Opinion
Index No. 24085/16
12-18-2023
Martin Aina, as Administrator of the Estate of MARTINS AINA, Deceased, Plaintiff, v. Jopal Bronx, LLC, JOPAL BRONX, LLC, d/b/a WORKMEN'S CIRCLE MULTICARE CENTER, WORKMEN'S CIRCLE MULTICARE CENTER, WORKMEN'S CIRCLE HOME PARENT, INC., WORKMEN'S CIRCLE HOME WECARE, INC., WORKMEN'S CIRCLE HOME NURSING ASSOC., INC., EASTCHESTER REHABILITATION AND HEALTHCARE CENTER, LLC, ET. AL., Defendants.
Plaintiff's Attorney Gerard Ryan, Esq. Parker Waichman LLP Montefiore's Attorney Ryne Duchmann, Esq. Yoeli Gottlieb & Etra LLP
Unpublished Opinion
Plaintiff's Attorney
Gerard Ryan, Esq.
Parker Waichman LLP
Montefiore's Attorney
Ryne Duchmann, Esq.
Yoeli Gottlieb & Etra LLP
Joseph E. Capella, J.
The following papers numbered 1 to 3 read on this motion dated March 30, 2023.
PAPERS/NUMBERED
NOTICE OF MOTION & MEMO OF LAW
1
ANSWERING AFFIRMATION
2
REPLY MEMO OF LAW
3
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
Motion by defendant, Montefiore Medical Center (Montefiore), for summary judgment (CPLR 3212) and dismissal of plaintiff's complaint, which alleges medical malpractice and wrongful death, is granted. Essentially plaintiff alleges that decedent's pressure ulcers were caused by Montefiore. Decedent was a resident of Workmen's Circle Multicare Center (Workmen's Circle) who was brought to Montefiore on a variety of occasions for medical treatment. There are eight dates of treatment that are relevant to plaintiff's action, and they are December 20, 2013, January 27, March 7, April 9, May 20, June 3, September 2, 2014, and March 31, 2015. On December 20, 2013, decedent was found at Workmen's Circle unresponsive, with left side facial drooping and altered mental status. He was brought to Montefiore's emergency room and was treated for bilateral pulmonary emboli, right lower extremity deep-vein thrombosis, and a c-difficile infection. On January 16, 2014, decedent was discharged back to Workmen's Circle with no plan for scheduled follow-up at Montefiore but instructed to see his primary doctor at the nursing home.
On January 27, 2014, decedent was brought to Montefiore's emergency room for evaluation of a fever and lethargy. During this admission, decedent was treated for atrial-fibrillation, hyponatremia, and possible sepsis, and underwent debridement of a sacral ulcer. On March 5, 2014, decedent was discharged to Bronx Park Rehab with no scheduled follow-up appointment at Montefiore, but was instructed to see a primary care doctor at Bronx Park Rehab. On March 7, 2014, decedent admitted to Montefiore for evaluation of a fever, possible sepsis and a-fib. And on March 18, 2014, decedent was discharged back to Bronx Park Rehab with instructions to see his primary care physician. On April 9, 2014, decedent was admitted to Montefiore for treatment of atrial-fibrillation, hypernatremia, UTI and anti-coagulant management. Decedent was discharged on April 15, 2014, to Bronx Park Rehab with instructions to see his primary care physician. On May 20, 2014, decedent was admitted to Montefiore for treatment of hypernatremia and possible infection. On May 30, 2014, decedent was discharged back to Bronx Park Rehab with instructions to see his primary care physician.
On June 3, 2014, decedent was admitted to Montefiore for treatment of respiratory distress, sepsis and recurrent atrial fibrillation with RVR. He was discharged to Eastchester Rehabilitation and Health Care Center (Eastchester) on July 8, 2014, with instructions to see his primary care physician. On September 2, 2014, decedent was admitted to Montefiore and treated with IV antibiotics for possible pneumonia aspiration. Decedent was discharged to Eastchester on September 9, 2014, with instructions to see his primary care physician and pulmonologist. Lastly, on March 31, 2015, decedent was admitted to Montefiore for evaluation of a fever, and a chest x-ray revealed right lower-lobe infiltrate. A skin evaluation was performed which noted a state IV sacral decubitus ulcer measuring 10 cm x 10 cm, a stage IV decubitus ulcer on the right heel measuring 2 cm x 2 cm, and a stage IV decubitus ulcer on the outer aspect of the right lower leg measuring 8 cm x 25 cm. Decedent was eventually discharged to Eastchester on April 12, 2015, with instructions to see his primary care physician.
The initial burden is on Montefiore to make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 N.Y.2d 320 [1986].) If it does, then the burden shifts to plaintiff to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (Alvarez, 68 N.Y.2d 320), and denial of summary judgment. According to Montefiore, given that decedent died on May 30, 2015, and this action was commenced more than two years later on September 26, 2017, plaintiff's wrongful death claim is time barred by the two-year statute of limitations. (EPTL § 5-4.1.) In addition, an action for medical malpractice must be commenced within two years and six months of the act, omission or failure, or the last treatment where there has been continuous treatment. (CPLR 214-(a).) Two years and six months before commencing this action is March 26, 2015; therefore, any malpractice that occurred prior to this date are time-barred. As previously noted, the dates of alleged malpractice include May 9, 2013, through September 2, 2014, and these dates are beyond the statute of limitations period. Only the eighth date of admission (i.e., March 31, 2015) is within the statute of limitations period.
As for the admission of March 31, 2015, Montefiore provides an expert affirmation from Dr. Amit Uppal, who is board certified in critical care, and an expert affidavit from Nurse Lena Rome, who both opine that the care and treatment rendered was in accordance with good and accepted medical practice. Dr. Uppal notes that decedent was seen by an internist and infectious disease specialist every day, each of whom performed a thorough assessment. He goes on to note the following. Decedent was non-verbal and on a ventilator, so a history could not be taken from the patient directly and instead the staff relied on the medical records and family members. Decedent was seen by the nursing staff and attending physicians every day, and all appropriate testing was ordered and follow-up consults were performed. Montefiore's wound care physician, Dr. Bulauitan, performed a full wound care assessment on April 2, 2015, and determined that the sacral ulcer did not need debridement. Decedent was seen by a registered dietician and steps were taken to improve decedent's nutritional status.
According to Dr. Uppal, decedent was an exceptionally high risk patient for poor wound healing due to his vegetative state and poor nutritional status, and it was very unlikely that the wounds would fully heal even with the best of care. Lastly, he notes that infectious disease recommended antibiotic therapy, which was timely implemented, and decedent's condition improved as evidenced by the normalization of his heart rate and decreasing temperature. It is Dr. Uppal's opinion that given the aforementioned, the medical care provided to decedent during the March 31 through April 12, 2015, admission was well within the standard of care. Nurse Rome's opinions are similar to Dr. Uppal's in that she states that all appropriate measures were taken to prevent the development of new skin damage and to help promote healing. Based on the aforementioned, the Court is satisfied that Montefiore has met its burden for summary judgment, (Zuckerman v City of NY, 49 N.Y.2d 557 [1980]; Kaffka v NY Hospital, 228 A.D.2d 332 [1st Dept 1996]), which now shifts to plaintiff to demonstrate that issues of fact exist to warrant a trial.
In opposition, plaintiff must provide, inter alia, an affidavit and/or affirmation from an expert(s) who opines to a reasonable degree of medical certainty that Montefiore departed from the standard of care, and that such departure was a proximate cause of decedent's injuries. (Mortensen v Memorial, 105 A.D.2d 151 [1st Dept 1984].) Plaintiff's expert must also address the specific assertions made by Montefiore's experts, (Lowe v Japal, 170 A.D.3d 701 [2d Dept 2018]), and set forth a specific departure(s) that proximately caused decedent's injuries. (Amsler v Verrilli, 119 A.D.2d 786 [2d Dept 1986].) In opposition, plaintiff first argues that the medical malpractice claims are not barred by the statute of limitation due to the continuous treatment doctrine. Said doctrine states that the statute of limitations for a medical malpractice action is tolled when there is a course of treatment that has run continuously and is related to the same original condition or complaint. (Borgia v City of New York, 12 N.Y.2d 151 [1962].) According to plaintiff, during the admissions of January 27, March 7, April 9, May 20, June 3, September 2 and March 31, decedent received treatment for, inter alia, his various ulcers. It is plaintiff's position that this continuous treatment of decedent's ulcers by Montefiore tolled the medical malpractice statute of limitations.
Plaintiff also provides an expert affidavit from Darlene Parks, a registered nurse, who opines that Montefiore breached the standard of care with respect to prevention, identification, assessment, management and treatment of pressure ulcers, incontinence management, wound infection prevention and safety. According to Nurse Parks, at "the time of post-hospitalization readmission to Workman's Circle from [Montefiore] on January 16, 2014, several hospital-acquired pressure ulcers were identified, sepcifically: (a) redness on left outer ankle, (b) right outer ankle - DTI, 1 x 1, (c) right heel - DTI 2 x 2, (d) right lower knee - scab, 1 x 1, [and] (e) hyper-pigmentation to bilateral buttocks." Nurse Parks opines that Montefiore failed to provide care in a manner that prevented the development of numerous skin impairments and pressure ulcerations. However, Nurse Parks fails to address the fact that decedent was not sent to Montefiore for treatment of his skin impairments and pressure ulcers. Despite this, there is no dispute that during decedent's various admissions, Montefiore did provide care and treatment to his skin impairments and pressure ulcers. Nurse Parks does not specifically address how the care and treatment provided by Montefiore to decedent's skin impairments and pressure ulcers was deficient, nor does she describe what alternative treatments should have been provided. Overall, Nurse Park's opinions are conclusory, speculative and do not sufficiently address the findings and opinions of Montefiore's expert, Dr. Uppal (Choida v Schirripa, 188 A.D.3d 978 [2d Dept 2020]).
As for plaintiff's allegation that the continuous treatment doctrine tolled the statute of limitation, it must be noted that essential to the application of said doctrine is the establishment of a course of treatment with respect to a relevant condition, and the mere continuing relation between decedent and Montefiore (or the continuing nature of a diagnosis) is insufficient to invoke same. (Cohen v Gold, 165 A.D.3d 879 [2d Dept 2018].) The burden is on plaintiff to establish that decedent continued to seek (and obtained) an actual course of treatment from Montefiore during the relevant period, the course of treatment was for the same condition(s) or complaints underlying the medical malpractice claim, and the treatment was continuous. (Proano v Gutman, 211 A.D.3d 978 [2d Dept 2022].) Further treatment must be explicitly anticipated by both decedent and Montefiore, which may be demonstrated by a future scheduled appointment(s) for treatment of the same condition. (Kaufman v Fulop, 47 A.D.3d 682 [2d Dept 2008].) As Montefiore correctly notes, decedent was never brought to its facility for the treatment of wounds, but rather, his various admissions were prompted by discrete, emergent medical issues such as being found unresponsive or in septic shock. The mere fact that decedent also received wound care during the various admissions does not mean that it falls within the continuous treatment doctrine. In addition, decedent never requested nor was given a follow-up appointment by Montefiore. Given the aforementioned, the Court is satisfied that the continuous treatment doctrine does not apply.
The motion for summary judgment is granted, this action is dismissed as against Montefiore, and the clerk is directed to enter judgment in Montefiore's favor. Eastchester is directed to serve a copy of this decision with notice of entry by first class mail upon plaintiff within 30 days of receipt of copy of same. This constitutes the decision and order of this court.