Every so often you see a case, or one is presented to you if you represent the plaintiff’s side, where a surviving family member wants to bring a medical malpractice action. And the injury was a suicide.

Those are, to be sure, tough cases on three different levels. First, no matter what happens your client (the surviving family member) will never, ever be happy. No matter what. Second, juries are naturally sympathetic to the medical profession for these cases, and may be loathe to place even partial blame on a doctor, regardless of the treatment (or non-treatment) that took place. And third, the doctor will always raise the defense of professional judgment regarding the treatment.

It is that third point that appeared last week in Thomas v. Reddy, decided by the Appellate Division Second Department. The battle lines were clearly drawn, with the plaintiff claiming a departure from accepted medical practice, and the defendant saying that, if he did anything wrong, it was a mere error of judgment* for which a malpractice case must fail.

The defendant elected to move for summary judgment, a generally rare motion in these cases since issues of fact that need a jury are often plentiful. This was the sad fact pattern:

The plaintiff’s decedent checked into the defendant South Nassau Communities Hospital (hereinafter the hospital) on November 6, 2006, seeking treatment for “manic depression.” The decedent was pregnant at that time, and had a history of suicide attempts, psychiatric hospitalizations, and treatment for bipolar disorder. The hospital treated the decedent several times over the course of the following months in its outpatient program. On February 28, 2007, the decedent told her obstetrician/gynecologist that she hoped that her fetus would not have a heartbeat during a sonogram, and that she would use her husband’s gun to kill herself if she could find it. She was referred to the hospital’s inpatient unit that day.

So what did Dr. Reddy (allegedly ) do wrong? The Court continued:

The defendant Dr. Stanley Reddy took over the decedent’s treatment on March 12, 2007, when the physician who had been treating the decedent during her admission went on vacation. At his deposition, Dr. Reddy admitted that he had never seen the decedent’s outpatient records. [*2]Further, Dr. Reddy testified that he had never seen a progress note, dated March 11, 2007, stating that the decedent was having “altered thought toward [her b]aby,” and that her plan of care had not been met, and that no one had told him that the plan of care was not being met. Dr. Reddy discharged the decedent on the afternoon of March 14, 2007. Later that night, the decedent killed herself by suffocating herself with a plastic bag.

And this set up the classic fight in any malpractice case: Was it a departure from care to discharge the patient or was it a judgment decision for which he is immune from suit?* In making a motion for summary judgment, the defendant:

…established, prima facie, their entitlement to judgment as a matter of law by submitting the affidavit of an expert psychiatrist, who concluded that the appellants did not depart from good and accepted medical practice in making the decision to discharge the decedent.

And the  plaintiff, unsurprisingly, had an expert to say the opposite:

…in opposition, the plaintiffs submitted an affidavit from an expert who opined, inter alia, that the appellants had departed from accepted standards of psychiatric care by making an incomplete and superficial assessment of the decedent’s mental condition prior to discharge. Through this affidavit, and Dr. Reddy’s deposition testimony, the plaintiff raised a triable issue of fact as to whether the appellants exercised something less than professional judgment in deciding to discharge the decedent

The Court did the analysis (citations omitted), which led to the obvious conclusion:

A psychiatrist may not be held liable for a mere error in professional judgment. However, a psychiatrist may be held liable where a treatment decision was based on ” something less than a professional medical determination’.” “A decision that is without proper medical foundation, that is, one which is not the product of a careful examination, is not to be legally insulated as a professional medical judgment.”

With those facts, there seem to be two readily apparent points to make: First, while the case is undeniably sad, from a lawyer’s perspective it is a good model to teach with as it sharply delineates the principle way that malpractice cases are tried and defended. And second, don’t bring appeals of summary judgment decisions when you have a sharp issue of fact for a jury to decide.

(Hat tip: MondayMonday by Jay Breakstone)

Addendum (8/4/11):  This is a good spot to also set forth the law, as it is read to the jury. What follows comes from New York’s Pattern Jury Instructions on the law of medical malpractice. I put in bold the part about errors of judgment being a defense to the accusation that s/he departed from the standard of care.

PJI 2:150 Malpractice—Physician

[Claimant] attempted suicide by hiding in a bathroom and cutting himself with plastic knives he had obtained from the facility’s dining room. Claimant contends that Rockland’s failure to follow its own policy and procedure, which required that all utensils be accounted for in the facility’s dining room, enabled him to obtain the knives he used to attempt suicide. He also maintains that Rockland did not provide him with sufficient psychiatric care while his treating psychiatrist, Dr. Abkari, was on vacation, and that Rockland failed to recognize and treat claimant’s symptoms which indicated that his mental state was deteriorating.