Opinion
Index No: 512335/2018
02-23-2021
EDMON DARRISAW, as Administrator of the Estate of JANICE DARRISAW, Plaintiff, v. INTERFAITH MEDICAL CENTER, Defendant.
NYSCEF DOC. NO. 50 At an IAS Term, Part 15 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 23rd day of February 2021. PRESENT: HON. PAMELA L. FISHER, J.S.C. DECISION/ORDER Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
| Papers Numbered | |
|---|---|
| Notice of Motion/Cross Motion/Order to Show Cause andAffidavits (Affirmations) Annexed | 1, 2 |
| Opposing Affidavits (Affirmations) | 3 |
| Reply Affidavits (Affirmations) | 4 |
Upon the foregoing papers in this medical malpractice action, defendant moves for an order: (1) dismissing plaintiff's claims prior to December 14, 2015 as barred by the statute of limitations, pursuant to CPLR §214(a); (2) dismissing any wrongful death cause of action as barred by the applicable statute of limitations, pursuant to EPTL §5-4.1; and (3) granting defendant summary judgment, dismissing plaintiff's complaint in its entirety. In the alternative, defendant moves to consolidate this action with the action commenced by the plaintiff under Index #500700/2018, pursuant to CPLR §602(a).
Plaintiff commenced a medical malpractice action under Index #500700/2018 against Cabs Nursing Home Company, Inc., Nostrand Center for Nursing and Rehabilitation, and NNRC, LLC by filing a summons, complaint, and certificate of merit on January 12, 2018 (Summons & Complaint, annexed as Exhibit B to defendant's motion papers). NNRC, LLC was served in that action on March 27, 2018, no answer was ever filed, and no default judgment was ever secured (Affidavit of Service, annexed as Exhibit C to defendant's motion papers). None of the other defendants were served; no request for an extension of time to serve was ever filed, and no RJI was ever filed. On June 14, 2018, plaintiff commenced this action against defendant Interfaith Medical Center by filing a summons, complaint, and certificate of merit (Summons & Complaint, NYSCEF #1). Issue was joined on September 28, 2018, and plaintiff filed the Note of Issue on July 8, 2020 (NYSCEF # 3, 30). In his complaint, plaintiff alleges that defendant deviated from the standard of care from November 17, 2015 to January 18, 2016, by failing to prevent decedent's pressure ulcers, allowing her "medical condition to deteriorate," and negligently treating her condition, resulting in her death (Complaint ¶¶ 9, 11). Specifically, in his bill of particulars, plaintiff contends that defendant committed medical malpractice by "failing to perform a proper risk assessment of plaintiff for development of pressure ulcers," and "failing to turn and position the decedent every two hours and as needed" (Plaintiff's bill of particulars, ¶ 3(b), annexed as Exhibit D to defendant's motion papers). Plaintiff further maintains that defendant "fail[ed] to properly monitor and treat the decedent's multiple pressure ulcers," failed to "keep accurate records of the treatment rendered to plaintiff's decedent," and erred in not modifying her treatment as her medical condition deteriorated (Id.). As a result of defendant's negligence, plaintiff indicates that decedent sustained the following injuries: sacral pressure ulcer, right heel pressure ulcer, right hip pressure ulcer, right ankle pressure ulcer, left ankle pressure ulcer, right knee pressure ulcer, left foot pressure ulcer, left shin pressure ulcer, left 2nd dorsal toe pressure ulcer, left 3rd dorsal toe pressure ulcer, debridements, sepsis, infection, necrosis, deep tissue injury, dehydration, malnutrition, emotional trauma, pain and suffering, and death (Id. at ¶ 11).
The following facts are not in dispute. Ms. Darrisaw was transferred from CABS Nursing Home to the Emergency Room at Interfaith Medical Center on January 15, 2015 "due to shortness of breath and to rule out aspiration pneumonia" (Defendant's Expert Affirmation ¶ 9, annexed as Exhibit A to defendant's motion papers). At the time of admission, decedent had several preexisting conditions, including multisystem organ failure, hypertension, Type II diabetes, Stage 3 chronic kidney disease, morbid obesity, seizure disorder, pressure ulcers with history of debridements, and a PEG tube due to dysphagia (Id.). A nurse's note from January 15, 2015 indicates that Ms. Darrisaw had multiple pressure ulcers at the time of admission, including a "right popliteal fossa Stage II ulcer that was 1 cm x 1 cm with pink granulation tissue and no drainage, a right trochanter Stage IV ulcer that was 6 cm x 2 cm with tunneling of 3 cm x 2 cm that was malodorous, and a sacral coccyx ulcer that was Stage IV, 7 cm x 5 cm x 2 cm x 1 cm in size with tunneling and malodorous with drainage" (Id. at ¶ 10). Her pressure ulcers were treated by daily dressing changes, use of an air mattress, and repositioning her every two hours (Id). Ms. Darrisaw was discharged back to CABS on January 30, 2015, and she was readmitted to Interfaith several times over the next year due to a variety of conditions, including sepsis, high blood sugar, abnormal laboratory values, and respiratory distress and hypotension (Id. at ¶¶ 14, 15, 21, 27, 38, 45). During each of these admissions, defendant treated decedent's pressure ulcers (Id. at ¶¶ 17, 21, 28, 38, 47). Decedent was admitted to Interfaith on six occasions: January 15, 2015-January 30, 2015, February 22, 2015-March 2, 2015, October 3, 2015-November 5, 2015, November 17, 2015-December 3, 2015, December 8, 2015-December 18, 2015, and December 31, 2015-January 18, 2016 (Id. at ¶ 55). Out of the six admissions, the first three admissions are not relevant to this action, because they are not pleaded in the bill of particulars. Defendant is not contesting that the sixth admission is within the statute of limitations, so only the fourth and part of the fifth admission are at issue. Decedent was transferred from CABS Nursing Home to Interfaith for the first four admissions (Id. at ¶¶ 9, 15, 21, 27). Subsequent to plaintiff's admission to Bushwick Center for Rehabilitation and Nursing on December 3, 2015, she was then transferred back to Interfaith for the fifth and sixth admissions (Id. at ¶¶ 35, 37, 38, 45).
Plaintiff's claims against defendant for medical malpractice and negligence between November 17, 2015 and January 18, 2016, that pertain to the treatment of pressure ulcers during the last three admissions will be described in detail (Complaint ¶ 2). During the admission that occurred on November 17, plaintiff's wounds were treated by applying Bacitracin to her superficial wounds, Aquacel foam to her Stage III-IV ulcers, and she was supposed to be turned and positioned every two hours (Defendant's Expert Affirmation ¶¶ 28, 70). Plaintiff's wound cultures "were positive for multiple drug resistant (MDR) organisms," and she was treated with Vancomycin, Zosyn, and Meropenem (Id. at ¶ 69). During the 5th and 6th admissions (December 8, 2015-December 18, 2015 and December 31, 2015-January 18, 2016), plaintiff's wounds were treated by applying Bacitracin to her superficial wounds, Aquacel foam and collagenase to her Stage III-IV and unstageable ulcers, and she was supposed to be turned and positioned every two hours (Id. at ¶¶ 38, 47, 75, 80). During the fifth admission, plaintiff was diagnosed with "sepsis secondary to infected decubiti," and she received antibiotics intravenously (Id. at ¶ 74). Her "buttock wound culture was noted to have MDR Klebsiella pneumoniae," and she was treated with Amikacin and Tigecylcine until her discharge (Id.). On December 17, 2015, decedent "underwent a surgical debridement of the right heel ulcer and the right hip ulcers" (Id.). During the sixth admission, Ms. Darrisaw's "blood culture was positive for Klebsiella secondary to infected decubiti on her buttocks and right foot" (Id. at ¶ 79). She was treated with antibiotics, and she underwent a debridement of the right hip and heel ulcers and a calcanectomy of the right heel and right trochanter on January 6, 2016 (Id.). On January 18, 2016, plaintiff was "unresponsive with no pulse and no blood pressure;" employees at Interfaith Medical Center attempted to resuscitate her, and she was pronounced dead at 9:19 PM (Id. at ¶ 51).
In support of defendant's motion to dismiss plaintiff's claims prior to December 14, 2015, defendant maintains that the statute of limitations for a medical malpractice action is two years and six months, and the continuous treatment doctrine does not apply to toll the statute of limitations (Defendant's Affirmation in Support ¶ 27). Defendant further alleges that its treatment of the plaintiff was not continuous, since plaintiff was admitted to Interfaith for a variety of different conditions between January 2015 and January 2016; "further treatment by Interfaith" was not "anticipated at discharge," and the "decedent was treated by different providers in between her presentations at Interfaith Medical Center" (Id. at ¶¶ 28, 29, 31). In opposition, plaintiff contends that his claims prior to December 14, 2015 are not time barred, because defendant treated plaintiff's pressure ulcers during each admission, and she was often treated by the same physicians during each admission (Plaintiff's Affirmation in Opposition ¶¶ 121, 123). In reply, defendant reiterates that plaintiff was not admitted to Interfaith to treat her pressure ulcers, and no further treatment was anticipated at discharge (Defendant's Reply Affirmation ¶ 11).
In support of defendant's motion to dismiss plaintiff's wrongful death cause of action, defendant maintains that a wrongful death cause of action must be commenced within two years of decedent's death, and therefore, plaintiff's claim is time barred (Defendant's Affirmation in Support ¶¶ 32-33). In opposition, plaintiff disputes that he has brought a cause of action for wrongful death; he alleges that his complaint merely states causes of action for medical malpractice and negligence (Plaintiff's Affirmation in Opposition ¶ 126).
In support of defendant's motion for summary judgment, defendant submits an expert affirmation from Dr. Jeffrey Levine, M.D., a physician board certified in internal medicine, geriatric medicine, Certified Wound Specialist-Physician (CWSP), and a certified medical director, contending that defendant never departed from the appropriate standard of care (Defendant's Expert Affirmation ¶ 1). Dr. Levine's opinion is based on review of the pleadings, bill of particulars, medical record, and plaintiff's deposition testimony (Id. at ¶ 6). Dr. Levine indicates that he believes that Interfaith appropriately treated Ms. Darrisaw's pressure ulcers, and that "the care she received at CABS significantly impacted the extent to which the providers at Interfaith were able to manage and heal her pressure injuries" (Id. at ¶ 56). Dr. Levine notes that during all of her admissions to Interfaith, decedent was "bedbound and suffering from end stage kidney disease, hypertension, poorly managed Type II diabetes mellitus, seizure disorder, and anemia" (Id.). He explains that the fact that Ms. Darrisaw arrived to Interfaith from CABS in a severely dehydrated and malnourished state during her first four admissions could have compromised defendant's ability to treat decedent's pressure injuries, as "nutrition and hydration are critical to prevention, treatment and healing of pressure injuries" (Id.). Dr. Levine concludes that defendant was not responsible for decedent's pressure ulcers, as she presented with "advanced and infected pressure injuries that had already undergone multiple debridements and treatments" at the time of her first admission to Interfaith (Id. at 57). He alleges that the advanced stage of decedent's pressure injuries, her lack of mobility and underlying conditions made healing of her pressure ulcers "difficult and often impossible" (Id.).
Specifically, as to the November 17, 2015 admission, Dr. Levine contends that decedent's "wounds were properly examined and described in detail at regular intervals;" her wounds were properly treated with "Bacitracin, Aquacel foam and dressing," and she was "properly turned and positioned" (Id. at ¶ 70). Dr. Levine indicates that the treatment decedent received at Interfaith during her fifth admission from December 8-18, 2015 was within the standard of care, as the appropriate infectious disease, renal and surgical consults were obtained in order to treat decedent's sepsis infection, and a surgical debridement of the right heel and hip ulcers was necessary to treat her pressure injuries (Id. at ¶ 74). He further maintains that her pressure ulcers were appropriately treated by proper hydration and repositioning her during this admission, and "cleansing [the wounds] daily with Bacitracin for her superficial wounds and with Aquacel foam and collagenase for the Stage III to IV and unstageable ulcers" (Id. at ¶ 75). He states that her "ulcers were properly monitored and documented" (Id.). Dr. Levine affirms that upon her sixth admission to Interfaith on December 31, 2015 for sepsis, decedent's condition was terminal, and she was suffering from multisystem organ failure (Id. at 78). He maintains that appropriate consultations were obtained, and the debridement of the right hip and heel ulcers, and calcanectomy of the right heel and right trochanter were "consistent with the appropriate standard of care" (Id. at ¶ 79). He notes that Ms. Darrisaw was transfused with packed red blood cells multiple times during this admission due to "an acute drop in her hemoglobin and hematocrit levels" (Id.) The same wound treatment that was used during the fifth admission (December 8-18, 2015) was followed during this admission (Id. at ¶ 80). Dr. Levine concludes that no act or omission of the defendant contributed to the decedent's death (Id. at ¶ 84).
In opposition to defendant's motion for summary judgment, plaintiff submits a redacted expert affirmation from a physician board certified in internal medicine and geriatric medicine, who concludes that defendant departed from the standard of care, and that this departure proximately caused the deterioration of plaintiff's pressure ulcers (Plaintiff's Expert Affirmation ¶¶ 1, 5, annexed as Exhibit 1 to plaintiff's motion papers). Plaintiff's expert opinion is based on review of the medical records, pleadings, bill of particulars, and plaintiff's deposition testimony (Id. at ¶ 4). Plaintiff's expert contends that defendant departed from good and acceptable medical practice by failing to "accurately and consistently stage and/or size the plaintiff's decedent's pressure ulcers throughout the medical record" (Id. at ¶ 77). In support of this claim, plaintiff's expert points out instances of variation in the measurement of decedent's pressure ulcers in the medical record. For example, on November 17, 2015, the medical record states that decedent had a Stage IV sacral pressure ulcer measuring 6 cm x 6 cm x 2 cm, a Stage IV right hip pressure ulcer measuring 6 cm x 3 cm x 1 cm, but a note taken that same day documented that decedent had a Stage IV sacral pressure ulcer measuring 5 cm x 6 cm x 2 cm, and a Stage IV right hip pressure ulcer measuring 4 cm x 2 cm x 1 cm (Id. at ¶ 76). Plaintiff's expert also maintains that defendant deviated from the standard of care by failing to turn and position plaintiff every two hours (Id. at ¶ 79). He/she points out instances in the medical record, where plaintiff is documented in one position for more than two hours. For example, on November 20, 2015, "plaintiff's decedent was on her left side for nearly four hours from 2:08 PM through 6:07 PM, and on her left side for five hours from 8:00 PM through 1:00 a.m. the next day on November 21, 2015" (Id.). Plaintiff's expert concludes that defendant's failure to properly turn and position decedent proximately caused the deterioration of her pressure ulcers, as "frequent turning and positioning of patients in hospitals, particularly those susceptible of developing pressure ulcers, is critical as it distributes pressure to different parts of the body so that no one part receives pressure for any great deal of time" (Id. at ¶¶ 78, 83). Plaintiff's expert disputes Dr. Levine's contention that the deterioration of plaintiff's pressure ulcers was unavoidable, explaining that pressure ulcers are caused by unrelieved pressure, not plaintiff's "co-morbidities" (Id. at ¶¶ 86, 88, 89, 90).
In reply, defendant has submitted another affirmation from Dr. Levine, who reiterates that defendant's treatment of plaintiff was within the standard of care (Defendant's Reply Expert Affirmation ¶ 4, annexed as Exhibit A to defendant's reply papers). In response to plaintiff's contentions that defendant failed to accurately document decedent's pressure injuries, Dr. Levine contends that plaintiff's expert has failed to account for "interrater variability, which represents the normal variance inherent in all measurements of pressure injuries" (Id. at ¶ 24). Dr. Levine explains that "when different providers manipulate and put pressure on body tissue so as to move the patient in order to access a pressure injury for purposes of treatment or measurement, same can cause the patient's body tissue to stretch or contract yielding a variance in successive measurements by different providers" (Id. at ¶ 25). Dr. Levine indicates that measurements can vary by 2 to 4 cm (Id.). Further, he maintains that these variations in the measurements had no impact on the "treatment or outcome" of decedent's pressure injuries (Id. at ¶ 28). In response to plaintiff's argument that Ms. Darrisaw should have been turned and repositioned more frequently, Dr. Levine claims that "more frequent repositioning would have had no material impact on the outcome of her pressure injuries during her six admissions to Interfaith" (Id. at ¶ 10).
Pursuant to CPLR §214(a), a "medical malpractice claim generally accrues on the date of the alleged wrongful act or omission and is governed by a 2 ½ year Statute of Limitations" (Nykorchuck v. Henriques, 78 NY2d 255, 258 [1991]). However, if the continuous treatment doctrine applies, the statute of limitations is tolled until "the end of the course of treatment" (Id.). This doctrine applies "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (Id.). In other words, there must be a "course of treatment established with respect to the condition that gives rise to the lawsuit;" "neither the mere continuing relation between physician and patient nor the continuing nature of a diagnosis is sufficient to satisfy the requirements of the doctrine" (Id. at 258-59). Policy reasons for the adoption of this doctrine include the fact that "it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit" (Id. at 258).
Pursuant to EPTL §5-4.1, a cause of action for wrongful death must be commenced within two years of the decedent's death (EPTL §5-4.1).
To prevail on a cause of action for medical malpractice, the plaintiff must prove that defendant "departed from good and accepted standards of medical practice and that the departure was the proximate cause of the injury or damage" (Biggs v. Mary Immaculate Hosp., 303 AD2d 702, 703 [2d. Dept. 2003]). On a motion for summary judgment, defendant "has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Rebozo v. Wilen, 41 AD3d 457, 458 [2d. Dept. 2007]). Once the defendant meets its burden, "the burden then shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit attesting to a departure from accepted practice and containing an opinion that the defendant's acts or omissions were a competent producing cause of the injury" (Johnson v. Queens-Long Is. Med. Group, P.C., 23 AD3d 525, 526 [2d. Dept. 2005]). Conclusory allegations that are "unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment" (Rebozo, 41 AD3d at 458). Where the parties have submitted conflicting expert reports, summary judgment should not be granted (Dandrea v. Hertz, 23 AD3d 332, 333 [2d. Dept. 2005]).
Defendant's motion to dismiss plaintiff's claims prior to December 14, 2015, pursuant to CPLR §214(a) is denied, as there are questions of fact regarding whether the continuous treatment doctrine is applicable to defendant's treatment of plaintiff's pressure ulcers. If the continuous treatment doctrine does not apply, plaintiff would be precluded from bringing claims regarding the fourth admission from November 17, 2015-December 3, 2015 and for part of the fifth admission from December 8-Deecember 13, 2015. This court declines to exclude part of an admission, since defendant's treatment of plaintiff was continuous during the entire admission. Although defendant relies on the fact that plaintiff sought treatment at the defendant hospital for various conditions between January 2015 and January 2016, the hospital treated her pressure ulcers during each admission, indicating that there was a "course of treatment established with respect to the condition that gives rise to the lawsuit" (Nykorchuck, 78 NY2d at 258-59; McDermott v. Torre, 56 NY2d 399, 404, 406 [1982] (denying summary judgment motion where defendant removed mole from plaintiff's ankle, and plaintiff returned to defendant with other complaints, but also "complained about continued pain and a grayish color in her ankle"); see also Labshere v. Petroski, 32 AD3d 645, 647 [3d. Dept. 2006] (holding that there were issues of fact regarding whether defendant surgeon continuously treated plaintiff's wrist condition after her wrist operation where plaintiff visited defendant's office 18 times subsequent to her wrist surgery, and received treatment for her knee at these visits while also "inquir[ing] about her wrist" at each appointment)). There are also issues of fact regarding the relationship between plaintiff's pressure ulcers and her other conditions, such as sepsis, making dismissal of these claims inappropriate at this time.
Defendant also relies on the gaps between the treatment dates, and the fact that plaintiff was treated by other providers during these gaps, but neither one of these factors is conclusive of whether the continuous treatment doctrine applies (See Torres v. Terence Cardinal Cooke Health Care Center, 26 Misc.3d 1208(A), at *1, *3 [Sup Ct, NY County 2009], aff'd, 72 AD3d 588 [1st Dept. 2010] (holding that continuous treatment doctrine applied to nursing home's treatment of plaintiff's bed sores, where plaintiff was admitted to nursing home from June 8, 2004 to May 19, 2005; June 1, 2005 to April 20, 2006; May 4, 2006 to June 10, 2006; June 13, 2006 to July 12, 2006; and July 14, 2006 to September 9, 2006 "with only brief periods between each admission when he was admitted at other non-party hospitals"); McDermott, 56 NY2d at 404 (declining to dismiss plaintiff's claim against defendant doctor even though plaintiff consulted a plastic surgeon regarding her ankle)). The gap between the fourth and fifth admissions is only five days, so the court declines to preclude plaintiff from making a claim regarding the fourth admission at this time. Despite defendant's argument that further treatment was not anticipated by defendant when plaintiff was discharged, questions of fact remain on this issue (See McDermott, 56 NY2d at 406 (stating that "a complete discharge by a physician [does not] forever bar a finding of continuing treatment;" "[i]ncluded within the scope of continuous treatment is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment")). Accordingly, defendant's motion to dismiss claims prior to December 14, 2015 is denied.
Defendant's motion to dismiss plaintiff's wrongful death cause of action is granted, as this action was commenced more than two years after the decedent's death, and plaintiff claims that he has not brought a cause of action for wrongful death. To the extent that a cause of action for wrongful death is pleaded in plaintiff's complaint, it is hereby dismissed, pursuant to EPTL § 5-4.1, as barred by the statute of limitations.
Defendant's motion for summary judgment is denied, as triable issues of fact remain as to whether defendant departed from acceptable standards of medical practice, and whether this departure resulted in the deterioration of decedent's medical condition. Although defendant met its burden by providing the expert opinion of Dr. Levine, who described defendant's treatment of plaintiff's pressure ulcers, including turning and positioning plaintiff every two hours, plaintiff's expert opinion raised a triable issue of fact by pointing out instances documented in the medical record where defendant did not turn and position the plaintiff every two hours, and variations in the measurements of decedent's pressure ulcers. Dr. Levine's reply affirmation does not resolve the issue regarding the turning and positioning of plaintiff, as he merely states that more frequent turning and positioning would not have resulted in a better outcome. Where, as here, the expert opinions conflict, summary judgment must be denied (See Dandrea, 23 AD3d at 333; Shields v. Baktidy, 11 AD3d 671, 672 [2d. Dept. 2004]). Accordingly, defendant's motion for summary judgment is denied.
Defendant's motion to consolidate this action with the action commenced under Index #500700/2018 against the nursing home is denied. Defendant filed the motion to consolidate after the Note of Issue had already been filed in this action, and the actions are in different phases of litigation (See Abrams v. Port Auth. Trans-Hudson Corp., 1 AD3d 118, 119 [1st Dept. 2003] (indicating that "consolidation is properly denied if the actions are at markedly different procedural stages")).
Defendant's motion to dismiss plaintiff's wrongful death cause of action is granted. All other motions are denied.
This constitutes the decision and order of the Court.
ENTER:
/s/_________
Hon. Pamela L. Fisher
J.S.C.