death action
seeking damages for the death of her husband, a psychiatric patient
who committed suicide. Defendants-appellants (hereafter, defendants)
appeal from an order denying their motion for summary judgment
dismissing the complaint and all cross claims against them.

     We note at the outset that defendants contend that their motion
should have been granted based on the theory that liability cannot
attach to the exercise of professional medical judgment by a
psychiatrist provided that the psychiatrist performed a competent
examination and evaluation of the patient. Defendants are correct
that, generally, “[t]he prevailing standard of care governing the
conduct of medical professionals . . . demands that a doctor exercise
‘that reasonable degree of learning and skill that is ordinarily
possessed by physicians and surgeons in the locality where [the
doctor] practices’ ” (Nestorowich v Ricotta, 97 NY2d 393, 398, quoting
Pike v Honsinger, 155 NY 201, 209). They further correctly contend
that “ ‘[a] doctor is not liable for an error in judgment if [the
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                                                         CA 11-00509

doctor] does what (he, she) decides is best after careful evaluation
if it is a judgment that a reasonably prudent doctor could have made
under the circumstances’ ” (id. at 399). However, the “error in
judgment” rule is applicable “ ‘only in a narrow category of medical
malpractice cases in which there is evidence that [the] defendant
physician considered and chose among several medically acceptable
treatment alternatives’ ” (Rospierski v Haar, 59 AD3d 1048, 1049; see
Nestorowich, 97 NY2d at 399-400; Anderson v House of Good Samaritan
Hosp., 44 AD3d 135, 139-141). “Where no such choice has been made, ‘a
doctor may be liable 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’ ” (Anderson, 44 AD3d at 140, quoting
Nestorowich, 97 NY2d at 399).

     Here, plaintiff did not allege that defendants “failed to use
[their] best judgment” but, rather, “plaintiff’s theory was that
[defendants] failed to adhere to accepted medical standards” in
diagnosing and treating the lethality of plaintiff’s husband
(Anderson, 44 AD3d at 140; see Rospierski, 59 AD3d at 1049).
Likewise, defendants did not testify at their depositions that they
“made a choice between or among medically acceptable alternatives”
(Anderson, 44 AD3d at 140; see Rospierski, 59 AD3d at 1049; cf. Topel
v Long Is. Jewish Med. Ctr., 55 NY2d 682, 684). Moreover, the expert
for defendants simply opined in a supporting affidavit that their
assessment of the lethality of plaintiff’s husband was “correct” and
did not opine that defendants acted as reasonably prudent
psychiatrists in choosing among acceptable alternatives for treating
him (see Rospierski, 59 AD3d at 1049; Anderson, 44 AD3d at 140).

     Contrary to defendants’ alternative contention, the court
properly denied their motion inasmuch as they failed to meet their
“initial burden of establishing the absence of any departure from good
and accepted medical practice or that the plaintiff[’s husband] was
not injured thereby” (James v Wormuth, 74 AD3d 1895 [internal
quotation marks omitted]; see Winegrad v New York Univ. Med. Ctr., 64
NY2d 851, 853; see generally Zuckerman v City of New York, 49 NY2d
557, 562). The medical expert’s affidavit submitted by defendants in
support of their motion was not “detailed, specific and factual in
nature and . . . [merely] assert[ed] in simple conclusory form that
[defendants] acted within the accepted standards of medical care”
(Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755; see generally
Amodio v Wolpert, 52 AD3d 1078, 1079-1080). Moreover, the expert
“ ‘fail[ed] to address each of the specific factual claims of
negligence raised in [the] plaintiff’s bill of particulars’ ” and,
thus, the expert’s affidavit “is insufficient to support a motion for
summary judgment as a matter of law” (James, 74 AD3d 1895).
“Consequently, defendants’ motion [was properly] denied, regardless of
the sufficiency of plaintiff’s opposing papers” (id.; see Winegrad, 64
NY2d at 853).


Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
