                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   523137
________________________________

CATA TKACHEFF et al.,
   Individually and as
   Administrators of the
   Estate of ANGELA T.
   SQUADERE, Deceased,
                    Appellants,             MEMORANDUM AND ORDER
      v

APRIL L. ROBERTS et al.,
                    Respondents.
________________________________


Calendar Date:   January 12, 2017

Before:   Peters, P.J., Egan Jr., Rose, Devine and Aarons, JJ.

                             __________


      Lemire, Johnson & Higgins, LLC, Malta (Timothy J. Higgins
of counsel), for appellants.

      Stewart Bernstiel Rebar Smith, New York City (Cathleen
Kelly Rebar of counsel), for April L. Roberts, respondent.

      Law Office of Hanlon & Veloce, Latham (Christine Hanlon of
counsel), for Susan Decker, respondent.

      Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Daisy
Ford Paglia of counsel), for Saratoga Hospital, respondent.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (R. Sise, J.),
entered December 17, 2015 in Schenectady County, which granted
defendants' motions for summary judgment dismissing the
complaint.
                               -2-                523137

      Angela T. Squadere (hereinafter decedent) complained of
anxiety and depression in late July 2011, the end result of which
was her admission to an inpatient treatment facility where she
remained until August 1, 2011. Decedent moved in with her sister
upon her discharge and, on August 16, 2011, was admitted to
defendant Saratoga Hospital (hereinafter the hospital) due to
major depression with suicidial ideation. She was discharged by
one of the attending physicians, defendant April L. Roberts, on
August 22, 2011. Roberts instructed decedent to return to the
hospital if her depression worsened and, if it did not, to take
two prescription medications and follow up with an outpatient
provider. The outpatient provider was defendant Susan Decker, a
psychiatric nurse practitioner. Decedent met Decker on August
26, 2011, at which time decedent promised to send Decker
information regarding an inpatient facility to which she might
seek admission. Decedent died by her own hand days later.

      Plaintiffs are decedent's parents and they commenced this
action, individually and as administrators of her estate,
asserting claims that included ones for medical malpractice and
wrongful death.1 Following joinder of issue and discovery,
defendants separately moved for summary judgment dismissing the
complaint. Supreme Court granted the motions, and plaintiffs now
appeal.

      We reverse. "To meet the initial burden on a summary
judgment motion in a medical malpractice action, defendants must
present factual proof, generally consisting of affidavits,
deposition testimony and medical records, to rebut the claim of
malpractice by establishing that they complied with the accepted
standard of care or did not cause any injury to the patient"
(Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d
1283, 1285 [2014] [citation omitted]; see Rivera v Albany Med.
Ctr. Hosp., 119 AD3d 1135, 1137 [2014]). Of particular relevance
in this case, which involves the vagaries of psychiatric
diagnosis and treatment, is the rule that "[l]iability may not be
imposed 'for honest errors in medical judgment' but 'can and


     1
        Plaintiffs discontinued the action against all defendants
except the hospital, Decker and Roberts.
                              -3-                523137

should ensue if that judgment was not based upon intelligent
reasoning or upon adequate examination so that there has been a
failure to exercise any professional judgment'" (O'Sullivan v
Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med.
Ctr., 217 AD2d 98, 103 [1995], quoting Snow v State of New York,
98 AD2d 442, 447 [1983], affd for reasons stated below 64 NY2d
745 [1984]; see Ballek v Aldana-Bernier, 100 AD3d 811, 813-814
[2012]; Winters v New York City Health & Hosps. Corp., 223 AD2d
405, 405 [1996]).

      Decker and Roberts met that burden with factually specific
expert opinions, offered in affidavits from a psychiatrist and
nurse practitioner on behalf of Decker and the affirmation of a
psychiatrist on behalf of Roberts, that neither provider departed
from the accepted standard of care in their treatment of
decedent.2 It follows that the hospital, to the extent that its
liability was premised upon Roberts' conduct, met its initial
burden.3 Plaintiffs' claims against the hospital also implicated
the conduct of other providers, however, and the hospital
provided no proof with regard to those providers. As such, the
hospital did not meet its initial burden insofar as
the claims against it related to the conduct of hospital
employees or contractors other than Roberts (see Pullman v
Silverman, 28 NY3d 1060, 1062-1063 [2016]; Randall v Kingston
Hosp., 135 AD3d 1100, 1103 [2016]). The burden accordingly


    2
        Roberts also suggested that any failure on her part was
not the proximate cause of decedent's suicide, but that
suggestion is based upon conclusory assertions of her expert
psychiatrist that did not satisfy her initial burden of proof on
the question (see Ballek v Aldana-Bernier, 100 AD3d at 813-814).
    3
        The hospital's motion for summary judgment was untimely,
but was founded upon the proof and arguments set forth by Roberts
in her timely and then-pending motion. The hospital accordingly
sought nearly indistinguishable relief to that requested in
Roberts' motion, and its motion was properly considered (see
Reutzel v Hunter Yes, Inc., 135 AD3d 1123, 1124 [2016]; Homeland
Ins. Co. of N.Y. v National Grange Mut. Ins. Co., 84 AD3d 737,
738-739 [2011]).
                              -4-                523137

shifted to plaintiffs to show the existence of material questions
of fact as to whether the actions of Roberts and Decker departed
from the accepted standard of care and, considering the record in
a light most favorable to plaintiffs as the nonmoving parties
(see Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d
at 1286-1287), we find that they have done so.

      Dealing first with Roberts, she authored a discharge
summary reflecting that decedent's discharge of August 22, 2011
had been deferred from three days earlier because of the lack of
available outpatient treatment. Decedent had previously
expressed suicidal thoughts and, after learning of the delay,
stabbed herself with three separate objects in what she claimed
was an effort to sever her femoral artery. There is some
question as to whether decedent truly harbored suicidal intent in
that incident but, in any case, she demanded discharge three days
later, denying that she had any present suicidal ideation and
claiming that "the hospital setting was contributing to her
depression and her irritability." Roberts stated at her
deposition that she conducted a suicide risk assessment and
documented the results of that assessment in the discharge
summary. The discharge summary did not state that the assessment
had occurred or detail its findings, however, and set forth a
care plan that amounted to little beyond directing that decedent
take her medication and present herself to an outpatient care
provider over a week later on September 1, 2011. Plaintiffs
submitted the factually specific affidavit of a psychiatrist who,
relying upon the foregoing, opined that Roberts deviated from the
minimum standard of care in failing to document a proper suicide
risk assessment and then discharging decedent without ensuring
that she obtain psychotherapy and medication management within
two days (compare Howard v Stanger, 122 AD3d 1121, 1125 [2014],
lv dismissed 24 NY3d 1210 [2015], with Paradies v Benedictine
Hosp., 77 AD2d 757, 759 [1980], lvs dismissed 51 NY2d 710, 1006,
1010 [1980]). Plaintiffs therefore demonstrated material
questions of fact as to the liability of Roberts and, in turn,
the hospital that precluded an award of summary judgment to them
(see Gallen v County of Rockland, 137 AD3d 969, 970-971 [2016];
Thomas v Reddy, 86 AD3d 602, 604 [2011]).
                              -5-                523137

      Turning to Decker, decedent successfully lobbied to have
her appointment moved up to August 26, 2011 from September 1,
2011. Decker conducted a psychiatric assessment of decedent at
that time, finding her to be sad and anxious. Decker denied
during her deposition that decedent was suicidal, but her written
assessment stated that suicidal ideation was "present" and that
decedent had planned to overdose in the past and was still
cutting herself. Decker went on to diagnose decedent with severe
major depressive disorder – depression that was untreated
inasmuch as decedent's prescribed antidepressant had been
discontinued at the hospital – and noted that decedent's suicidal
thoughts increased in tandem with her diagnosed panic disorder.
Decker nevertheless set forth a plan that placed further
psychotherapy and medication review on hold until decedent
decided whether to check herself into an inpatient treatment
facility and provided more information about the facility to
Decker. Plaintiffs' expert psychiatrist opined that Decker fell
short of the minimum standard of care by failing to properly
conduct and document a suicide risk assessment of decedent, who
was experiencing triggering anxiety and untreated depression.
The psychiatrist further opined that Decker departed from the
minimum standard of care in placing medication adjustment and
psychotherapy on hold in the expectation that a "severely
compromised" person would provide more information on an
inpatient treatment facility that she was curious about. In
light of the psychiatrist's detailed opinion that Decker set
forth a contingent treatment plan that "was itself a deviation
from accepted medical standards" so as to deny decedent "the
level of care acceptable within the relevant professional
community," questions of fact also exist as to the liability of
Decker that defeat her motion for summary judgment (Bernard v
Block, 176 AD2d 843, 846 [1991]; see Gallen v County of Rockland,
137 AD3d at 970-971). Thus, defendants' motions for summary
judgment should have been denied in their entirety.

     Peters, P.J., Egan Jr., Rose and Aarons, JJ., concur.
                              -6-                  523137

      ORDERED that the order is reversed, on the law, with costs,
and motions denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
