Vera v. Beth Israel Medical Hospital

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered June 30, 1994, in favor of the plaintiffs on their causes of action alleging psychiatric malpractice, reversed, on the law and the facts, without costs, and the complaint dismissed. Plaintiff Josephine Vera, a chronic schizophrenic was admitted to the Beth Israel Medical Hospital (Beth Israel) on June 27, 1984 suffering from an acute exacerbation of her schizophrenia, which included command auditory hallucinations telling her to jump out of a window. The uncontradicted determination by the defendant doctor was that the exacerbation was due, in part, to her failure to take her medication. Plaintiff’s hospital record reflects that appropriate psychotropic medication served to decrease plaintiff’s anxiety about the voices she heard. Plaintiff was treated with increasing amounts of the drug Prolixin until a "therapeutic” dosage was established. This dosage was 70 milligrams per day administered orally twice a day in 35 milligram amounts. Plaintiff’s condition improved such that by the third day of her hospitalization the lethal auditory command hallucinations had subsided. Due to plaintiff’s noncompliance, i.e., her failure to take her medication when not under supervision, it was determined that she should be given Prolixin Decanoate, an injectable form of the medication that is released into the patient’s blood stream over time. Administration of the medication in this form would maintain a desired therapeutic level of the medication in the patient for a period of two to three weeks and would effectively deal with plaintiff’s noncompliance. The oral form of the medication was discontinued and plaintiff given an [385] injection of Prolixin Decanoate approximately 47 hours before she was released into her sister’s custody. Plaintiffs sister arranged for a nursing aide to remain with Ms. Vera while she was at work. Approximately two hours after her release from the hospital, and shortly after her sister left her with the nursing aide, the injured plaintiff jumped from the fifth floor fire escape of her sister’s apartment and sustained massive injuries. The injured plaintiffs testimony at trial was that she heard voices which told her that she should jump. Plaintiffs at trial did not take issue with the treatment rendered to the injured plaintiff while in the hospital. Nor was it contended that the use of Prolixin Decanoate which required plaintiff to return to the hospital emergency room for subsequent injections, constituted a departure from acceptable practice. Plaintiffs’ theory of liability in this case was, in essence, that the injured plaintiff was released prematurely and without an adequate amount of Prolixin Decanoate in her blood, i.e., that injection given was not in a high enough dosage to achieve the desired therapeutic level of Prolixin in her blood at the time of discharge and that the defendants released the injured plaintiff before the Prolixin Decanoate could have had the desired therapeutic effect. "It is a well-established principle of medical jurisprudence that no liability obtains for an erroneous professional medical judgment” (Bell v New York City Health & Hosps. Corp., 90 AD2d 270, 279, citing Pike v Honsinger, 155 NY 201, 210; DuBois v Decker, 130 NY 325, 330). This rule is applicable to psychiatry (supra). Claims for psychiatric malpractice often involve the soundness of a decision to release a patient who had been confined for treatment (supra). Therefore "[f]or liability to ensue, it must be shown that the decision to release a psychiatric patient was ' " 'something less than a professional medical determination’ ” ’ (Davitt v State of New York, 157 AD2d 703; Mohan v Westchester County Med. Ctr., 145 AD2d 474)” (Darren v Safier, 207 AD2d 473, 474). Moreover, in our review of these cases we must be mindful of the fact that the " 'prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instances it involves a measure of calculated risk.’ ” (Bell v New York City Health & Hosps. Corp., supra, at 280, quoting Taig v State of New York, 19 AD2d 182, 183.) The risk is " 'one of the medical and public risks which must be taken on balance, even though it may sometimes result in injury to the patient or others’ ” (supra, at 280). Much of the expert testimony in this case was concerned [386] with determining the exact amount of Prolixin in the injured plaintiffs blood at the time of discharge. However, the experts failed to present consistent testimony concerning their estimations of the injured plaintiffs blood level of Prolixin at the time of her discharge. Moreover, review of the testimony demonstrates that, by and large these hindsight estimates were made without consideration of the fact that Ms. Vera’s medical record showed that she was also suffering from hepatitis, which in uncontradicted testimony, was stated to inhibit her liver function, which would in turn have the effect of increasing the effectiveness of the Prolixin in her blood stream. The only consistent facts presented in all of the testimony concerning the Prolixin Decanoate were that according to the Physicians Desk Reference the onset of action of Prolixin Decanoate, in patients with no Prolixin in their blood stream, generally appears between 24 and 72 hours after injection and that the effects of the drug on psychotic symptoms becomes significant within 48 to 96 hours after injection. Of great significance in this case is the fact that all of the expert witnesses who testified agreed that it was not standard practice, and was in fact not the practice at all, to take daily blood levels from a patient receiving either form of Prolixin. The reason given by all of the medical experts, including plaintiffs’ expert, was that the exact amount of Prolixin in a patient’s blood stream is not important since it is not correlated with clinical response. In fact, one of the experts termed measurement of the exact amount of this medication in a patient to be immaterial. All of the expert medical witnesses testified that the only way to determine if Prolixin is having a desired therapeutic effect is through clinical examination. The experts uniformly described a psychiatric clinical examination as consisting of an evaluation of the patient through an interview and observation of her responses, appearance, general behavior and demeanor. Plaintiffs expert testified on cross-examination as follows: "[question]: * * * when you have your patients on Prolixin do you do daily or weekly blood levels? "[plaintiffs’ expert]: No. "[question]: In fact, no psychiatrist does daily or weekly blood levels, right? "[plaintiffs’ expert]: Not at all. "[question]: And the reason why you don’t do daily or weekly blood levels in people on Depot Prolixin is because [387] what you are interested in is not the exact amount that is in their bloodstream, but what is the therapeutic effect upon the patient correct? "[plaintiffs’ expert]: Exactly. "[question]: And in order to see the therapeutic effect upon the patient, you have to examine the patient and watch the patient and see how they react, correct? "[plaintiffs’ expert]: Exactly. For a period of time.” Therefore, it is clear that the determination concerning whether or not the injured plaintiff received a sufficient amount of the medication to maintain the previously obtained therapeutic level so as to warrant discharge could only be based upon a careful clinical examination. The record reflects that the defendant doctor saw Ms. Vera every day. Nowhere in the record of this case is there any testimony that the defendants failed to conduct a careful examination of this patient before she was discharged. Plaintiffs’ own expert Dr. Tuckman testified as follows: "[question]: Doctor, I am going to ask you some questions and I would ask that each of these questions that you give your opinion with a reasonable degree of medical certainty as we go along, okay? "[dr. tuckman]: Yes. "[question]: As to whether or not Josephine Vera’s discharge from Beth Israel Hospital on July 17 was based upon careful examination of Josephine Vera and her psychiatric conditions, do you have an opinion as to whether or not that was done, just tell me yes or no first? "[dr. tuckman]: Yes. "[question]: What is your opinion? "[dr. Tuckman]: That it was performed with careful examination as far as I saw.” Dr. Tuckman’s testimony immediately following the above exchange in which he stated why he would not have discharged Ms. Vera on July 17, 1984, demonstrated only that given the same set of circumstances, he would have observed her for a longer period before releasing her. In response to the trial court’s question as to whether he considered the administration of a 50 milligram dose to this patient a departure Dr. Tuckman stated that in and of itself the dosage was not a departure. Therefore it cannot be said that plaintiff demonstrated that the decision to release this patient was based upon [388] " ' " 'something less than a professional medical determination’ ” ’ ” (Darren v Safier, 207 AD2d, supra, at 474). Just as in Darren v Safier (supra), Dr. Tuckman’s disagreement as to the time of discharge of Ms. Vera under the circumstances of this case "represents, at most, a difference of opinion among physicians, which is not sufficient to sustain a prima facie case of malpractice” (Darren v Safier, supra, at 474). Thus we find that there was ample reason to grant defendants’ motion to dismiss at the end of the plaintiffs’ case and that it was error not to grant defendants’ motion to dismiss made after both parties rested. The dissent, apparently concerned with a review of the jury’s verdict, misconstrues the grounds on which we would reverse. It is clear that the error upon which we reverse was that of the trial court in submitting the matter to the jury in the first instance. Furthermore, the foregoing makes plain that our determination was based upon the fact that all of the experts, including plaintiffs’ expert, testified that the exact level of Prolixin Decanoate in the patient’s blood was irrelevant, as its therapeutic effect can only be evaluated by clinical examination, and the fact that even plaintiffs’ expert acknowledged that the defendant doctor conducted a "careful examination” of the injured plaintiff before her discharge. Finally, the issue in this case is not whether Dr. Schwartz’s decision on July 15th was a departure, but whether Ms. Vera’s actual discharge 2 days later on July 17th was based upon " ' " 'something less than a professional medical determination.’ ” ’ ” (Supra, at 474.) We have reviewed the other arguments raised by the parties and find that we need not reach them in view of our determination or that they are otherwise without merit. Concur— Kupferman, J. P., Ross, Asch and Nardelli, JJ.