'Professional Judgment' Rule Forecloses Liability in Suicide

'Professional Judgment' Rule Forecloses Liability in Suicide Wiki/Julia Sorenson The New York Presbyterian Hospital and Weill Cornell campus in Manhattan, where the decedent stayed in the Payne Whitney Clinic before his suicide.

Doctors who treated a man who committed suicide after he was twice released from hospitals following earlier failed suicide attempts cannot be liable for his death, a unanimous state appeals panel has ruled, citing the professional medical judgment doctrine.

The Appellate Division, First Department, panel’s decision in Park v. Kovachevich, 104987/08, handed down Thursday, reversed a decision by Manhattan Supreme Court Justice Alice Schlesinger (See Profile), who had allowed a medical malpractice suit by the man’s wife, from whom he had recently separated, to go forward.

Justice John Sweeny (See Profile) wrote the opinion, joined by Justices Richard Andrias (See Profile), Helen Freedman (See Profile), Rosalyn Richter (See Profile) and Darcel Clark (See Profile).

The decedent, Cooper Park, committed suicide on May 21, 2006. The suit centered on the events during the month leading up to the suicide.

On April 20, 2006, Park called his primary care physician, Thomas Kovachevich. He told Kovachevich that he was separating from his wife, Maria Park, and said he needed “something because his nerves were shot.” Kovachevich called in a prescription for Xanax, an anti-anxiety drug, and told Park to come see him the next day.

Park came in the next day and told Kovachevich that he was depressed, anxious and unable to sleep. He said that suicide had crossed his mind, but that he would never do it because he had three children. Kovachevich prescribed Lexapro, an antidepressant, and Ambien, a sedative, in addition to the Xanax and told Park to go to an emergency room if he had suicidal thoughts. He scheduled a follow-up appointment for April 25.

That night, Park called his wife and said he was going to take pills and kill himself. His wife called 911, and police took Park to the emergency room at Greenwich Hospital in Connecticut. Hospital records show that Park had tried to overdose on Xanax and Ambien. He was treated and held overnight. The next day, he told a psychiatrist at the hospital that he had been “overwhelmed” but denied having “active suicide ideation,” according to the First Department’s decision. He refused continued hospitalization. The psychiatrist discharged him with instructions to follow up in seven days and to go to therapy. Park’s parents and sister began staying with him after he was discharged.

At his follow-up visit with Kovachevich on April 25, Park told the doctor that he had gone to the hospital with suicidal thoughts but did not tell him that he had actually tried to commit suicide, according to the decision. He said he was feeling better. Kovachevich testified that Park appeared “markedly improved” during this visit.

On May 1, however, Park again attempted suicide, taking Xanax, Ambien and Tylenol PM. His father found him unconscious and again took him to Greenwich Hospital, where he was treated for respiratory arrest and held for three days.

On May 4, he was sent to the Payne Whitney Clinic, an involuntary inpatient psychiatric treatment center in Manhattan affiliated with New York-Presbyterian Hospital, where he was treated by a team of seven psychiatrists, social workers and nurses. While there, Park repeatedly expressed remorse for his suicide attempt and said he would not attempt it again. He agreed to a treatment plan including ongoing psychotherapy, and his father agreed to stay with him as long as necessary for his recovery.

On May 10, Park was discharged from the clinic. On May 15, he returned to work, and on May 20, his father returned to Australia, where he lived. That night, Park went to his wife’s apartment and got into a fight with her boyfriend, which ended with a call to the police.

The next morning, Park was found dead in his car, with the engine running and a tube leading from the exhaust pipe into the driver’s side window. In addition to carbon monoxide poisoning, Park’s autopsy revealed that he had taken drugs including Lexapro and Benadryl. Only the Benadryl was near a toxic level.

Park’s wife sued Kovachevich, the Payne Whitney Clinic and one of the doctors there, David Klahr. She alleged that the Payne Whitney Clinic failed to properly diagnose Park and discharged him prematurely, and that the Lexapro prescription contributed to his suicide.

The defendants moved for summary judgment, presenting testimony from a psychiatric expert that none of the doctors had departed from an acceptable standard of care. Kovachevich also presented expert testimony that he had prescribed Lexapro responsibly, and could not be responsible for Park’s decision to mix it with a near toxic dose of Benadryl, an over-the-counter drug.

Maria Park offered expert testimony that the doctors who treated Park failed to diagnose his narcissistic personality disorder, and that the treatment plan they devised was not appropriate for his condition.

Schlesinger denied the summary judgment motions, and the defendants appealed.

Sweeny, reversing, said that the plaintiff’s expert failed to rebut the defendants’ experts’ testimony that they adhered to an acceptable standard of care.

“Although plaintiff contends that they failed to perform a proper assessment of Park prior to discharge, her expert does not elaborate on how their evaluation, conducted by at least seven health care professionals in several different disciplines, was deficient or what steps they should have taken to bring it within acceptable medical standards,” Sweeny wrote.

He quoted the First Department’s 2007 decision in Durney v. Terk, 42 AD3d 335, which held that when “a psychiatrist chooses a course of treatment, within a range of medically accepted choices for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability.”

The Payne Whitney Clinic and its doctor are represented by Peter Crean and Barbara Goldberg, partners at Martin Clearwater & Bell, and Geri Horenstein, an associate at the firm.

“We think it’s a correct application of the law,” Crean said. “We appreciate that the Appellate Division recognized the proper medical judgment of the physicians and staff at the Payne Whitney Clinic.”

Kovachevich is represented by Barry Viuker, a partner at Morris Duffy Alonso & Faley, and Iryna Krauchanka, an associate at the firm.

“I believe the Appellate Division has made the right decision in reversing,” Krauchanka said.

“The Appellate Division decision is simply wrong,” Robert Vilensky of Ronemus & Vilensky, an attorney for the plaintiff, said. “The court ignored facts in the record and did not analyze the case as Justice Schlesinger did in her original excellently written decision. We intend to make a motion in the Court of Appeals.”

Park was represented on the appeal by Lisa Comeau, a solo attorney, who could not be reached for comment.