Brian E. Lee

Brian E. Lee graduated from Colgate University in 1974 and obtained his law degree from Valparaiso University in 1976. At Valparaiso, he was a member of the Law Review and an article of his was published in that Law Review in 1977. He was licensed to practice law in New York in 1977 and was admitted to practice in the U.S. District Courts for the Southern and Eastern Districts of New York in 1978, the United States Court of Appeals for the Second Circuit in 1992, and the United States Supreme Court in 2014.

Mr. Lee is a member of the American and New York State Bar Associations and the New York County Lawyers Association. He is rated AV® Preeminent™ Peer Review Rated by Martindale-Hubbell®, and has been for over 25 years. Mr. Lee is listed in Who’s Who in America and Who’s Who in American Law. He has been selected to New York Metro SuperLawyers since 2015.

A major portion of his practice involves the representation of mental health professionals in legal actions, professional misconduct proceedings (OPMC and OPD), Justice Center and DEA matters, Title IX investigations, and various risk management matters.

Mr. Lee handles appeals and has extensive experience in the defense of medical malpractice, federal civil rights, products liability, and complex general negligence actions. He handles numerous matters for physicians before the Office of Professional Medical Conduct (OPMC). Additionally, he often handles cases requiring extensive discovery. He regularly lectures to psychiatrists on a variety of risk management topics, has lectured the Association of Hospital Risk Managers on the subject of structured settlements and was a beta tester for the New York State Unified Court System e-courts system.

His clients over the years have included New York Presbyterian Queens, IBM, Macy*s, George A. Fuller Construction Company, and numerous medical malpractice insurance carriers and their clients.

BAR ASSOCIATIONS:
American Bar Association
New York State Bar Association
New York County Lawyers Association

Recent and Selected Appeal Decisions

Moulton-Barrett v. Ascension Health-Is, Inc., 222 A.D.3d 1064, 201 N.Y.S.3d 749 (3d Dep’t 2023).  In a case of first impression in New York, the Appellate Division, Third Department affirmed the dismissal of the action, finding that the decision of the Supreme Court in a discharge proceeding for a guardian of the person of the decedent, collaterally estopped the plaintiff from raising the same issues in a subsequent action for wrongful death, professional malpractice and breach of fiduciary duties.  The issues collaterally estopped included the claimed negligence of the guardian, specifically, that in challenging bills submitted for treatment, and losing that challenge, the plaintiff was precluded from bringing claims of professional negligence against the guardian in the new action.

Bryant v. Iheanacho, 859 F. App’x 604, 605 (2d Cir. 2021) (Second Circuit held that despite plaintiff’s affidavit that the defendant never examined him, plaintiff failed to demonstrate that there was a genuine issue of material fact and held that no rational jury could find in his favor. So finding, the court affirmed summary judgment to our clients based on a narrow exception to the general rule that the District Court may not grant summary judgment based on its assessment of the credibility of the evidence. Court then affirms summary judgment based on the law we set in the McGugan case, below)

Sportelli v Koblenz, 187 A.D.3d 1088 (2d Dep’t 2020) (Second Department reverses denial of summary judgment and dismisses plaintiff’s action based on plaintiff’s neglect to prosecute)

Monte v Vance, 139 S.Ct. 1447 (2019). (United States Supreme Court denies certiorari to plaintiff in a 1983 case inter alia, against our client, an examining psychiatrist based on quasi-judicial immunity for his conduct in evaluating the competency of the plaintiff)

McGugan v Aldana-Bernier, 135 S.Ct. 1703 (2015)(successfully briefed in opposition to plaintiff’s petition for a writ of certiorari to the United States Supreme Court)

McGugan v Aldana-Bernier, 752 F.3d 224 (Second Circuit Court of Appeals 2014)(important decision re-affirming principle that a private psychiatrist who involuntarily admits a patient does not engage in state action sufficient to confer federal jurisdiction)

Waggaman v Arauzo, 117 A.D.3d 724 (2d Dep’t 2014)(affirming dismissal of action against Texas physician for lack of jurisdiction)

Schoolcraft v City of New York, 296 F.R.D. 231, 239-41 (S.D.N.Y. 2014)(prohibits plaintiff’s use of deposition videotapes at time of trial)

Scicchitano v Gerstein, 83 A.D.3d 1040 (2d Dep’t 2011)(affirming defense verdict for defendant psychiatrist)

Jacobs v. Mostow, 69 A.D.3d 575 (2d Dep’t 2010) (affirming dismissal of case against psychiatrist in breach of contract action)

Morris v Queens Long-Island Medical Group, 43 A.D.3D 394(2d Dep’t 2007) (case of first impression barring claims for “capitation” negligence)

Recent Articles for the Professions
SAFE Act Assessment Protocol for Psychiatrists, published March 31, 2014

I-STOP requires mandatory review of a patient’s controlled substance prescription history prior to prescribing effective August 27, 2013,published July 22, 2013

Author of HIPAA/HITECH Breach Assessment Protocol for Psychiatrists, and an associated Breach Assessment Tool to ascertain if there has been a Reportable Breach.

Recent Speaking Engagements

May 5, 2017 Risk Management Seminar on The Justice Center and other topics for Psychiatrists, sponsored by PRMS, New York City

April 8, 2016 Risk Management Seminar on Recent Legal Developments for Psychiatrists, PRMS Seminar, New York City

December 4-5, 2014. Risk Management Presentation on E-Prescribing under I-Stop. PRMS Seminar, Pace College, New York City

April 4, 2014 and April 5, 2015: Risk Management Talks entitled: Ten Things to Improve Your Practice Now. PRMS Excess Insurance Seminar, Pace College, New York City.

June 11, 2013: New York’s SAFE Act: Analysis and Guidance for Psychiatrists. Queens County Psychiatric Society.