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.
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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]).
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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]).
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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.
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ORDERED that the order is reversed, on the law, with costs,

and motions denied. 

ENTER:

Robert D. Mayberger

Clerk of the Court