Balman v. UNITED STATES OF AMERICA

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
KAREN E. BALMAN, as Administrator
of the Estate of Daniel A. Balman,
Plaintiff,
-v- 	5:23-CV-408 (AJB/PJE)
UNITED STATES OF AMERICA,
Defendant.
_____________________________________
Hon. Anthony Brindisi, U.S. District Judge:
DECISION and ORDER
I. 	INTRODUCTION
This medical malpractice action arises out of the tragic death of Daniel A. Balman (“Mr.
Balman” or “decedent”), a husband, father, and veteran who died by suicide during the height of
the nation’s response to the COVID-19 pandemic. At the time of his death, Mr. Balman was being
treated by Katherine Cerio, M.D. (“Dr. Cerio”), a psychiatrist at the Department of Veterans Af-
fairs (“VA”) Medical Center in Syracuse, New York.
On March 31, 2023, plaintiff Karen E. Balman (“Mrs. Balman” or “plaintiff”), as admin-
istrator of her husband’s estate, filed this civil action against defendant United States of America
(“defendant”) pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiff’s one-count complaint
alleges that Dr. Cerio deviated from the applicable standard of care in her treatment of Mr. Bal-
man’s mental health conditions, and in particular his alcohol use disorder, which led to his death
on June 30, 2020, six days after his last mental health appointment at the VA.
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On June 30, 2025, defendant moved for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure.1 Dkt. Nos. 55, 56. The motion has been fully briefed, Dkt. Nos. 65, 66,
71, and will be considered on the basis of the submissions without oral argument.
II. 	BACKGROUND
The facts in this section have been developed from a comparison of the parties’ Local Rule
56.1 statements and a review of the underlying records. Compare Dkt. No. 55-2, with Dkt. No.
65-5; see also Dkt. Nos. 56, 56. Because many of the fact disputes identified by plaintiff involve
the characterization of certain statements or findings recorded in those materials, the following
factual narrative is primarily supported with direct citations to the records in question. Other gen-
uine disputes identified in plaintiff’s responsive filing have also been noted.
Mr. Balman was a U.S. Army Veteran who had also served in the Pennsylvania National
Guard. 	Pl.’s Facts ¶ 268. 	He was married to Mrs. Balman. 	Id. ¶ 269. 	The couple had four
children. Id. Mr. Balman worked in the information technology (“IT”) field. Id. ¶ 270.
In 2012, Mr. Balman’s non-VA primary care physician diagnosed him with anxiety and
depression. Pl.’s Facts ¶ 271. He prescribed him an antidepressant medication called “sertraline.”
Id. ¶ 272. Because sertraline caused Mr. Balman to experience suicidal ideation, he was prescribed
a second antidepressant called “bupropion.” Id. According to plaintiff, Mr. Balman “successfully
engaged in psychotherapy in the community for a while.” 	Id. ¶ 273. 	His provider eventually
referred him to the VA in 2016. Id.
1 Defendant has also moved to strike plaintiff’s damages expert. Dkt. No. 57. Plaintiff has opposed. Dkt. No. 62.
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A. Treatment at the VA
In August of 2016, Mr. Balman began a treatment relationship at the Syracuse VA Medical
Center. Def.’s Facts, Dkt. No. 55-2 ¶ 1; Dkt. No. 66-1 at 890.2 As part of the intake process, Mr.
Balman reported to VA staff that he intended to continue seeing his non-VA primary care provider
and was “mostly enrolling in the VA” for mental health services. Dkt. No. 66-1 at 890.
At his initial visit on August 16, 2016, Mr. Balman met with several providers. Dkt. No.
66-1 at 881–89. A nurse practitioner screened Mr. Balman for homelessness, alcohol use, depres-
sion, and trauma. Id. at 887–89. In response to a standard alcohol use screening test (“AUDIT-
C”), Mr. Balman reported that, over the past year, he drank three or four drinks about two to four
times a month, but never had more than six drinks on any single occasion. Id.
The record indicates that Mr. Balman also met with Iram Siddiqui, M.D. (“Dr. Siddiqui”),
a primary care provider, for an initial evaluation. Dkt. No. 66-1 at 882–84. There, Mr. Balman
reported to Dr. Siddiqui that he had previously had thoughts of taking his life, but was not suicidal
at that time. Id. at 884. Dr. Siddiqui referred Mr. Balman to psychology for a consult. Id. at 883.
Later that morning, Mr. Balman met with a staff psychologist. Dkt. No. 885–87. There,
he reported “a tendency towards aggressive and violent behaviors that exceed the level of the
stressor.” 	Id. at 885. 	Although he reported that he was always a “hothead,” he believed that
“things have gotten out of hand.” Id. Mr. Balman explained that he had undergone prior therapy
with a social worker. Id. at 886. He stated that his non-VA provider had prescribed him sertraline,
which caused him to experience increased suicidal ideation. Id. He further stated that the same
provider had prescribed him bupropion to mitigate that side effect, but that he could not tolerate
the other side effects of bupropion and therefore only took sertraline. Id.
2 Pagination corresponds to CM/ECF headers.
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In progress notes, the psychologist indicated that Mr. Balman reported to her that “he will
sometimes drink 2-3 glasses of whiskey to help facilitate sleep.” Dkt. No. 66-1 at 886. Although
he realized “that this is not a healthy pattern,” Mr. Balman stated that “he has chronic insomnia
and sometimes needs help falling asleep.” Id. The psychologist assessed Mr. Balman a “minimal
risk” for suicide, noting that he had experienced “suicidal fantasies” about two months ago but that
he currently denied any suicidal ideation, intent, or plan. Id. The psychologist referred Mr. Bal-
man to additional providers for outpatient therapy and medication management and scheduled a
follow-up in two weeks. Id. at 887.
On August 30, 2016, Mr. Balman met with the staff psychologist for a brief follow-up.
Dkt. No. 66-1 at 881–82. In progress notes, the psychologist indicated that Mr. Balman denied
any current suicidal ideation, intent, or plan. 	Id. at 881. 	She deemed him a “minimal risk” for
suicide at this time, but planned to re-assess him periodically. Id. The psychologist noted that Mr.
Balman was in the process of scheduling a long-term therapy appointment with a new provider
and had agreed to meet with her periodically in the interim. Id. at 882. She planned to follow-up
with him every two weeks until another provider could take over Mr. Balman’s care. Id.
Thereafter, Mr. Balman had a series of contacts with VA providers. For instance, on Sep-
tember 19, 2016, a psychology intern contacted Mr. Balman to invite him to certain group therapy
opportunities, which he declined because of a scheduling conflict. Dkt. No. 66-1 at 878. Later,
on September 21, 2016, Mr. Balman underwent a diagnostic hearing evaluation. Id. at 876–78.
On September 23, 2016, Mr. Balman met with the staff psychologist for a brief follow-up
appointment. Dkt. No. 66-1 at 871–72. There, he reported “that he had a rough couple of weeks
but was unable to articulate specifics.” Id. at 871. In progress notes, the psychologist indicated
that Mr. Balman denied any current suicidal ideation, intent, or plan. Id. at 871. She deemed him
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a “minimal risk” for suicide at that time. Id. The psychologist advised Mr. Balman that a change
in his medication was warranted because sertraline “is not quite doing the trick.” Id. She noted
that Mr. Balman had his first meeting with a psychiatrist in a month, but scheduled a two-week
follow-up with him because “he would like to do something sooner.” Id. at 870–71. In the mean-
time, the psychologist encouraged Mr. Balman to visit the walk-in clinic if needed. Id. at 872.
Later that day, Mr. Balman met with a psychiatry resident. Dkt. No. 66-1 at 865–70. There,
he reported: “I’ve had a bad couple weeks.” Id. at 866. He further reported that “over the past
week,” he has had a return of “suicidal fantasies,” which he characterized as “recurring, intrusive,
unwanted thoughts of planning and executing a suicide.” Id.
The resident’s notes indicate that Mr. Balman denied any “current active suicidal thoughts,
plans or intent to harm himself,” and that he reported that these “thoughts first occurred back in
April 2016.” Dkt. No. 66-1 at 866. Notably, Mr. Balman also reported “that he has been drinking
alcohol daily [for] the past 2 years.” Id. at 867. Although he indicated that he “knows it is un-
healthy and would prefer not to have to drink every day,” Mr. Balman reported that “it helps with
his anxiety” and “helps him feel almost normal.” Id.
The resident assessed that Mr. Balman would benefit from a trial of an antidepressant med-
ication called “venlafaxine” for his mood and anxiety. Dkt. No. 66-1 at 869. The resident also
prescribed an antihistamine called “hydroxyzine” as needed for sleep and anxiety. Id. at 870. The
resident directed Mr. Balman to discontinue sertraline. Id. The resident noted that Mr. Balman
did not request inpatient psychiatric hospitalization and that there was “no safety concern” at this
time. 	Id. 	The resident assessed outpatient therapy for Mr. Balman’s alcohol use disorder and
scheduled a follow-up in two weeks. Id.
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On October 4, 2016, Mr. Balman returned to the clinic, where he met with a psychiatry
student under the supervision of an attending physician. 	Dkt. No. 66-1 at 861–65. 	There, he
reported that venlafaxine had improved his mood, energy, and concentration but that he was still
having trouble sleeping despite the hydroxyzine. Id. at 862–63. He further reported “drinking 2-
3 shots of whiskey or 2-3 12oz beers per day, 7 days a week, every other week,” but denied “binge
drinking.” Id. at 863.
The psychiatry student’s notes indicate that Mr. Balman denied any current suicidal idea-
tion and reported that his mood was: “Good, I feel like I’m on the rebound.” Dkt. No. 66-1 at 864.
The notes indicate that Mr. Balman was started on a new antidepressant called “trazodone” to help
with his sleep disturbance. Id. at 864–65. These notes further indicate that Mr. Balman was sup-
posed to follow-up in three weeks, but that he was directed to go to the emergency department if
he experienced any suicidal ideation. Id. at 865.
Mr. Balman continued to treat at the VA. For instance, on October 6, 2016, he met with
the staff psychologist. Dkt. No. 66-1 at 860–61. There, he reported that he was feeling “slightly
more anxious” but had not experienced any violent or aggressive outbursts since starting venlafax-
ine. Id. at 861. At this visit, Mr. Balman denied any suicidal ideation, intent, or plan, and was
“deemed a minimal risk for suicide.” 	Id. 	Later, on October 20, 2016, Mr. Balman met with a
psychologist to discuss counseling options. Id. at 857–59. And on November 14, 2016, Mr. Bal-
man met with a new VA psychiatrist to establish care. Id. at 851–55.
Mr. Balman met with VA therapy providers and with his VA psychiatrist on a fairly regular
basis for the next eight months. Dkt. No. 66-1 at 831–50. At a January 20, 2017 visit with his
psychiatrist, Mr. Balman reported that he “has been suffering from persistent poor motivation and
anhedonia as well as some intermittent depressed mood for the last several weeks.” 	Id. at 846.
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The progress notes from this visit indicate that the psychiatrist increased the dosage of venlafaxine
but cautioned Mr. Balman that this medicine posed “significant withdrawal” risks. 	Id. at 848.
Later, at visits in March and April of 2017, Mr. Balman reported that he had increased his dosage
and experienced a mood improvement. Id. at 836, 841.
On July 24, 2017, Mr. Balman visited the VA for a psychiatric outpatient appointment.
Dkt. No. 66-1 at 830. 	There, he reported to the provider that his depressive symptoms had re-
sumed. Id. He also reported “some regular alcohol consumption” since his last appointment. Id.
In progress notes, the provider recorded that Mr. Balman was taking his prescribed medications
but was “not interested in medication to reduce cravings to drink at this time.” Id. As before, a
progress note from this visit documented Mr. Balman’s “alcohol use disorder.” Id. at 832. The
provider assessed Mr. Balman’s suicide risk as “low.” Id. at 831.
Mr. Balman continued to treat at the VA. For example, at a September 11, 2017 visit with
his psychiatrist, Mr. Balman reported that his mood was “stable” on venlafaxine but that he was
“drinking daily” on weeks when he was not “on call” at work. Dkt. No. 66-1 at 823. In response
to another AUDIT-C alcohol use screening test, Mr. Balman reported that, over the past year, he
drank seven to nine drinks four or more times a week, and had more than six drinks on a “weekly”
basis. Id. at 827.
The psychiatrist expressed concern to Mr. Balman about his alcohol use, advised him to
drink within safe limits, and diagnosed him with “alcohol use disorder.” Dkt. No. 66-1. at 826–
28. The psychiatrist noted that Mr. Balman had declined further alcohol use assessment or treat-
ment at that time but the provider planned to bring the topic up again at their next visit. Id. at 826–
28. 	Later, at a November 6, 2017 visit, Mr. Balman reported that he was “limiting his alcohol
significantly” in recent weeks. Id. at 817. At this visit, Mr. Balman “expressed very clearly that
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he does not believe he has a problem related to his alcohol intake and he said that he does not plan
to see his individual therapist any longer because of an apparent emphasis on this potential prob-
lem.” Id. at 819.
In January of 2018, Mrs. Balman telephoned the psychiatrist and told him that Mr. Balman
“has been drinking on a daily basis.” Dkt. No. 66-1 at 814. The psychiatrist later addressed this
topic with Mr. Balman, who denied “drinking every day” but admitted to “drinking regularly and
significantly.” Id. Mr. Balman further reported that venlafaxine provided “a persistent and no-
ticeable improvement in his mood and he said that he would like to continue taking it.” Id. The
psychiatrist’s progress notes indicate that Mr. Balman agreed to a substance use consult but refused
to consider any additional medications “that may reduce his cravings for drinking alcohol.” Id. at
816. According to this record, Mr. Balman denied any suicidal ideation or intent and was advised
to call 911 or go to the nearest emergency room if his symptoms worsened. Id.
On January 30, 2018, Mr. Balman met with Licensed Clinical Social Worker Christy L.
Tubbs (“LCSW Tubbs”) for a chemical dependency consult. 	Dkt. No. 66-1 at 801–10. 	At this
initial visit, Mr. Balman reported that he was “drinking too much to be healthy.” Id. at 802. Mr.
Balman further reported that he experienced suicidal ideation “often,” but denied any specific plan
or intent. Id. at 803. He also explained that he had previously tried treatment with two other social
workers, but believed that those therapeutic relationships were not an appropriate fit for him. Id.
Mr. Balman explained to LCSW Tubbs that he had been abstinent from alcohol until he
was in his forties. Dkt. No. 66-1 at 808. He reported that his drinking “increased in frequency and
intensity several years ago.” Id. Although he denied any blackouts, Mr. Balman acknowledged
that “his wife has complained about the behavior numerous times and he finds it difficult to stop
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after 1-2 drinks or even cut down.” Id. at 808–09. According to LCSW Tubbs’s treatment note,
Mr. Balman’s goal in therapy was to “remain abstinent” from alcohol. Id. at 809.
Mr. Balman continued to treat with LCSW Tubbs and other VA providers. Dkt. No. 66-1
at 768–99. For instance, at a February 15, 2018 visit with LCSW Tubbs, Mr. Balman reported that
he had been abstinent from alcohol for about two weeks and expressed his belief that his “drinking
was causing problems.” Id. at 795–96. Mr. Balman reported continued abstinence from alcohol
at a March 1, 2018 visit with LCSW Tubbs, id. at 792–94, at an April 1, 2018 visit with his psy-
chiatrist, id. at 782–86, and at a May 3, 2018 visit with LCSW Tubbs again, id. at 773.
However, at a May 25, 2018, visit with his psychiatrist, Mr. Balman reported that he had
resumed “drinking alcohol every few days” because, in his view, alcohol “consistently improves
his energy and outlook.” Dkt. No. 66-1 at 768. Mr. Balman further reported that his medication
regimen exerted “a stabilizing impact on his mood” but that he had recently experienced “persis-
tent depressive mood and anhedonia as well as poor energy.” Id. The psychiatrist assessed Mr.
Balman as “stable” but noted that he was not interested in medication “to reduce his cravings to
drink alcohol” at that time. 	Id. at 770. 	Thereafter, Mr. Balman missed his appointments with
LCSW Tubbs and declined to reschedule any future therapy sessions at that time. Id. at 765–67.
On July 11, 2018, Mr. Balman and his wife met with his treating psychiatrist to discuss
“various options” for him to be “admitted to an inpatient psychiatric ward” to safely discontinue
venlafaxine. Dkt. No. 66-1 at 761. Mrs. Balman reported that she believed that venlafaxine was
the primary cause of her husband’s persistent depressive symptoms and was “encouraging” him to
“wean from the medication.” Id.
At this visit, Mr. Balman reported that he “went on a bender” twice in recent weeks, but
Mrs. Balman stated that she believed her husband drinks even “more often than he realizes.” Dkt.
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No. 66-1 at 761. 	Mr. Balman further reported that he had been compliant with his medication
regimen and was able to tolerate his medications without significant side effects. Id. However,
Mr. Balman stated that he would also like to discontinue venlafaxine, but that he needed to do so
in an inpatient setting because any reduction in his dosage triggered worsening depressive symp-
toms and occasional suicidal ideation, albeit without a plan. Id.
In progress notes, the psychiatrist stated that he believed Mr. Balman’s “alcohol consump-
tion is a problem” and noted that he discussed this topic with Mr. Balman at the visit. Dkt. No.
66-1 at 764. The psychiatrist also recorded Mr. Balman’s “alcohol use disorder” but noted that he
“is not interested in stopping drinking at this time” or in being admitted to an inpatient facility for
more intensive treatment. Dkt. No. 66-1 at 763–64. The record of this visit indicated that the plan
was for Mr. Balman to present himself to the VA for voluntary inpatient admission in the next
couple of weeks to safely discontinue venlafaxine. Id. at 764.
On August 15, 2018, Mr. Balman was admitted to the inpatient psychiatric unit to “wean
from venlafaxine.” Dkt. No. 66-1 at 99. There, Mr. Balman reported “intermittent suicidal fanta-
sies” and stated that he “has been overdrinking, although less than he was several months ago.”
Id. At his initial admission and during the hospitalization period, Mr. Balman reported suicidal
thoughts that “come and go” and also “reported feeling intensely suicidal” at times. Id. at 101–02.
During this hospitalization, Mr. Balman also participated in therapy, “expressed a strong intention
to stop drinking,” and trialed some new medications to help reduce his anxiety. Id. at 102.
Ultimately, Mr. Balman successfully discontinued venlafaxine. Dkt. No. 66-1 at 102. In-
stead, after a trial of a benzodiazepine was unsuccessful in preventing his anxiety, Mr. Balman
was re-prescribed trazodone for sleep (on an as-needed basis) as well as a monthly injection of
“naltrexone,” a medication that is used to treat alcohol use disorder. Id. At his discharge on August
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30, 2018, the VA placed Mr. Balman “on the facility’s high risk for suicide list” based on state-
ments he made during his initial admission. Id. at 566.
B. Dr. Cerio
On September 17, 2018, a few weeks after his discharge from the hospital, Mr. Balman
and his wife met with Dr. Cerio, a different VA psychiatrist, for an initial outpatient assessment.
Dkt. No. 66-1 at 503–10. There, Mr. Balman reported “that he has not been doing well” and was
“struggling with ongoing muscle twitches and spasms several times per day, brain shocks several
times per day, recurrent vibratory sensations, dizziness, and describes feeling as though he is
drugged but cognitively alert.” Id. at 503. Mr. Balman reported to Dr. Cerio that he “will die” if
his symptoms did not improve, but he refused to answer her additional questions about his current
level of suicidal ideation, intent or plan. 	Id. at 504. 	Mr. Balman stated that “he has not been
experiencing any [alcohol] cravings since leaving the hospital” and has “been abstinent from al-
cohol.” Id.
Dr. Cerio’s progress notes from this visit indicated that Mr. Balman’s psychiatric history
included major depressive disorder, anxiety disorder, and alcohol use disorder, “currently in early
remission.” Dkt. No. 66-1 at 508. Although Dr. Cerio noted that Mr. Balman reported “marked
symptoms impairing his ability to return to work,” she concluded that there were no “acute safety
concerns and the patient continues to meet criteria for outpatient treatment.” Id. Dr. Cerio noted
that Mr. Balman was reluctant to add any new prescription medications at that time. Id. at 509.
She advised him to continue with therapy appointments that had been established or re-established
as part of his inpatient hospital stay and scheduled a two-week follow-up. Id.
Mr. Balman continued to treat at the VA. For instance, he participated in group therapy on
September 20, 2018, Dkt. No. 66-1 at 492, and met with LCSW Tubbs for a therapy session later
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that month, id. at 484. He returned for group therapy in October, id. at 435, 453, 457, met with
LCSW Tubbs, id. at 408, 435, 450, and treated with Dr. Cerio, id. at 428–33. 	This pattern of
mental health treatment repeated for several months, with some exceptions during the winter hol-
iday season. See, e.g., id. at 313, 315, 322, 331, 335, 345, 347, 364, 369, 379, 381, 386. During
this period of treatment, Mr. Balman reported to multiple providers that he was currently abstinent
from alcohol. See, e.g., id. at 313, 316, 322, 332, 345, 364, 369.
In early 2019, Mr. Balman returned to work full-time. 	By February, he had stopped at-
tending group therapy sessions or meeting with LCSW Tubbs. Dkt. No. 66-1 at 305, 313, 314. A
few months later, on April 29, 2019, Mr. Balman and his wife met with Dr. Cerio. Id. at 296–301.
There, Mr. Balman reported “feeling more depressed since his last appointment” and stated that
he “continues to experience frequent suicidal ideation.” Id. at 296. However, he denied experi-
encing any intent with his current ideation and reported to Dr. Cerio that most of his physical
symptoms had actually improved. Id. at 296–97.
In a progress note, Dr. Cerio recorded that she had ”gently” challenged Mr. Balman’s as-
sertion that he “could not engage more actively in treatment at this time,” pointing out that his
scores had markedly worsened since he disengaged from group and individual therapy. Dkt. No.
66-1 at 297. Dr. Cerio’s progress notes stated that there were “no acute safety concerns” at this
time, but that Mr. Balman and his wife “were encouraged to remember” that hospitalization
“would remain a reasonable course of action” if his “suicidal ideation and intent shift.” Id. at 300.
These notes also observed that Mr. Balman had been referred to a non-VA provider for transcranial
magnetic stimulation (“TMS”), another treatment modality for major depression. See id.
On June 10, 2019, Mr. Balman met with Dr. Cerio for a follow-up appointment. Dkt. No.
66-1 at 291–96. There, Mr. Balman reported “doing worse since his last appointment” and stated
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that he had been “experiencing ongoing suicidal ideation.” 	Id. at 292. 	However, Mr. Balman
reportedly denied any intent or plan to act on his thoughts at that time. 	Id. 	At this visit, Mr.
Balman reported to Dr. Cerio that he had resumed drinking alcohol again. Id.
In progress notes, Dr. Cerio indicated that she had emphasized to Mr. Balman that he had
previously benefited from therapy sessions and reviewed his safety plan. 	Dkt. No. 66-1 at 292.
Dr. Cerio’s assessment from this visit noted that Mr. Balman’s alcohol use disorder was “in partial
remission” and that, after questioning him about his suicidal ideation, she concluded that he did
not meet the criteria for involuntary hospitalization. Id. at 295. Dr. Cerio scheduled a one-month
follow-up. Id. at 296.
On July 9, 2019, Mr. Balman met with Dr. Cerio. 	Dkt. No. 66-1 at 287–91. 	There, he
reported that he continued to struggle with anxiety and depression but denied experiencing any
active suicidal ideation. Id. at 287. Dr. Cerio’s progress notes reflect that she explored Mr. Bal-
man’s level of willingness to re-engage in therapy. Id. She also noted that Mr. Balman was “be-
ginning to consider a medication, even though he expects a harmful effect.” Id. Ultimately, Dr.
Cerio concluded that Mr. Balman was at “intermediate risk” but remained appropriate for outpa-
tient treatment. Id. at 290.
On August 6, 2019, Mr. Balman met with Dr. Cerio. Dkt. No. 66-1 at 282–87. There, he
reported “feeling a little better than at his last visits.” Id. at 282. Although he reported that his
anxiety “remains paralyzing,” Mr. Balman stated that “he no longer experiences the intensity of
suicidal ideation that he was previously experiencing.” Id. In progress notes, Dr. Cerio recorded
that Mr. Balman’s alcohol use disorder was “currently in partial remission” and, although he was
still at “intermediate risk,” he remained appropriate for outpatient treatment. Id. at 286.
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C. Treatment from September 24, 2019 to June 24, 2020
On September 24, 2019, Mr. Balman met with Dr. Cerio. 	Def.’s Facts ¶ 8. 	There, Mr.
Balman reported that “his depression has lifted somewhat and he is better able to tolerate day to
day stress at work and home.” Dkt. No. 66-1 at 272. He also reported that he had finished three
weeks of TMS and was scheduled for his fourth (and final) treatment. Id.
However, Mr. Balman reported that his anxiety had not improved, might have worsened,
and that he had “started to research suicide options.” Dkt. No. 66-1 at 272. Although he reported
that he had identified an option he could use that would not be “messy,” Mr. Balman denied “any
intent to act upon this plan.” Id. Mr. Balman explained that he had decided to discuss possible
medication options to help with his anxiety. Id. Mr. Balman further reported that he continued to
use alcohol: “at times 3-4 drinks,” but stated that “he does not drink much as he does not find this
helpful for his anxiety anyway.” Id.
Dr. Cerio provided Mr. Balman with supportive psychotherapy, “focusing on safety as-
sessment, development of a safety plan, review of supports, normalization of returning to the hos-
pital should he need to go back, [and] validating the progress made with regard to his depression,”
pointing out that Mr. Balman had “laughed in the office for the first time in the past year of working
together.” Dkt. No. 66-1 at 272–73. Dr. Cerio encouraged Mr. Balman to discuss his concerns
with his non-VA TMS provider as well. Id. at 273.
Dr. Cerio’s progress notes documented that Mr. Balman’s alcohol use disorder remained
“in partial remission.” Dkt. No. 66-1 at 275. Due to his worsening anxiety and suicidal thoughts,
Dr. Cerio prescribed him a low-dose trial of “gabapentin” (100 mg three times daily) and “loraze-
pam” (0.25 mg up to three times daily), medications that can be used to treat anxiety. Id. at 276.
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Dr. Cerio assessed Mr. Balman as an “intermediate risk with recurrence of suicidal ideation
in the context of increased anxiety,” but noted that he declined voluntary hospitalization and con-
cluded that he did not meet the criteria for involuntary hospitalization. Dkt. No. 66-1 at 276. Dr.
Cerio further noted that Mr. Balman had declined contact with the suicide prevention team at that
time. Id. She scheduled a follow-up visit for October 9, 2019. Id. at 277.
An October 2019 appointment did not happen. 	After Dr. Cerio cancelled the October 9
visit due to an illness, three attempts to reschedule with Mr. Balman between October 9 and 15
proved unsuccessful. Def.’s Facts ¶ 25. However, on October 21, Mrs. Balman called Dr. Cerio
to “express significant concern” about Mr. Balman’s “behavior and treatment over the past week.”
Id. ¶ 26. Mrs. Balman also expressed “frustration” that her husband was “being treated with dan-
gerous medications without follow-up.” 	Id. 	Mrs. Balman reported that Mr. Balman had been
“escalating his alcohol intake.” Id. ¶ 27. At that time, Mrs. Balman also stated that her husband’s
renewal request for an additional course of TMS treatments had not been processed yet. See id.
Dr. Cerio explained to Mrs. Balman that the VA had been unable to reach Mr. Balman to
reschedule his October appointment. Dkt. 66-1 at 270. Thereafter, Dr. Cerio left Mr. Balman a
voicemail to encourage him to reschedule “and to discuss his current symptoms.” Id. Mr. Balman
called Dr. Cerio back three days later and left a voicemail in which he reported that “he is doing
quite well but would like to reschedule” his visit. 	Id. 	Dr. Cerio rescheduled Mr. Balman for
October 30. Id.
On October 30, 2019, Mr. Balman met with Dr. Cerio. Def.’s Facts ¶ 31. There, he re-
ported that he feels “worlds better” since starting gabapentin, which he usually took twice daily
during the week. Dkt. No. 66-1 at 263. He further reported that on weekends he was also taking
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lorazepam to help with his increased anxiety. Id. Mr. Balman reported that he had drank “some
alcohol a few weekends ago,” but stated that “overall” he had stopped drinking. Id.
Dr. Cerio provided Mr. Balman with supportive psychotherapy, “focused on reinforcing
development of gradual steps in increased activity.” Dkt. No. 66-1 at 263. Dr. Cerio’s progress
notes from this visit documented that Mr. Balman’s alcohol use disorder remained “in partial re-
mission.” Id. Further, Dr. Cerio’s mental status examination noted that Mr. Balman had experi-
enced “recent suicidal ideation” with a plan but without intent. Id. at 266.
Dr. Cerio noted that Mr. Balman’s anxiety had improved and his suicidal ideation had re-
duced with the use of low-dose gabapentin. Dkt. No. 66-1 at 266. Dr. Cerio again assessed Mr.
Balman as an “intermediate risk” with regard to his safety, but noted that his “more recent acute
symptoms appear reduced.” 	Id. 	She noted that Mr. Balman was “currently safe for outpatient
treatment” and did not meet the criteria for involuntary hospitalization. Id.
Dr. Cerio instructed Mr. Balman to continue low-dose gabapentin and advised him that he
could take a higher dose on weekends to minimize his use of lorazepam. Dkt. No. 66-1 at 266.
Dr. Cerio also encouraged Mr. Balman to re-engage with therapy. Id. at 267. The record indicates
that Dr. Cerio instructed Mr. Balman to return for a follow-up in four weeks, but no appointment
was scheduled at that time. See id.
On October 31, 2019, the day after this visit, Mrs. Balman called Dr. Cerio to express her
ongoing frustration about the delay in coordinating Mr. Balman’s TMS referral. Def.’s Facts ¶ 47.
Dr. Cerio explained to Mrs. Balman that she had not heard from the TMS provider’s office, but
that she would call them. 	Id. ¶ 48. 	Dr. Cerio contacted the TMS provider, provided her direct
phone number, and encouraged them to contact the VA about the status of the referral. Id. ¶ 49.
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On November 26, 2019, Mr. Balman met with Dr. Cerio. Def.’s Facts ¶ 50. There, Mr.
Balman reported that he was “doing well” and that “increasing his dose of gabapentin during the
weekends has helped to reduce his anxiety and improve his functioning.” Dkt. No. 66-1 at 258.
Mr. Balman denied “any negative effects” from the increased use of his medication and, notably,
did not “endorse any ongoing alcohol intake,” either. Id.
Dr. Cerio provided Mr. Balman with supportive psychotherapy “focused on discussion of
upcoming stressors (holiday parties), coping ahead, and focusing on future positive experiences.”
Dkt. No. 66-1 at 258. Dr. Cerio’s progress notes from this visit documented that Mr. Balman’s
alcohol use disorder remained “in partial remission.” Id. Further, her mental status examination
noted that Mr. Balman had experienced “recent suicidal ideation” with a plan but without intent.
Id. at 261.
Dr. Cerio noted that Mr. Balman’s anxiety had improved and his suicidal ideation had re-
duced with use of the low-dose gabapentin. Dkt. No. 66-1 at 261. Dr. Cerio again assessed Mr.
Balman as an “intermediate risk” with regard to his safety, but noted that his “more recent acute
symptoms appear reduced.” 	Id. 	She noted that Mr. Balman was “currently safe for outpatient
treatment” and did not meet the criteria for involuntary hospitalization. Id.
Dr. Cerio instructed Mr. Balman to continue low-dose gabapentin and advised him that he
could take the higher dose on weekends. 	Dkt. No. 66-1 at 261. 	She further instructed him to
discontinue his use of lorazepam. Id. Dr. Cerio noted that Mr. Balman had finally been approved
for a second course of TMS therapy. Id. She further noted that a neuropsychology referral might
be warranted if Mr. Balman’s cognitive issues did not improve. Id. at 261. The record indicates
that Dr. Cerio instructed Mr. Balman to return for a follow-up in eight weeks, but to contact her
office sooner or to reach out to emergency services if his symptoms worsened. See id. at 262.
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On January 15, 2020, Mr. Balman canceled an appointment with Dr. Cerio that had been
booked for that month and rescheduled the visit for one month later, on February 12, 2020. Def.’s
Facts ¶¶ 70–71. 	At the rescheduled February visit, Mr. Balman reported that he continued to
benefit from gabapentin for his daytime anxiety, but was experiencing “some increase in anxiety
on weekends.” Dkt. No. 66-1 at 253. He further reported that gabapentin was causing him some
side effects but that they were “tolerable” at this time. Id.
Dr. Cerio provided Mr. Balman with supportive psychotherapy “focused on empathic lis-
tening, exploration of gradual changes in symptoms, [and] validating his approach of remaining
appreciative of his overall improvement. Dkt. No. 66-1 at 253. Dr. Cerio’s progress notes from
this visit documented that Mr. Balman’s alcohol use disorder remained “in partial remission.” Id.
at 256. 	Further, her mental status examination noted that Mr. Balman had experienced “recent
suicidal ideation” with a plan but without intent. Id. at 261.
Dr. Cerio noted that Mr. Balman’s anxiety had improved and his suicidal ideation had re-
duced with the continued use of low-dose gabapentin. 	Dkt. No. 66-1 at 256. 	Dr. Cerio again
assessed Mr. Balman as an “intermediate risk” with regard to his safety, but noted that his “more
recent acute symptoms appear reduced.” Id. She noted that Mr. Balman was “currently safe for
outpatient treatment” and that he did not meet the criteria for involuntary hospitalization. Id.
Dr. Cerio instructed Mr. Balman to continue low-dose gabapentin and advised him that he
could continue to take the higher dose on the weekends. 	Dkt. No. 66-1 at 256. 	As before, Dr.
Cerio noted that Mr. Balman had been approved for a second course of TMS. 	Id. 	She further
noted that a neuropsychology referral might be warranted if Mr. Balman’s cognitive issues did not
improve. 	Id. at 261. 	The record indicates that Dr. Cerio instructed Mr. Balman to return for
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another follow-up in eight weeks, but to contact her office sooner or to reach out to emergency
services if his symptoms worsened. See id. at 257.
On March 11, 2020, Mr. Balman met with Dr. Cerio. Def.’s Facts ¶ 86. There, Mr. Balman
reported that he is “ok, but that increasingly he is experiencing episodes where his anxiety breaks
through.” Dkt. No. 66-1 at 248. Mr. Balman reported that some of these breakthrough episodes
“were driven by forgetting to take a gabapentin.” Id.
Dr. Cerio provided Mr. Balman with supportive psychotherapy “focused on exploration of
triggers, empathic listening, and reinforcement of the veteran’s choice in his treatment options.”
Dkt. No. 66-1 at 248. Dr. Cerio’s progress notes from this visit documented that Mr. Balman’s
alcohol use disorder remained “in partial remission.” Id. A mental status examination noted that
Mr. Balman had experienced “recent suicidal ideation” with a plan but without intent. Id. at 250.
Dr. Cerio’s progress notes indicated that Mr. Balman’s anxiety “has started to return over
the past two months.” Dkt. No. 66-1 at 250. Dr. Cerio again assessed Mr. Balman as an “inter-
mediate risk” with regard to his safety, but noted that his “more recent acute symptoms appear
reduced.” Id. She noted that Mr. Balman was “currently safe for outpatient treatment” and that
he did not meet the criteria for involuntary hospitalization. Id.
Dr. Cerio instructed Mr. Balman to continue low-dose gabapentin and advised him that he
could continue to take the higher dose on the weekends. 	Dkt. No. 66-1 at 251. 	Dr. Cerio also
approved a “short course as needed” of lorazepam, a trial dosage of “propranolol” for his anxiety,
and “began discussion of buspirone as an alternative” depending on the results. Id. The record
indicates that Dr. Cerio instructed Mr. Balman to return for another follow-up in four weeks, but
to contact her office or to reach out to emergency services if his symptoms worsened. Id.
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1. Pandemic
By the spring of 2020, the nation’s response to the COVID-19 pandemic was underway.
On March 24, 2020, VA staff contacted Mr. Balman to discuss the possibility of telehealth or video
appointments because several of his providers were not offering in-person services for the fore-
seeable future. 	See Dkt. No. 66-1 at 247. 	Mr. Balman, who was “pleasant and cooperative
throughout the conversation,” agreed to telephone but not video appointments. Id.
On April 15, 2020, Mr. Balman had his first telephone visit with Dr. Cerio. Dkt. No. 66-1
at 241. 	There, Mr. Balman reported that he was “feeling well,” was unable to tolerate the trial
dosage of propranolol, but continued to find gabapentin helpful. Id. at 242. Mr. Balman further
reported that he had “been adjusting to having his adult children at home” and to “continuing to
work in his building despite limited staffing,” but that his family had been supportive. Id.
Dr. Cerio provided Mr. Balman with supportive psychotherapy and documented that his
alcohol use disorder remained “in partial remission.” Dkt. No. 66-1 at 242, 244. A mental status
exam noted that Mr. Balman had not experienced “recent suicidal ideation.” Id. at 244. Dr. Cerio
continued to assess Mr. Balman as an “intermediate risk,” but once again noted that his “more
recent acute symptoms appear reduced.” Id. She noted that Mr. Balman was “currently safe for
outpatient treatment” and that he did not meet the criteria for involuntary hospitalization. Id.
Dr. Cerio instructed Mr. Balman to continue low-dose gabapentin and advised him that he
could continue to take a higher dose on the weekends. 	Dkt. No. 66-1 at 244. 	Dr. Cerio also
continued the “short course as needed” of lorazepam but discontinued the trial dosage of propran-
olol “due to intolerance.” Id. The record indicates that Dr. Cerio instructed Mr. Balman to follow-
up in six weeks, but to contact her office or to reach out to emergency resources if his symptoms
worsened. Id. at 245.
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On May 4, 2020, Dr. Cerio received a telephone call from Mrs. Balman, “who was irate.”
Dkt. No. 66-1 at 240. There, Mrs. Balman reported that Mr. Balman:
had a vacation, and during that time he sat in front of the tv all day
long, not talking to anyone. 	She reports that he is forgetful about
instructions he has given the children. She does not recognize any
changes in sleep. She indicates that he has been drinking six beers
in half an hour. She reports that at home he has been agitated, angry,
and shared an example from yesterday where she states he threw a
plate on the floor then threatened about whether she wants him to
put a gun to his head. 	She would not answer whether there were
weapons in the home but was accepting of feedback that safety pre-
cautions should be taken if there are firearms in the home to limit
accessibility.
Dkt. No. 66-1 at 240. After this conversation with Mrs. Balman, Dr. Cerio left an urgent message
on Mr. Balman’s voicemail. Id.
Mr. Balman soon returned Dr. Cerio’s call, expressing “confusion” as to why she left the
urgent voicemail. Dkt. No. 66-1 at 240. Mr. Balman admitted that he threw the plate down during
the fight with his wife but was “adamant that he was not suicidal yesterday or at the time of the
phone call.” Id. Mr. Balman also denied any need to go to the hospital. Id. However, Mr. Balman
acknowledged that “he has been going through a low stretch” and agreed to an in-person visit with
Dr. Cerio later that week. Id.
On May 6, 2020, Mr. Balman met with Dr. Cerio in person. Dkt. No. 66-1 at 234–38. At
this visit, Dr. Cerio evaluated Mr. Balman using a risk assessment tool called the Lifetime/Recent
Columbia Suicide Severity Rating Scale (“C-SSRS”).3 Among other things, Mr. Balman admitted
that he had, in his lifetime, started to or prepared to end his life, but denied doing so in the past
3 The C-SSRS is a series of plain-language questions that can be used to help identify whether someone is at risk for
suicide, to assess the severity and immediacy of that risk, and to gauge the level of support the person needs. See
Columbia-Suicide Severity Rating Scale (C-SSRS), https://www.columbiapsychiatry.org/research-labs/columbia-
suicide-severity-rating-scale-c-ssrs (last visited March 9, 2025).
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three months. Id. at 239. Mr. Balman further denied having thoughts about wishing to be dead or
any actual thoughts of killing himself. Id. at 239.
Mr. Balman reported “that he has been feeling lower and more anxious over the past several
weeks, that his sleep has worsened as a result of “the heightened anxiety,” and that he had “with-
drawn significantly” but that he was “working on taking on one task at a time.” Dkt. No. 66-1 at
234. He acknowledged throwing the plate deliberately during the recent argument with his wife,
but denied being intoxicated at the time. Id. Instead, Mr. Balman stated that the fight stemmed
“over disagreement related to his son returning home.” Id. Mr. Balman once again denied any
suicidal ideation being linked to this domestic episode. Id.
Dr. Cerio provided Mr. Balman with supportive psychotherapy and “discussed at length
his concerns about having too much on his plate at this time to engage in increased therapeutic
support, his feeling like he hits a plateau or wall in his work repeatedly as well as noting that he
has trouble speaking for himself during conflict.” Dkt. No. 66-1 at 234. Dr. Cerio indicated to
Mr. Balman that his “cyclic episodes of heightened anxiety with sleep disturbance” pointed to a
possible missed diagnosis of “bipolarity,” a conclusion somewhat reinforced by “his prior negative
reactions to standard antidepressants.” Id. at 235.
Dr. Cerio documented that Mr. Balman’s alcohol use disorder remained “in partial remis-
sion.” Dkt. No. 66-1 at 237. Her mental status examination noted that Mr. Balman’s mood was
“not the best” and that he had experienced “recent suicidal ideation” with a plan but no intent. Id.
Dr. Cerio continued to assess Mr. Balman as an “intermediate risk with regard to safety.” Id. She
determined that Mr. Balman was “currently safe for outpatient treatment” and that he did not meet
the criteria for involuntary hospitalization at that time, either. Id.
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Dr. Cerio instructed Mr. Balman to continue low-dose gabapentin and advised him that he
could continue to take the higher dose on the weekends. Dkt. No. 66-1 at 237. She advised Mr.
Balman that “sleep hygiene” was important, encouraged him to “limit his alcohol intake,” and
discussed options to consider in the context of a possible bipolar diagnosis. Id. at 238. The record
indicates that Mr. Balman planned to call LCSW Tubbs to restart therapy. Id. The record further
indicates that Dr. Cerio instructed Mr. Balman to follow-up in three weeks, but to contact her
office or to reach out to emergency resources if his symptoms worsened. Id.
The next day, May 7, 2020, Mr. Balman’s wife scheduled a telephone visit with his VA
primary care provider, Dr. Siddiqui. Dkt. No. 66-1 at 233. There, Mr. Balman and his wife re-
ported that they were concerned about Mr. Balman’s “decline in his short term memory.” 	Id.
According to Mrs. Balman, she had “noticed a difference over the past six months and it seems to
progressively be getting worse.” Id. During that telephone visit, Mrs. Balman also reported that
Mr. Balman “is possibly intermittently slurring his words and also shuffling his gait.” Id. at 230.
Mr. Balman, for his part, reported that he was “currently drinking 1-2 beers per day” and was “not
sleeping well.” Id.
Dr. Siddiqui conducted a “mini” mental status examination and recorded that Mr. Balman
struggled to complete “serial sevens.” Dkt. No. 66-1 at 231. The record reflects that Mr. and Mrs.
Balman were both concerned that his symptoms might be “a progressive neurological issue like
early dementia or Parkinson’s disease” (based on his family history) and requested a specialty
evaluation. Id. Dr. Siddiqui referred Mr. Balman for a neurological evaluation and imaging. Id.
Dr. Siddiqui also prescribed Mr. Balman “some Thiamine and Folic acid” and advised him
to maintain “strict abstinence from Alcohol.” Dkt. No. 66-1 at 231–32. According to Dr. Siddiqui,
it was her standard practice to prescribe thiamine and folic acid to any patients with a history of
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alcohol use or a history of drinking “above recommended limits in the past or ongoing.” Def.’s
Facts ¶ 170. Notably, Dr. Siddiqui alerted Dr. Cerio to this treatment note, who signed off on this
electronic record with her own addendum indicating that she had reviewed the symptomatology
and planned to follow up with Mr. Balman in three weeks. Dkt. No. 66-1 at 232.
On May 19, 2020, Mr. Balman met with a physician assistant for his neurology consulta-
tion and brain MRI. 	Dkt. No. 66-1 at 224. There, Mr. Balman reported daily headaches, sleep
apnea, tiredness, and trouble with his short-term memory. Id. at 225. He further reported that he
did not smoke and only drank a minor amount. 	Id. 	The provider ordered a Cefaly device for
headache prevention and prescribed Mr. Balman vitamin B complex, magnesium, and riboflavin
for headache prevention. Id. at 226. The provider scheduled a one-month follow-up. Id. at 227.
On May 27, 2020, Mr. Balman had a telephone visit with Dr. Cerio. Dkt. No. 66-1 at 219–
23. There, Mr. Balman reported that he had been “less on edge” and had “more motivation” since
their last meeting. Id. at 219. He further reported that his cognitive issues continued to affect him
and stated that he had been taking diphenhydramine to help with sleep. Id. Mr. Balman reported
that he had “continued to struggle with completion of tasks,” such as repeatedly forgetting to call
LCSW Tubbs to resume their therapy sessions. Id.
Dr. Cerio provided supportive psychotherapy, “including exploration of the veteran’s
thoughts about treatment options discussed at his last visit” and “modifying expectations for him-
self while addressing tasks that have become difficult.” Dkt. No. 66-1 at 220. In progress notes,
Dr. Cerio observed that changes “related to the coronavirus pandemic” had “markedly increased”
his “marital strain” at home. Id. at 221.
Dr. Cerio’s mental status examination noted that Mr. Balman was not experiencing any
suicidal ideation. Dkt. No. 66-1 at 222. She documented that Mr. Balman’s alcohol use disorder
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remained “in partial remission.” Id. Dr. Cerio continued to assess Mr. Balman as an “intermediate
risk with regard to safety.” Id. She determined that Mr. Balman was “currently safe for outpatient
treatment” and that he did not meet the criteria for involuntary hospitalization at that time. Id.
Dr. Cerio instructed Mr. Balman to continue gabapentin. Dkt. No. 66-1 at 223. She dis-
cussed with Mr. Balman options to consider in the context of a possible bipolar II diagnosis, in-
cluding trial medications. Id. Notably, Mr. Balman continued to have “concern” about medication
“given his prior reactions to medications in the past.” 	Id. 	Notably, Dr. Cerio encouraged Mr.
Balman “to limit his alcohol intake.” Id. The record indicates that Mr. Balman planned to call
LCSW Tubbs to restart therapy. 	Id. 	The record further indicates that Dr. Cerio instructed Mr.
Balman to follow-up in four weeks, but to contact her office or to reach out to emergency resources
if his symptoms worsened. Id.
On May 29, 2020, Mr. Balman called LCSW Tubbs to schedule an appointment. Dkt. No.
66-1 at 218–19. She scheduled a video appointment with him for June 17. Id. At this June 17
session, Mr. Balman reported that he was “most distressed by symptoms of anxiety and depres-
sion” but that he had “no concerns about suicide.” Id. at 217. LCSW Tubbs’s mental status exam
noted that there “was no report nor any evidence of suicidal ideation, plan or intent.” Id.
LCSW Tubbs’s notes from this session indicate that Mr. Balman had been encouraged by
his wife and Dr. Cerio to schedule the appointment. Dkt. No. 66-1 at 217. However, Mr. Balman
“expressed ambivalence” about engaging in therapy because he “isn’t certain therapy will help and
that it may be wasting time.” 	Id. 	She noted that Mr. Balman reported feeling “very anxious”
before he leaves for work but is “very motivated and successful at tasks” when he arrives.” Id.
She further noted that he reported becoming “anxious during the transition from work to home”
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and stated that his “adult children are now home due to the pandemic and that family life has been
stressful.” Id. at 217–18.
LCSW Tubbs’s notes indicate that Mr. Balman reported researching medication options
but that he continued to decline any new prescription because he fears it will “somehow trigger a
need for hospitalization.” Dkt. No. 66-1 at 218. These notes also indicate Mr. Balman reported
“drinking alcohol to reduce anxiety,” but that he “doesn’t drink to intoxication” and felt “that is
‘the only thing that works.’” 	Id. 	In brief, LCSW Tubbs’s notes indicate that this session was
“spent exploring ambivalence and [Mr. Balman’s] fear that he will disappoint” LCSW Tubbs. Id.
Mr. Balman agreed to a follow-up session to discuss further treatment. Id.
On June 24, 2020, Mr. Balman had a telephone visit with Dr. Cerio. Dkt. No. 66-1 at 212–
15. There, Mr. Balman reported: “I don’t feel real good but I’m not horribly depressed.” Id. at
214. He further reported poor sleep, recurrent nighttime awakenings, tiredness, and poor motiva-
tion. Id. Notably, Mr. Balman reported “using alcohol to self-medicate his anxiety when his mood
is more up, but at present he is feeling low and finds the alcohol compounds this feeling.” Id.
Dr. Cerio provided Mr. Balman with supportive psychotherapy, “focusing on psychoedu-
cation regarding options for mood regulation, with the veteran recognizing a preference for
lamotrigine based upon his reading.” Dkt. No. 66-1 at 214. Dr. Cerio noted that drug interactions
were “discussed as reviewed through Lexicomp, and reasons to call-rash.” Id. Mr. Balman further
reported that he was planning to re-engage in therapy with LCSW Tubbs. Id.
Dr. Cerio’s notes indicate that Mr. Balman reported “no suicidal ideation” at this visit. Dkt.
No. 66-1 at 215. She documented Mr. Balman’s alcohol use disorder, this time without a notation
of any “partial remission.” Id. Dr. Cerio continued to assess Mr. Balman as an “intermediate risk
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with regard to safety.” 	Id. 	She determined that Mr. Balman was “currently safe for outpatient
treatment” and that he did not meet the criteria for involuntary hospitalization at that time. Id.
Dr. Cerio instructed Mr. Balman to continue his medications. Dkt. No. 66-1 at 215. She
also prescribed him a trial of a mood stabilizer called “lamotrigine” to be taken 25 mg daily for
two weeks and then increased to 50 mg daily if tolerated. Id. She noted that Mr. Balman “is aware
that he should limit alcohol intake” and “monitor for rash,” which could be a sign of a medication
complication. Id. The record indicates that Dr. Cerio instructed Mr. Balman to return for a follow-
up in three weeks, but to contact her office sooner or to reach out to emergency services if his
symptoms worsened. See id. at 216.
2. Death
On June 29, 2020, Mr. Balman and Mrs. Balman had an argument because their son did
not finish mowing the lawn. Def.’s Facts ¶ 230. According to the police report, Mr. Balman had
begun yelling at their son, which caused Mrs. Balman to state that it was not a big deal. Dkt. No.
56-2 at 5. Mr. Balman became “very upset” and “flew off the handle.” Id. Mr. Balman slept on
the couch that night. Id.
The next morning, Mrs. Balman left for work. Def.’s Facts ¶ 232. Mr. Balman was still
asleep on the couch. Id. After a full day of work, Mrs. Balman visited a friend for a few hours.
Dkt. No. 56-2 at 5. When she arrived home at 10:15 p.m., she found Mr. Balman unresponsive in
the bedroom.4 Id. She called 911. Id. Police and an ambulance responded to the residence. Id.
But Mr. Balman was pronounced dead at the scene at 10:42 p.m. Id. at 3.
Police interviewed Mrs. Balman about decedent’s “mental state and what could have trig-
gered a suicide.” Dkt. No. 56-2 at 5. She reported that decedent was a military veteran who “has
4 A suicide note was affixed to the wall near the light switch: “You betrayed me and chose your son over me. I
hope you are both very happy. I gave you what you wanted.” Dkt. No. 56-2 at 4.
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battled with depression and anxiety since his service.” Id. She also described decedent’s recent
behavior, explaining that his overreaction to the argument “was a common occurrence when he
was becoming depressed.” Id. In a statement, Mrs. Balman reported that the “VA [had] changed
his medication” five days ago, but that she “didn’t notice [any] major changes in his behavior up
until now.” Dkt. No. 56-2 at 9. An autopsy later revealed the presence of lamotrigine, diphenhy-
dramine, cotinine, and caffeine—but not alcohol. Dkt. No. 56-3 at 11.
III. 	LEGAL STANDARD
The entry of summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. C IV. P. 56(a). 	A fact is “material” if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is considered “genuine” when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id. In conducting this analysis, the court must view the facts
and draw all reasonable inferences in the light most favorable to the non-movant. Id. at 255. But
there is no genuine issue for trial “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (explaining
movant can alternatively point to “an absence of evidence to support the nonmoving party’s case”).
IV. 	DISCUSSION
A. Threshold Matters
Before wading into the merits of this dispute, there is some table-setting to do. First, the
Court needs to clarify a fundamental rule about briefing in federal court. Second, and relatedly,
the Court has to examine whether a state-law competency statute precludes the consideration of
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certain evidence offered by defendant. Third, the Court must identify the parameters of the factual
universe that will be considered for the purpose of this motion practice. Fourth, and finally, the
Court intends to delineate what specific time period within that broader factual universe can be
considered as part of plaintiff’s claim, since the FTCA imposes jurisdictional limitations to suit.
1. Plaintiff’s Briefing
First, as a matter of general principle: legal arguments belong in a memorandum of law,
not in an affidavit, declaration, or, as relevant here, a response to a statement of material facts.
Compare N.D.N.Y. L.R. 7.1(b)(1), with N.D.N.Y. L.R. 7.1(b)(2)–(3); see also, e.g., Pike Co., Inc.
v. Tri-Krete Ltd., 772 F. Supp. 3d 353, 372 n.6 (W.D.N.Y. 2025) (“[T]he legal arguments advanced
by the parties should be readily laid out in the memoranda of law submitted to the Court.”); Kruger
v. Virgin Atl. Airways, Ltd., 976 F. Supp. 2d 290, 309 (E.D.N.Y. 2013) (“Plaintiffs make legal
arguments in their Rule 56.1 Statement that should appear only in their memorandum of law.”).
There are a number of reasons for the existence of this long-standing principle. For one
thing, it prevents parties from circumventing page limitations on legal briefing that are imposed
by the local rules. For another, it relieves the Court of the task of hunting through documents to
try to cobble together all of a party’s legal arguments into one place. 	But perhaps chief among
them is the belief that it is the parties’ job, at least in the first instance, to articulate the governing
legal principles and then explain how that law should be applied to the facts in issue. Cf. Castro
v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judg-
ment) (“Our adversary system is designed around the premise that the parties know what is best
for them, and are responsible for advancing the facts and arguments entitling them to relief.”).
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2. New York’s Dead Man’s Statute
Plaintiff’s briefing runs afoul of this principle, and the particular way in which it does so
illustrates why the principle is so important in the first place. In her response to defendant’s state-
ment of material facts, plaintiff:
objects generally to Defendant’s reliance on any testimony regard-
ing communications that Defendant’s employees had with Mr. Bal-
man, pursuant to New York’s “Dead Man’s Statute,” or C.P.L.R.
4519. That rule requires Defendant’s [sic] to rely solely upon doc-
umentary evidence of interactions with the decedent. See generally
Clark v. Meyer, 188 F. Supp. 2d 416, 433 n.34 (S.D.N.Y. 2002).
Dkt. No. 65-5 at 1. Elsewhere in this document, plaintiff proceeds to object to certain assertions
made by defendant that are supported by citations to Dr. Cerio’s affirmation because “New York’s
dead man statute applies in this matter.” See, e.g., Pl.’s Facts ¶¶ 227, 233.
But this legal argument is not even mentioned, let alone developed in some cognizable
fashion, in plaintiff’s opposition memorandum. 	See generally Dkt. No. 65-6. 	As a result, the
Court is left to try to figure out for itself, based on the strength of a single “See generally” citation
to a footnote buried in a twenty-four-year-old, out-of-district, trial-court precedent, whether a state-
law codification of a common-law witness competency rule applies to an FTCA claim in federal
court.
Defendant’s reply memorandum persuasively argues that it does not. See generally Dkt.
No. 71 at 9–11. Although “state law supplies the rules in diversity-of-citizenship cases,” Rosenfeld
v. Basquiat, 78 F.3d 84, 88 (2d Cir. 1996), this is a federal-question case brought under the FTCA.
And while “the FTCA directs courts to consult state law to determine whether the government is
liable for the torts of its employees,” Liranzo v. United States, 690 F.3d 78, 86 (2d Cir. 2012), the
Second Circuit has cautioned that in an FTCA action “state law will apply only if it is substantive,
rather than procedural.” Gonzalez v. United States, 80 F.4th 183, 193 (2d Cir. 2023) (cleaned up).
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To be sure, the distinction between what is “substantive” and what is “procedural” is not
always obvious. See, e.g., Rocco v. United States, 694 F. Supp. 3d 201, 206 (D. Conn. 2023) (“The
question has bedeviled courts and commentators for decades now since the Supreme Court’s land-
mark decision recognizing the substantive/procedural distinction in Erie R.R. Co. v. Tompkins, 304
U.S. 64 (1938).”).
But at least in the FTCA context, the Second Circuit has explained that “procedural law is
‘the judicial process for enforcing rights and duties recognized by substantive law,’ while substan-
tive law is ‘the law that governs the rights and obligations of individuals within a given jurisdic-
tion.’” Corley v. United States, 11 F.4th 79, 85 (2d Cir. 2021) (quoting Pappas v. Philip Morris,
Inc., 915 F.3d 889, 894 (2d Cir. 2019)).
Thus, as one court has cogently explained, “the FTCA applies only those state laws that
contribute to or define the extent to which a private party is substantively liable to another. Lia-
bility can—and frequently does—exist separate and apart from the procedures used to legally as-
certain and resolve it.” Shields v. United States, 436 F. Supp. 3d 540, 545 (D. Conn. 2020).
Applying that logic here with the benefit of defendant’s briefing (and, notably, without the
benefit of plaintiff’s thoughts on this deceptively thorny legal question), there is a strong indication
that New York’s Dead Man’s Statute is a procedural rule that would be inapplicable in this FTCA
action. Cf. Rosenfeld, 78 F.3d at 88 (applying statute in diversity-of-citizenship action); see Gaz-
zola v. County of Nassau, 2022 WL 2274710, at *10 n.15 (E.D.N.Y. June 23, 2022) (rejecting
“halfhearted” argument that statute should apply in federal-question case).
On the other hand, maybe not. The Court’s own research suggests that New York’s Dead
Man’s Statute might need to be imported into an FTCA action anyway, at least when certain state
substantive laws are involved. After all, the Federal Rules of Evidence specifically contemplate
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the use of state competency rules when a state’s substantive law applies. FED. R. EVID. 601 (“[I]n
a civil case, state law governs the witness’s competency regarding a claim or defense for which
state law supplies the rule of decision.”). As the Second Circuit once explained, Congress specif-
ically amended Rule 601 to avoid “rendering inapplicable in the federal courts the so-called Dead
Man’s Statutes” when federal courts were sitting in diversity. Rosenfeld, 78 F.3d at 88.
Of course, this is not a diversity-of-citizenship case. But there are extra-circuit authorities
that have relied on Rule 601 to hold that state-law witness competency rules do in fact apply to an
FTCA claim premised on medical malpractice. Coleman v. United States, 912 F.3d 824, 829 (5th
Cir. 2019); Leibsack v. United States, 731 F.3d 850, 854–55 (9th Cir. 2013). 	And a review of
these extra-circuit authorities suggests a need to tread lightly in this area of law, since it appears
more generally that every federal circuit court to consider Rule 601’s application to this kind of
issue has been happy to extend its reach. See, e.g., Moreno v. Bosholm, 151 F.4th 543, 558 (4th
Cir. 2025) (canvassing these and other authorities and holding same).
Notably, these authorities do not appear to be concerned with the distinction—to the extent
it is a meaningful one in this context—between diversity-of-citizenship cases involving medical
malpractice against diverse parties that can be brought in federal court (which apply state substan-
tive law thanks to Erie) and federal-question cases involving medical malpractice against the fed-
eral government that must be brought in federal court (which apply state substantive law thanks to
the FTCA). And these issues were not developed in an adversarial fashion in the parties’ briefing,
so the Court is left to try to figure all of this out on its own.
Thankfully, though, all of this is beside the point. Regardless of the applicability of the
Dead Man’s Statute to an FTCA action for medical malpractice premised on New York law, de-
fendant correctly points out that plaintiff has failed to validly place in dispute the factual
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contentions to which she has objected on this basis. As noted supra, in her response to defendant’s
statement of material facts, plaintiff objects on witness competency grounds5 to two paragraphs:
227. 	Mr. Balman did not contact Dr. Cerio at any point after his
telehealth visit with her on June 24, 2020. See Cerio Decl. ¶ 9.
. . . .
233. Dr. Cerio was not aware of the fight between Mr. Balman and
Mrs. Balman on June 29, 2020, before his death. See Cerio Decl. ¶
9.
Dkt. No. 65-5 ¶¶ 227, 233.
Defendant correctly argues that even if you put aside Dr. Cerio’s declaration, these facts
are readily inferred from the existing summary judgment record, either based on the medical record
itself or from the fact that the rest of the available record contains zero evidence whatsoever of
these purportedly contested facts. In other words, even viewed in the light most favorable to the
non-movant, there is no evidence in the existing record from which it can be inferred that: (1)
decedent contacted Dr. Cerio after his June 24, 2020 visit; (2) Dr. Cerio knew, or had any reason
to know, that decedent and his wife had a fight the night before he died; or (3) decedent or anyone
else contacted 911, a crisis line, or the VA on his behalf.
Thus, as defendant points out, these facts are “undisputed” regardless of the applicability
of the Dead Man’s Statute to Dr. Cerio’s declaration. 	Accordingly, these facts will be deemed
admitted for the purpose of summary judgment.
3. Responses to Factual Assertions
Plaintiff’s response to defendant’s statement of material facts has two more procedural
problems. 	First, the document contains dozens of paragraphs that, for various reasons, fail to
5 Plaintiff also objects to Dr. Cerio’s affirmation as “self-serving,” but the Court is not going to spill any ink reject-
ing that accurate-but-irrelevant (at least under the circumstances) observation.
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appropriately controvert the specific fact being offered by the movant. 	Second, the document
includes a statement of additional undisputed facts which, to the Court’s knowledge, is not con-
templated by the Federal Rules of Civil Procedure or this District’s Local Rules.
Recall that this is summary judgment. Rule 56 creates a screening-out procedure that tasks
the court with “discerning whether there are any genuine issues of material fact to be tried.” Gallo
v. Prudential Res. Servs., Ltd. P’Ship, 22 F.3d 1219, 1224 (2d Cir. 1994). 	“While genuineness
runs to whether disputed factual issues can reasonably be resolved in favor of either party, mate-
riality runs to whether the dispute matters, i.e., whether [the dispute] concerns facts that can affect
the outcome under the applicable substantive law.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996) (cleaned up). 	“A reasonably disputed, legally essential issue is both genuine and material
and must be resolved at trial.” Id.
Put differently, the Court’s job here is to figure out whether we need a trial. See, e.g., Ricci
v. DeStefano, 557 U.S. 557, 586 (2009). 	But that job is not an easy one, because genuine fact
disputes can be tough to spot in a voluminous discovery record. And although the Court does its
best to thoroughly review each case that comes before it, the simple reality is that no district court
will ever spend as much time with any single case as the parties to it already have. So the summary
judgment procedure puts the initial responsibility for identifying triable fact disputes on the best-
informed participants in the litigation process: the parties themselves.
The process for doing so is spelled out in our Local Rules. N.D.N.Y. L.R. 56.1. Without
detailing this local rule in its full glory, the party trying to avoid a trial (i.e., the movant) is supposed
to identify—in a separate document called a statement of material facts—the undisputed material
facts that entitle them to judgment as a matter of law on the claim or defense at issue. In response,
the part seeking to justify the need for a trial on that issue (i.e., the non-movant) is supposed to
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respond—in a separate-but-matching document—by admitting or denying each material fact of-
fered by the movant. 	And for each denial, the non-movant is supposed to identify the specific
record evidence that creates a “genuine” dispute over that material fact.
“In theory, the back-and-forth generated by this party-driven process will cut a voluminous
discovery record down to a manageable size by forcing the parties to identify areas of agreement
and drill down on their disputes.” Krul v. DeJoy, 705 F. Supp. 3d 5, 33 (N.D.N.Y. 2023). “This,
in turn, should leave the Court in a better position to apply the undisputed facts to the law or, more
commonly, to decide if the non-movant’s version of events, viewed in their favor and considered
in light of the rest of the record, are sufficient to warrant a trial.” Id.
In practice, though, the non-movant tends to resist the role assigned to them in this back-
and-forth process. 	For instance, sometimes the non-movant responds by offering up their own
opinion about the record evidence identified by the movant. LaFever v. Clarke, 525 F. Supp. 3d
305, 323 (N.D.N.Y. 2021). Other times the non-movant tries to raise evidentiary objections to the
facts being offered. Crawley v. City of Syracuse, 496 F. Supp. 3d 718, 724–25 (N.D.N.Y. 2020).
Plaintiff’s resistance to her role in the process of winnowing down the genuine fact disputes
in this massive record comes in several different forms. As defendant explains in its reply mem-
orandum, plaintiff: (1) responds to paragraphs with what might be characterized as an attempt at a
partial admission (e.g., “admitted to the extent that . . . . ”); (2) repeatedly offers facts and/or legal
arguments as part of these responses; (3) purports to “deny” certain facts without citing to record
evidence sufficient to place those facts in genuine dispute. See Dkt. No. 71 at 3–8 (summarizing
and highlighting examples of deficiencies).
These kinds of responses are procedurally improper. 	See, e.g., Maioriello v. N.Y. State
Office for People with Developmental Disabilities, 272 F. Supp. 3d 307, 311 (N.D.N.Y. 2017)
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(faulting non-movant for purporting to “admit” facts “but then includ[ing] additional facts and/or
legal arguments in those responses”); Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014)
(“Many of Plaintiff’s purported denials—and a number of his admissions—improperly interject
arguments and/or immaterial facts . . . , often speaking past Defendants’ asserted facts without
specifically controverting those same facts.”).
Second, as defendant also points out, there is no procedural vehicle on summary judgment
for offering additional material facts that are not in dispute, either. See, e.g., Ostreicher v. Chase
Bank USA, N.A., 2020 WL 6809059, at *1 n.1 (S.D.N.Y. Nov. 19, 2020) (“There is no provision
for a responsive 56.1 Statement to include additional facts that are not in dispute but that a party
opposing summary judgment simply thinks are important; any additional facts should be confined
to material facts in dispute.”); Phillips v. Wright, 2013 WL 12085119, at *5 n.6 (N.D.N.Y. Jan.
15, 2013) (“If Plaintiff wished to establish a statement of undisputed material facts, he should have
filed a cross-motion for summary judgment . . . . . ”).
This leaves the Court with a few different options. It can just deem the improper responses
“admitted” for the purpose of summary judgment. N.D.N.Y. L.R. 56.1(b). Alternatively, it can
disregard the improper responses to the extent that they include non-responsive factual material or
legal argument. See, e.g., Maioriello, 272 F. Supp. 3d at 311 (collecting cases). This includes the
authority to disregard an improper statement of additional undisputed facts. 	See, e.g., Phillips,
2013 WL 12085119, at *5 n.6. After all, Rule 56 “does not impose an obligation on a district court
to perform an independent review of the record to find proof of a factual dispute.” Amnesty Am.
v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (collecting cases).
Ultimately, however, the Court declines to conduct a line-by-line examination of the pro-
priety of plaintiff’s individual responses. Instead, the Court has opted to go directly to the primary
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source materials, which in this case are the medical records, the police incident reports, and the
autopsy report. See, e.g., Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (holding
district court “may in its discretion opt to conduct an assiduous review of the record”), abrogated
on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
As both parties will no doubt recognize, the factual background recounted supra in the
Background section incorporates all of the supportable evidence that was identified in defendant’s
moving papers and the additional factual information offered in plaintiff’s procedurally problem-
atic responsive submission. 	The Court intends to supplement this factual universe in minor re-
spects during its legal analysis (for instance, to discuss the experts as necessary). But to the extent
that one or more of the facts offered by either party have not been included in the recitation of the
facts set forth in the Background, supra, or referenced in the Discussion, infra, it is because the
Court has reviewed the offering and determined that it is either not supported by the record or not
necessary to discuss to decide the pending motion practice.
4. The FTCA
That leads to the final threshold question: what portion of this overall factual universe can
be considered as part of plaintiff’s medical malpractice claim? 	Plaintiff’s complaint alleges a
claim under the FTCA, which “allows a plaintiff to bring certain state-law tort suits against the
Federal Government . . . for parties injured by federal employees acting within the scope of their
employment.” Brownback v. King, 592 U.S. 209, 210–11 (2021).
Importantly, however, the FTCA’s waiver of federal sovereign immunity is subject to a
number of conditions, including administrative exhaustion: “a plaintiff must first file an adminis-
trative claim with the appropriate federal agency before suing for relief in federal court.” Adeleke
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v. United States, 355 F.3d 144, 153 (2d Cir. 2004). This is formally known as the “presentment
requirement.” Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998) (per curiam).
To adequately “present” an FTCA claim, the plaintiff must provide a written notice to the
federal agency with “sufficient information—whether through narrative, evidence, or other
means—to alert the agency to the basis for his claim, the nature of his injuries, and the amount of
damages sought so that the agency can proceed to investigate its liability and value the claim in
order to assess the advisability of settlement.” Collins v. United States, 996 F.3d 102, 105 (2d Cir.
2021).
In its moving papers, defendant contends that the relevant time period for plaintiff’s FTCA
claim is Dr. Cerio’s treatment of decedent from September 24, 2019 to June 24, 2020. Dkt. No.
55-1 at 4. As defendant explains, plaintiff’s complaint and her Standard Form 95 (a claim form
often used in FTCA cases) identified the time period between October 2019 through June 2020 as
the basis for her medical malpractice claim against the VA. Id. at 4 n.1.
In her opposition memorandum, plaintiff insists otherwise. Dkt. No. 65-6 at 5–6 (“Plain-
tiff, however, did not limit her complaint against the VA to that timeframe . . . . ”). 	Defendant
replies that plaintiff is “objectively wrong” about this issue. Dkt. No. 71 at 11. In support of that
contention, defendant cites to the language in plaintiff’s complaint, to the narrative attached to
plaintiff’s Standard Form 95, and to plaintiff’s own admission in her responsive statement of ma-
terial facts regarding the more limited time frame advocated by defendant. Id. at 11–12.
The Court agrees with defendant on this one. First, defendant is correct that plaintiff “ad-
mitted” that her Standard Form 95 alleged “wrongful death based on medical malpractice arising
out of the care and treatment by Dr. Cerio from October 2019 to June 2020.” Pl.’s Facts ¶ 265.
Second, defendant is correct that plaintiff’s Standard Form 95 and supporting documentation
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indicate that decedent’s “conditions continued to worsen” from “October 2019 through early
2020,” and supplies a chronology of events from that narrower time period. Dkt. No. 55-13.
In other words, there is no indication in the available record that plaintiff adequately pre-
sented an FTCA claim to the VA arising from medical care and treatment that pre-dates this time
period. 	Because the administrative exhaustion requirement “is jurisdictional and cannot be
waived,” Celestine v. Mt. Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005), the
Court confines its analysis to the time period that plaintiff adequately presented to the VA and
properly exhausted in her Standard Form 95: October 2019 to June 2020.6
B. The Merits
Plaintiff asserts a wrongful death claim based on medical malpractice under the FTCA,
which directs courts to apply the substantive law of the state where the tort occurred. See, e.g.,
Borley v. United States, 22 F.4th 75, 78 (2d Cir. 2021). The parties agree that New York tort law
governs this dispute. Dkt. No. 55-1 at 18; Dkt. No. 65-6 at 11.
1. Medical Malpractice
Plaintiff’s claim for medical malpractice is based on Dr. Cerio’s care and treatment of de-
cedent from October 2019 to June 2020. According to plaintiff, “material questions of fact remain
as to whether: (a) Dr. Cerio deviated from the standard of care in assessing, examining, testing,
and treating [decedent]; managing his known risk of suicide and co-occurring alcohol use disorder;
6 One more feature of the FTCA bears mention. Throughout her opposition memorandum, plaintiff references facts
a “jury” might be able to find from this record. See Dkt. No. 65-5 at 2, 5, 12, 25, 26. But there is no right to a jury
in an FTCA action. 28 U.S.C. § 2402. So this case would be a bench trial if summary judgment were denied. Of
course, the standard of review remains the same in this procedural posture. See, e.g., O’Hara v. Nat’l Union Fire
Ins. Co., 642 F.3d 110, 116 (2d Cir. 2011) (“[T]he district court’s task on a summary judgment motion—even in a
nonjury case—is to determine whether genuine issues of material fact exist for trial, not to make findings of fact.”).
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and prescribing him a medication with a known side effect of increased suicidal ideation; and (b)
such deviations were a proximate case of his death.” Dkt. No. 65-5 at 5.
Defendant argues that it is entitled to summary judgment on this claim because the record
establishes that Dr. Cerio thoroughly evaluated decedent on June 24, 2020, the date of his final
visit, and at all prior encounters. Dkt. No. 65-6 at 19. Defendant contends that Dr. Cerio exercised
appropriate clinical judgment in determining that decedent consistently remained safe for outpa-
tient treatment rather than hospitalization. Id.
“To establish a claim for medical malpractice under New York law, a plaintiff must prove
(1) that the defendant breached the standard of care in the community, and (2) that the breach
proximately caused the plaintiff’s injuries.” Arkin v. Gittleson, 32 F.3d 658, 664 (2d Cir. 1994)
(citations omitted). “New York law further provides that, except as to matters within the ordinary
experience and knowledge of laymen, . . . expert medical opinion evidence is required to make out
both of these elements.” Milano by Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995) (cleaned up).
a. Standard of Care
“A doctor is charged with the duty to exercise due care, as measured against the conduct
of his or her own peers—the reasonably prudent doctor standard.” 	Nestorowich v. Ricotta, 97
N.Y. 2d 393, 398 (N.Y. 2002); Spensieri v. Lasky, 94 N.Y.2d 231, 238 (N.Y. 1999) (“[T]he stand-
ard of care for a physician is one established by the profession itself.”). 	“In the context of an
unprevented suicide, New York courts have held that a mental health professional with sufficient
expertise to detect suicidal tendencies and with the control necessary to care for a decedent’s well-
being can be held liable if the provider failed to take reasonable steps to prevent a reasonably
foreseeable suicide.” Jappen v. United States, 771 F. Supp. 3d 123, 137 (N.D.N.Y. 2025) (citing
Cygan v. City of N.Y., 165 A.D.2d 58, 67 (1st Dep’t 1991)).
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However, “[a] doctor is not liable in negligence merely because a treatment, which the
doctor as a matter of professional judgment elected to pursue, proves ineffective or a diagnosis
proves inaccurate.” Nestorowich, 97 N.Y.2d at 398. In New York, this general principle is often
referred to as the “doctrine of professional medical judgment” or sometimes just the “medical
judgment rule.” Park v. Kovachevich, 982 N.Y.S.2d 75, 81 (1st Dep’t 2014) (cleaned up). It is
“particularly relevant to cases involving mental health treatment, given that psychiatry is not an
exact science and, therefore, decisions related to mental health treatment and discharge often in-
volve a measure of calculated risk.” Gallagher v. Cayuga Med. Ctr., 151 A.D.3d 1349, 1351 (3d
Dep’t 2017) (citations omitted).
This doctrine insulates from liability a mental health provider who “chooses a course of
treatment[ ] within a range of medically accepted choices for a patient after a proper examination
and evaluation.” Park, 982 N.Y.S.2d at 81 (citations omitted). Thus, “for a psychiatrist to be held
liable for malpractice based upon a decision made in connection with a patient’s treatment or a
decision to discharge a patient from a hospital, it must be shown that the treatment decisions rep-
resented something less than a professional medical determination or that the psychiatrist’s deci-
sions were not the product of a careful evaluation.” Gallagher, 151 A.D.3d at 1351 (cleaned up).
Measured against this general body of law, defendant’s motion for summary judgment
must be granted. 	Under New York law, the movant bears the initial burden of making a prima
facie showing that there was no departure from the applicable standard of care (or that the depar-
ture, if any, did not proximately cause the non-movant’s harm). See, e.g., Kurtz v. Hansell, 664 F.
Supp. 3d 438, 465 (S.D.N.Y. 2023) (collecting cases); Mylar v. Niagara Falls Med. Ctr., 234
A.D.3d 435, 437 (4th Dep’t 2025) (same).
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Defendant’s submissions establish that Dr. Cerio provided decedent with mental health
treatment that met the applicable standard of care and was well within the range of medically
acceptable choices after she examined and evaluated decedent’s clinical presentation throughout
the time period in issue, including at the final visit on June 24, 2020. See Dkt. No. 71 at 12–13
(summarizing relevant undisputed facts establishing prima facie showing); Report of Defendant’s
Expert George David Annas, M.D., M.P.H., Dkt. No. 55-20 (“Annas Op.”) (articulating applicable
standard of care under the circumstances).
Among other things, the undisputed facts establish that Dr. Cerio assessed and identified
decedent’s risk factors for suicide, including his warning signs and other risk indicators, through-
out the course of her treatment. Dr. Cerio also engaged decedent in psychotherapy sessions, rou-
tinely reviewed and assessed his safety plan, and prescribed medications for his symptoms in ac-
cordance with his preferences for treatment.
The undisputed facts further establish that Dr. Cerio actively considered new diagnoses
based on decedent’s reported symptomatology, especially in light of his cyclic changes in mood,
sleep, and anxiety. Notably, Dr. Cerio repeatedly encouraged decedent to limit his alcohol intake
and to re-engage in therapy offerings by the VA. And crucially, she repeatedly determined that
decedent did not meet the criteria for involuntary hospitalization at any point in the relevant time
period (let alone on June 24, 2020, the date of his last visit).
Plaintiff has not identified sufficient evidence to raise a triable issue of fact as to whether
this prima facie showing departed from the standard of care for an unprevented suicide. See, e.g.,
Kurtz, 664 F. Supp. 3d at 465 (explaining that non-movant’s burden is to demonstrate the existence
of a triable issue of fact); Mylar, 234 A.D.3d at 437 (same). Dr. Lama Bazzi, plaintiff’s expert
witness, acknowledged in her deposition that a patient who, like decedent, denied simultaneously
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experiencing suicidal ideation, a plan, and an intent to act would not be a candidate for involuntary
hospitalization. See Dkt. No. 55-16 (“Bazzi Tr.”).
Likewise, although Dr. Bazzi’s expert report asserts there is evidence in the medical record
that decedent “was NOT appropriate for outpatient treatment” in connection with the June 24,
2020 visit, she does not opine that decedent should have been involuntarily hospitalized at that
time. Dkt. No. 65-9 at 17–18 (“Bazzi Op.”). Instead, in connection with her review of an earlier
interaction with Dr. Cerio in early May of 2020 (the plate-throwing incident), Dr. Bazzi opines
that Dr. Cerio should have referred decedent to voluntarily present himself at a psychiatric emer-
gency room “for a face-to-face evaluation.” Id. at 14–15.
In short, plaintiff’s proof does not offer a basis on which a fact-finder could conclude that
Dr. Cerio’s care and treatment at the June 24, 2020 visit—her last interaction with decedent before
his unprevented suicide—“represented something less than a professional medical determination”
or that her “treatment decisions were not the product of a careful evaluation.” 	Gallagher, 151
A.D.3d at 1351 (cleaned up).
Instead, plaintiff has tried to construct a malpractice claim based on hindsight rather than
anything deficient about Dr. Cerio’s care and treatment of decedent on June 24, 2020. To do so,
plaintiff attempts to vastly expand the concept of the applicable standard of care. According to
plaintiff, Dr. Cerio cannot claim the safe harbor of the “medical judgment rule” because Dr. Cerio
failed to properly examine, assess, and test decedent throughout the entire time period in which he
was under her care and treatment. Dkt. No. 65-6 at 24 (“The truth of the matter is that Dr. Cerio’s
treatment fell below the standard of care from the start” and “each time she saw him[.]”).
First, plaintiff contends that Dr. Cerio breached the standard of care by failing to perform
“any kind of objective test determine if [decedent] was drinking and how much he was drinking”
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and “simply took him at his word” despite being “aware that those who abuse alcohol often mini-
mize their alcohol use.” Dkt. No. 65-6 at 15. Second, plaintiff argues that Dr. Cerio should have
insisted upon video conferences with decedent during the COVID-19 pandemic. 	Id. at 16–17.
Third, plaintiff claims that Dr. Cerio violated the VA’s Substance Use Disorder Treatment Guide-
lines in connection with her decisions about what medications to offer and prescribe to decedent.
Id. at 20–21. Fourth, plaintiff claims that Dr. Cerio should have “stratif[ied]” decedent’s “suicide
risk as ‘high’” on June 24, 2020. Id. at 22–24.
After considering each of these arguments in the context of what is (and what is not) stated
in Dr. Bazzi’s expert report, plaintiff has failed to establish any genuine issues of material fact
regarding Dr. Cerio’s adherence to the applicable standard of care in connection with the harm
suffered in this case, i.e., decedent’s unprevented suicide.
Plaintiff is correct that, as a general matter, summary judgment is not appropriate in med-
ical malpractice cases that present conflicting expert opinions. See, e.g., Doane v. United States,
369 F. Supp. 3d 422, 447 (N.D.N.Y. 2019). But that general statement of law does not mean that
every expert opinion is necessarily sufficient to warrant a trial. See, e.g., Kurtz, 664 F. Supp. 3d
at 465 (“An expert opinion offering only conclusory and speculative assertions is insufficient.”).
This case illustrates the distinction. Dr. Bazzi’s report opines that Dr. Cerio violated the
standard of care when she: (1) failed to diagnose decedent with “Alcohol Use Disorder, Severe,
and address his Alcohol Use Disorder appropriately”; (2) failed “to accurately determine and offer
him the appropriate level of care for his Alcohol Use Disorder”; and (3) failed “to accurately strat-
ify” his “suicide risk as ‘high’ on June 24, 2020.” Bazzi Op. at 16–17.
Dr. Bazzi further opines that if Dr. Cerio had addressed decedent’s “Alcohol Use Disorder,
more likely than not, his psychiatric symptoms would have responded better to treatment, and he
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would not have been suffering from ongoing mood swings, severe global anxiety, depression, and
insomnia” and therefore, “more likely than not, he would not have died of suicide by hanging on
June 24, 2020.” Bazzi Op. at 18.
Respectfully, even viewed in the light most favorable to the non-movant and considered in
light of the rest of the record, this expert opinion would not be enough for a fact-finder to conclude
that Dr. Cerio breached any applicable standard of care in the community. That is especially so in
the context of a malpractice claim arising from mental health treatment, which involves a measure
of calculated risk. See, e.g., Tkacheff v. Roberts, 147 A.D.3d 1271, 1272 (3rd Dep’t 2017).
As defendant correctly points out, Dr. Bazzi “was generally unable to articulate with much
specificity what the standard of care required of Dr. Cerio in this case and when.” Dkt. No. 55-1
at 22. In sum and substance, Dr. Bazzi’s opinions boils down to the broad, generalized assertion
that Dr. Cerio did nearly everything wrong the whole time she treated decedent and that if she had
selected different treatment modalities or pursued other testing, he might have responded more
favorably to that other course of action at some point during the period before his death.
But that is going to be true in nearly every case. “The mere fact that plaintiff’s expert may
have chosen a different course of treatment, without more, cannot sustain a prima facie case of
psychiatric malpractice.” Cerbelli v. City of N.Y., 600 F. Supp. 2d 405, 414 (E.D.N.Y. 2009); see
also, e.g., Darren v. Safier, 615 N.Y.S.2d 926, 927 (2d Dep’t 1994) (finding expert testimony
insufficient to establish malpractice claim where expert “may have felt that additional treatment
was warranted, [but] did not suggest that the evaluations described by [the defendant-psychiatrist]
had not taken place”).
To be sure, Dr. Bazzi’s opinion establishes that she would have made different professional
judgment calls vis-à-vis her treatment of decedent’s alcohol use disorder, such as by attempting to
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require him—as an outpatient—to undergo objective testing. But to what end? Neither Dr. Bazzi’s
expert opinion nor anything else in the record is sufficient to establish that Dr. Cerio’s care and
treatment decisions “represented something less than a professional medical determination or that
[those] decisions were not the product of a careful evaluation.” Gallagher, 151 A.D.3d at 1351
(cleaned up).
That conclusion applies equally to Dr. Bazzi’s speculation that the outcome might have
been different if Dr. Cerio had pursued “sequential intercept points” and “opportunities for inter-
vention” in response to decedent’s earlier signs and symptoms of suicidality. Bazzi Tr. at 4. This
speculation is exactly the kind of second-guessing that, “without more, represents, at most, a dif-
ference of opinion among [medical providers], which is not sufficient to sustain a prima facie case
of malpractice.” Park, 116 A.D.3d at 190 (cleaned up).
In a similar vein, plaintiff faults Dr. Cerio for allegedly violating certain VA guidelines by
failing to offer or prescribe certain medications to decedent. Dkt. No. 65-6 at 20. This argument,
like many of plaintiff’s arguments, appears to be aimed at decedent’s entire treatment relationship
with Dr. Cerio. See, e.g., id. at 7–8 (contending that gabapentin prescription begun in 2019 would
be contraindicated under the VA guidelines); Bazzi Op. at 13 (“Dr. Cerio fell below the standard
of care when she did not follow the guidelines set forth by the institution where she worked.”).
According to plaintiff, “the law is clear that failure to comply with internal guidelines is ‘some
evidence’ of negligence.” Dkt. No. 65-6 at 20 (citing Pasternack v. Lab’y Corp. of Am., 892 F.
Supp. 2d 540, 555 (S.D.N.Y. 2012)).
But this argument fails for a couple reasons. First off, the guidelines in question expressly
state that they do not “define a standard of care and should not be construed as one” and should
not “be interpreted as prescribing an exclusive course of management.” 	Dkt. No. 55-15 at 2.
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Second, plaintiff’s argument appears to conflate the distinction between treatment guidelines,
which are expressly non-binding, and rules or regulations, which expressly govern certain conduct.
The case on which plaintiff relies is Pasternack, which involved a DOT regulation that
expressly governed certain conduct. While it is true that, under New York law, a party’s deviation
from a rule or regulation can be “some evidence” of negligence, Pasternack, 892 F. Supp. 2d at
555 (collecting cases), that general legal principle does not necessarily have any bearing on
whether clinical guidelines—ones that expressly disclaim having any role whatsoever to play in
defining a standard of care or in recommending a particular course of treatment—can be consid-
ered evidence of anything, let alone evidence tending to show a departure from a standard of care.
Even so, the Court can imagine a legal principle that permits a party to use evidence of
treatment guidelines to inform the standard of care inquiry for a medical malpractice claim. Plain-
tiff’s citation to Pasternack aside, the Court’s own research reveals that this is exactly what state
substantive law permits in this situation.
The New York Court of Appeals has explained that although “[r]ecommendations made in
clinical practice guidelines by professional organizations do not alone determine the standard of
care, . . . an expert witness may rely on those guidelines in evaluating a doctor’s conduct.” Yi v.
N.Y. State Bd. of Pro. Med. Conduct, –N.E.3d–, 2025 WL 1465647, at *3 (N.Y. May 22, 2025)
(cleaned up).
In other words, practice or treatment guidelines can “assist in establishing the relevant
standard of care.” Leberman ex rel. Miller v. Glick, 207 A.D.3d 1203, 1205 (4th Dep’t 2022). But
they do not suffice to establish a standard of care. Halls v. Kiyici, 104 A.D.3d 502, 505 (1st Dep’t
2013). And an expert must do more than merely identify a deviation or deviations from a guideline
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to create a fact dispute on the standard-of-care element. See, e.g., Diaz v. N.Y. Downtown Hosp.,
784 N.E.2d 68, 70 (N.Y. 2002).
Perhaps the best argument that could be made on this record stems from Dr. Cerio’s deci-
sion to prescribe decedent lamotrigine at the final visit on June 24, 2020. Viewing the record in
the light most favorable to plaintiff, the non-movant, the Court accepts as true the proposition that
this medication carried a risk of increased suicidal ideation, particularly within the first two weeks
of administration.7 See, e.g., Dkt. No. 65-6 at 28 (explaining that Dr. Bazzi testified to this in-
creased risk).
The Court likewise accepts as true the proposition that this medication was prescribed
against the backdrop of decedent’s inconsistent self-reports of continued alcohol use to self-med-
icate his anxiety amidst the ongoing pandemic and the attendant disruption to his living situation,
which had significantly exacerbated decedent’s mood disorders. According to Dr. Bazzi, a “rea-
sonable physician” would not have prescribed decedent lamotrigine at this visit “considering his
risk factors and the acuity of his symptoms.”
But even this steelmanned framing of the circumstances would not be enough to get plain-
tiff over the standard-of-care hurdle. Dr. Cerio testified that she was aware that lamotrigine carried
an increased risk of suicide at the time she prescribed the medication to decedent. Dkt. No. 65-1
at 186. She further testified that, in her clinical judgment, the benefit of a new trial treatment for
decedent’s mood disorder outweighed the risk at that time. Id. Defendant’s expert further explains
in detail that, as a matter of psychiatric medical judgment, it may be appropriate to prescribe this
medication on a trial basis to a patient with decedent’s medical history. Annas Op. at 26–27.
7 The Court also accepts as true that Dr. Cerio failed to warn decedent about this increased risk. But plaintiff did
not litigate this case as an informed-consent claim. See generally Dkt. No. 65-6. So this omission, assumed true,
would be only be relevant to analyzing the adequacy of Dr. Cerio’s decision-making under the circumstances.
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In response to this showing, plaintiff’s expert simply opines that Dr. Cerio should not have
prescribed this medication because “it has potential interactions with alcohol” and her decision
“did not take into consideration the surge in anxiety that [decedent] likely experienced when he
stopped drinking, which he did intermittently.” Bazzi Op. at 15–16.
However, as explained supra, courts routinely reject this kind of conflicting expert opinion
on the basis that it amounts to a mere professional disagreement over a course of action, such as
what medication to prescribe for a particular presentation. See, e.g., Weinreb v. Rice, 266 A.D.2d
454, 455 (2d Dep’t 1999) (finding plaintiff’s expert insufficient to establish that defendant-psychi-
atrist’s decision “to discharge the decedent, change his medication, and follow his condition was
something less than a professional medical determination”). Accordingly, defendant is entitled to
summary judgment on plaintiff’s medical malpractice claim.
b. Proximate Cause
Even assuming plaintiff could otherwise show a triable issue of fact as to whether Dr. Cerio
deviated from the accepted standard of care in one or more respects, there is no evidence from
which a fact-finder could reasonably conclude that any of those deviations were a proximate cause
of the harm that occurred, i.e., decedent’s death by suicide.
Briefly stated, proximate cause requires that the injury be a “reasonably foreseeable result
of the negligence.” LaMarca v. United States, 31 F. Supp. 2d 110, 127 (E.D.N.Y. 1998) (cleaned
up); see also Nieves v. City of N.Y., 91 A.D.2d 938, 939 (1st Dep’t 1983) (requiring a showing of
proximate causation based on something more than expert’s “mere speculation”).
Plaintiff has not identified facts in the record that would support this showing. As with the
standard-of-care element of her claim, proximate causation must ordinarily be supported with ex-
pert medical testimony. 	See, e.g., Hegger v. Green, 646 F.2d 22, 28 (2d Cir. 1981). 	And as
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discussed supra, Dr. Bazzi’s opinion on this point is that decedent may not have committed suicide
if Dr. Cerio had treated his alcohol use disorder differently at some point, such as by ordering him
to undergo objective alcohol testing, requiring him to attend in-person appointments during the
pandemic, or by not prescribing him lamotrigine at all. See Dkt. No. 65-6 at 24.
Again, though, this is too vague and conclusory to avoid summary judgment. Recall that
Dr. Cerio last interacted with decedent on June 24, 2020, six days before his death. Plaintiff has
not identified with any reasonable specificity how, at that time, Dr. Cerio’s conduct, individually
or in the aggregate, might have foreseeably led to this outcome. As this Court recently observed
in an unfortunately similar context, “[c]ourts, including the Second Circuit, have concluded that
this kind of generalized or conclusory speculation by a plaintiff’s expert is insufficient to defeat
summary judgment in cases based on an unprevented suicide.” Jappen, 771 F. Supp. 3d at 139
(collecting cases).
There is no genuine dispute of material fact as to proximate cause because decedent’s death
by suicide six days later was not reasonably foreseeable under these circumstances. The record
establishes that decedent reported a middling mental state to Dr. Cerio at his final visit. Dkt. No.
66-1 at 214 (“I don’t feel real good but I’m not horribly depressed.”). Decedent did not report any
suicidal ideation to Dr. Cerio at that time, either. Pl.’s Facts ¶ 218. Instead, decedent reported to
Dr. Cerio that he had been using alcohol to self-medicate on certain occasions and stated that he
had decided to reengage in individual therapy. Dkt. No. 66-1 at 214. Dr. Cerio assessed decedent
and provided supportive psychotherapy at this visit. Id. at 215. She documented decedent’s on-
going alcohol use disorder, this time amending it to reflect that it was no longer in “partial remis-
sion.” Id.
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Based on Dr. Cerio’s evaluation, which accounted for his renewed report of alcohol use,
decedent was not a danger to himself or others and did not qualify for involuntary commitment.
Dkt. No. 66-1 at 215. 	Dr. Cerio discussed several medication options for “mood stabilization”
with decedent based on his recent symptomatology. Pl.’s Facts ¶ 217; Dkt. No. 55-5 at 21. She
selected a trial of lamotrigine and decedent agreed with the treatment plan. See id. Decedent did
not contact Dr. Cerio at any time after this June 24, 2020 visit and there is no indication that Dr.
Cerio knew, or had any reason to know, that decedent and his wife had a fight. Neither decedent
nor anyone else contacted 911, a crisis line, or the VA on his behalf between June 24, 2020 and
his death.
Against that background, decedent’s death six days after his visit with Dr. Cerio was not a
reasonably foreseeable consequence of her medical care and treatment on June 24, 2020. Bazzi
Tr. at 16 (“I can’t read his mind or predict the future and neither can she.”). Thus, as defendant
argues in reply:
Plaintiff [ ] argues that Mr. Balman’s death by suicide on June 30,
2020, should have been foreseeable to Dr. Cerio on June 24, 2020,
due to “several months of increased stressors from the pandemic and
the failure to obtain appropriate psychiatric support and treatment
[from] Dr. Cerio.” Dkt. No. 65-6 at 28. But Plaintiff fails to identify
why on June 24, 2020 (as opposed to any other point in time) Mr.
Balman’s death by suicide six days later was foreseeable. The rec-
ord shows it was not; in the context of his cyclic mood disorders,
Mr. Balman’s presentation was middling (he did not “feel real good”
but was not “horribly depressed”), yet—promisingly—he was reen-
gaged with therapy and willing to try new treatment (Lamotrigine).
Plaintiff’s sweeping theory of causation is faulty, and if adopted,
would mean that causation is automatic whenever the standard of
care is breached in psychiatric malpractice cases.
Dkt. No. 71 at 17. Accordingly, defendant is entitled to summary judgment on plaintiff’s medical
malpractice claim.
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V. 	CONCLUSION
Mr. Balman’s death is a tragedy. 	One is left to wonder if perhaps it could have been
avoided if not for the abrupt disruption to his life wrought by our collective response to the pan-
demic. But that is not the relevant legal inquiry on this motion. Instead, the question is whether
Dr. Cerio failed to exercise medical judgment or take reasonable professional steps to prevent a
reasonably foreseeable suicide. The facts of this case, even when viewed in the light most favor-
able to the non-movant, could not lead a fact-finder to return a plaintiff’s verdict on that question.
Therefore, it is
ORDERED that
1. Defendant’s motion for summary judgment (Dkt. No. 55) is GRANTED;
2. Defendant’s motion to strike (Dkt. No. 57) is DENIED as moot; and
3. Plaintiff’s complaint (Dkt. No. 1) is DISMISSED with prejudice.
The Clerk of the Court is directed to terminate the pending motions, enter a judgment ac-
cordingly, and close the file.
IT IS SO ORDERED.
Dated: March 25, 2026
Utica, New York.
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