Opinion
Index No. 24085/2016E
12-01-2023
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.
Unpublished Opinion
PRESENT: HON. JOSEPH E. CAPELLA, J.S.C.
DECISION/ORDER
JOSEPH E. CAPELLA, JUDGE
The following papers numbered 1 to 3 read on this motion dated March 31, 2023.
PAPERS
NUMBERED
NOTICE OF MOTION
1
ANSWERING AFFIRMATION
2
REPLY AFFIRMATION
3
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
Motion by defendant, Eastchester Rehabilitation and Health Care Center, LLC (Eastchester), for summary judgment (CPLR 3212) and dismissal of plaintiffs complaint, which alleges Public Health Law violations, negligence and gross negligence, is granted. In summary, plaintiffs bill of particulars alleges that during decedent's intermittent stays at Eastchester between July 8, 2014, and May 30, 2015, the nursing staff inappropriately monitored, care planned, treated and failed to promote healing of decedent's pre-existing sacrum, right heel, right ankle and right calf pressure ulcers. Although the bill of particulars state that medical malpractice is not claimed, the aforementioned summary' of alleged sub-par nursing and medical care rendered by Eastchester, which may additionally qualify as Public Health Law violations, goes beyond mere negligence, and is more appropriately labeled as medical malpractice. (Zeides v Hebrew Home, 300 A.D.2d 178 [1st Dept 2002].) For example, plaintiff alleges that decedent, who was ventilator dependent and required a PEG tube for hydration and nutrition, was positioned on his back at certain intervals of time causing undue pressure to his sacral area. This allegation is not the type of care and treatment that could be considered administrative in nature, but refers to a professional standard of care. (Miller v Albany, 95 A.D.2d 977 [3rd Dept 1983].) Setting this issue aside for now, the bill of particulars goes on to allege that as a result of said failures, decedent suffered various injuries, such as sepsis, c.diff, hyponatremia, hypokalemia, MRSA, aspiration pneumonia and death.
The initial burden is on Eastchester 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. In support of the motion is an expert affirmation by Dr. Lawrence Diamond, who is board certified in Family and Geriatric Medicine. Dr. Diamond opines that there were no departures in the care and treatment rendered by Eastchester that proximately caused and/or contributed to his alleged injuries and death. For example, he notes that upon admission, a comprehensive care plan was developed that included turning and positioning, and wound care precautions. He also notes that by the time of his admission, decedent's sacral wound had been persisting for over two years, had deteriorated to a point where it was now Stage IV, and had required multiple surgical debridements. Couple this with decedent's vegetative status and comorbidities, including acute respiratory failure, hypertension congestive heart failure, diabetes, incontinent of bladder and bowel, and non-verbal state, Dr. Diamond opines that decedent's wound was never going to heal.
As for plaintiff s contention that decedent should not have been positioned on his back as he had a sacral wound. Dr. Diamond disagrees with this contention. He states that decedent was on a PEG tube for feeding and hydration, a ventilator for breathing and was bedbound; therefore, he was required to have periods in which he was on his back or applying a certain amount of pressure on the sacral area. Dr. Diamond explains that when patients like decedent on ventilators lie on their backs, they do so in a position known as supine with the head of the bed raised between 30-45 degrees. A PEG feeding tube insertion is the placement of a feeding tube through the skin and stomach wall. During any feeding, it is ideal that the patient be placed in a high supine position at 45 - 90 degrees, and the knees either straight or slightly bent to assist in the breathing and digestion of food. As decedent was on both a ventilator and PEG tube, he was required to occasionally lie on his back. With that said, Eastchester still managed to turn and position decedent to relieve pressure directly on the sacral area. This was done by using wedge pillows for positioning, and the pillows would be tucked under either side of decedent. If a pillow is tucked under the right side of decedent, then he would be considered to be on his left, and vice versa. According to Dr. Diamond, this is the appropriate method to comfortably turn and position decedent with his ventilator and PEG tube.
Eastchester also notes that as decedent died May 30, 2015, and the instant summons and complaint was filed September 26, 2017, plaintiffs wrongful death claim is time barred by the two-year statute of limitations. (EPTL § 5-4.1.) Lastly, Eastchester notes that the records and bill of particulars are devoid of any conduct, actual or alleged, that rises to the level of gross negligence. In order to state such a cause of action, there must be facts (emphasis added) that demonstrate and/or rises to the level of willful or wanton negligence or recklessness. (Rosenberg v Mallilo, 39 A.D.3d 335 [1st Dept 2007]; Mancuso v Rubin, 52 A.D.3d 580 [2d Dept 2008].) Here, plaintiffs claims center around the alleged failure to monitor, care and treat decedent's pressure ulcers. While these allegations may demonstrate negligence, they do not rise to the level of willful conduct that evidences a high degree of moral culpability. (Rey v Park, 262 A.D.2d [2d Dept 1999].) Based the aforementioned, the Court is satisfied that Eastchester 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 provides an expert affidavit from Darlene Parks, a registered nurse, who opines that Eastchester "breached the standard of care with respect to prevention, identification, assessment, management and treatment of pressure ulcers, incontinence management, wound infection prevention, and resident safety." Specifically, Nurse Parks opines that decedent was consistently and repeatedly positioned on his back causing unnecessary pressure to his sacral ulceration. For example, Nurse Parks states that in October 2014, decedent was maintained on his back for three consecutive turn and position cycles from 6 to 10 pm. And in November 2014, decedent was on his back for the 8 pm and 10 pm turn cycles on the 8, 9, 13, 17, 19, 26 and 27. According to Nurse Parks, this also occurred on February 9, 12, 20, 26, 27, April 17, 24, May 14, 22, 24 and 29 of 2015. She states that these "recurrent grossly neglectful pressure offloading practices resulted in at least four hours of prolonged and sustained sacral pressure . . . [and decedent's] right to professional quality of care in accordance with current standards of practice was violated." As mentioned earlier, these allegations raised by plaintiff are not mere negligence, and Nurse Parks reference to standards of nursing practice further confirms that this is more appropriately classified as malpractice.
In opposing Dr. Diamond. Nurse Parks must address his opinions and opine to a reasonable degree of nursing certainty that Eastchester departed from the standard of care, and that such departure was a proximate cause of plaintiffs injuries. (Mortensen v Memorial, 105 A.D.2d 151 [1st Dept 1984]). Here. Nurse Parks does not describe what, if any, sections of the Public Health Law were violated, nor does she address wrongful death. Essentially she alleges that Eastchester allowed decedent to be left on his back for two-hour cycles on various days, resulting in the wounds being subjected to prolonged and sustained pressure. She does not address Dr. Diamond's opinion that given decedent's vegetative status and comorbidities, including acute respiratory failure, hypertension congestive heart failure, diabetes, incontinent of bladder and bowel, and non-verbal state, decedent's wound was never going to heal. Nor does she address Dr. Diamond's opinion that as decedent was on a PEG tube for feeding and hydration, a ventilator for breathing and was bedbound, he was required to have some times in which he was on his back or applying a certain amount of pressure on the sacral area.
Lastly, Nurse Parks does not address Dr. Diamond's opinion that despite the aforementioned. Eastchester still managed to turn and position decedent to relieve pressure directly on the sacral area. According to Dr. Diamond, this was done by using wedge pillow for positioning, which he says is the appropriate method to comfortably turn and position patients with a ventilator and PEG tube. Overall, even viewing the evidence in a light most favorable to plaintiff, (O'Sullivan v Presbyterian, 217 A.D.2d 98 [1st Dept 1995]), the Court is satisfied that Nurse Park's conclusory and speculative opinions, (Choida v Schirripa, 188 A.D.3d 978 [2d Dept 2020]), are insufficient to defeat Eastchester's summary judgment motion. (Oates v Marino, 106 A.D.2d 289 [1st Dept 1984].) Therefore, the motion for summary judgment is granted, and the instant action is dismissed as against Eastchester. The clerk is directed to enter judgment in Eastchester'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.