Opinion
Index No. 807898/2021E
07-11-2023
TERRELL HOLDER, Plaintiff, v. MANJU JACOB, JOSEPH GROSS, EDWARD BAHOU, MONETFIORE MEDICAL CENTER, MONETFIORE HEALTH SYSTEM, INC., Defendants
Unpublished Opinion
MICHAEL A. FRISHMAN Acting Justice of the Supreme Court
The following papers numbered 24-47, 50-55, 58 and 59-60 were read on this Motion for Summary Judgment (Seq. No. 001).
Sequence No.
NYSCEF Doc. Nos.
Notice of Motion, Affirmation in Support, Memorandum of Law -Exhibits, Affirmations and Affidavits Annexed
24-47
Notice of Cross-Motion, Affirmation in Opposition and in support of Cross-Motion - Exhibits and Affirmations and Affidavits Annexed
50-55
Reply Affirmation and Opposition to Cross-Motion
58
Reply Affirmation in Support of Cross-Motion - Exhibit Annexed
59-60
Upon the Notice of Motion of defendants MANJU JACOB, JOSEPH GROSS, EDWARD BAHOU, MONETFIORE MEDICAL CENTER, MONETFIORE HEALTH SYSTEM, INC.("defendants") seeking an Order dismissing the Complaint against them pursuant to CPLR § 3211(a)(7) on the ground that moving defendants' have qualified immunity under Public Health Law §§ 3080-3082 and the affirmation, affidavits and exhibits submitted in support thereof; plaintiffs Opposition thereto and Notice of Cross-Motion seeking an Order denying defendants' motion and granting plaintiff leave to amend his verified Complaint and the affirmation, affidavits and exhibits submitted in support thereof, are both hereby denied for the reasons discussed infra.
This matter was discontinued as against Montefiore Health System, Inc. via the Stipulation of Discontinuance with Prejudice dated September 17, 2021 and executed by the parties (see NYSCEF Doc. No. 15 and Doc. No. 28 as Ex. B).
Plaintiff commenced this action for medical malpractice and lack of informed consent, alleging that defendants were negligent in failing to timely diagnose and treat plaintiffs stroke on April 7, 2020 after having been admitted for a flare-up of ulcerative colitis on April 6, 2020 and after suffering a fall in his hospital room in which it is alleged that he hit his head.
It is alleged that plaintiff was found on the floor of his hospital room at approximately 5:35 a.m. on April 7, 2020 by defendant Nurse Jacob.
At the outset, it is undisputed that plaintiff tested negative for COVID-19 at the time of his admission and that his chief complaint was the flare-up of ulcerative colitis.
In support of their motion, defendants rely on Public Health Law §§ 3080-3082. Public Health Law § 3080, effective April 3, 2020, states:
In their papers, defendants also rely on the portion of Governor Cuomo's Executive Order 202.10, issued in response to the coronavirus pandemic, which modified various provisions of the Education Law
"to the extent necessary to provide that all physicians, physicians assistants, special assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State's response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional" (Executive Order 202.10).
"A public health emergency that occurs on a statewide basis requires an enormous response from state and federal and local governments working in concert with private and public health care providers in the community. The furnishing of treatment of patients during such a public health emergency is a matter of vital state concern affecting the public health, safety and welfare of all citizens. It is the purpose of this article to promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency."
Public Health Law § 3082, effective April 3, 2020, states, as is relevant here:
1. Notwithstanding any law to the contrary, except as provided in subdivision two of this section, any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services, if:
(a) the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;
(b) the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility's or health care professional's decisions or activities in response to or as a result of the CO VID-19 outbreak and in support of the state's directives;
(c) and the health care facility or health care professional is arranging for or providing health care services in good faith (emphasis added).
2. The immunity provided by subdivision one of this section shall not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional providing health care services, provided, however, that acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.
Subdivision 1 of Public Health Law § 3082 was subsequently amended, effective August 3, 2020, to delete the phrase "arranging for" from the description of protected activities.
Public Health Law § 3082 is "deemed to have been in full force and effect on or after March 7, 2020" (Laws 2020, ch 56, § 2 [Part GGG|). "Health care services," as defined in the version of Public Health Law § 3081 in effect at the time of plaintiffs alleged treatment and care, included "services provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to ... the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration" (Public Health Law § 3081 [5][c]).
Also effective August 3, 2020, Public Health Law § 308 l(5)(c) was deleted from the definition of health care services, leaving health care services to be defined as those relating to the diagnosis or treatment of COVID-19, or to the assessment or care of an individual as it relates to COVID-19, when such individual has a confirmed or suspected case of COVID-19.
The emergency enacted provisions, Public Health Law §§ 3080-3082, were repealed prospectively on April 6, 2021.
Defendants assert that they arc immune from liability because, at the time of plaintiffs hospital admission and treatment, they were rendering care in the course of providing medical services while responding to the COVID-19 outbreak and the care of the patient was impacted by the pandemic. In support of their motion, defendants submit affirmations by the named defendant providers as well as the Vice President and Chief Quality Officer for defendant Montefiore Medical Center ("MMC") essentially attesting that every aspect of every patient's care at MMC was impacted by COVID-19, including plaintiff. However, what is missing from defendants' proof is a demonstration that the "treatment of [plaintiff was] impacted by the health care facility's or health care professional's decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives" (see Public Health Law § 3082).
In determining a motion to dismiss a complaint pursuant to CPLR § 3211 (a)(7), a court's role is deciding "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (see African Diaspora Mar. Corp, v Golden Gate Yacht Club, 109 A.D.3d 204 [1st Dept 2013]; see also Siegmund Strauss, Inc. v East 149th Realty Corp., 104 A.D.3d 40111st Dept 2013]).
When assessing the adequacy of a pleading pursuant to a motion to dismiss "under CPLR § 3211 (a)(7), we accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory. At the same time, however, allegations consisting of bare legal conclusions.. .are not entitled to any such consideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an clement of the claims, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (see Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141-142 [2017] [internal citations omitted]).
When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see CPLR § 3026; Siegmund Strauss, Inc., 104 A.D.3d 401, supra). In addition, if evidentiary material such as affidavits is submitted in support of the motion, such evidence must conclusively establish a defense to plaintiff s claims as a matter of law (see Goldman v Metro. Life Ins. Co., 5 N.Y.3d 561, 571 [2005] [citations omitted]). "[A] defendant can submit evidence [, such as affidavits or testimony,] in support of [a CPLR 3211(a)(7)] motion attacking a well-pleaded cognizable claim" (Basis Yield Alpha Fund (Master) v Goldman Sachs Grp., Inc., 115 A.D.3d 128, 134 [1st Dept 2014]). The affidavits or testimony submitted in support of a motion to dismiss must conclusively establish the lack of a claim or cause of action (see Godfrey v Spano, 13 N.Y.3d 358 [2009]; see also Anonymous v Anonymous, 165 A.D.3d 19 [1st Dept 2018]).
Defendants' application does not conclusively establish a defense under the Public Health Law. "[I]t is clear from the express language of Public Health Law § 3082 that it is not merely a hospital's or health provider's care to persons affected by the corona virus pandemic, in the abstract, that entitles it to the immunity sought here, but that the care rendered to the person making the claim is affected, in some way, by the hospital's or provider's response to the pandemic (Public Health Law § 3082[l][b]; see also see also Matos v Chiong, 2020 NY Slip Op 34586[U], *2 [Sup Ct Bronx County 2020]; rearg denied 2021 NY Slip Op 32047[U]). Although defendants submitted numerous exhibits including medical records and the previously mentioned affidavits, none of this evidence conclusively shows how the surrounding pandemic "affected" or "impacted" the treatment of plaintiff such that his condition could not be properly diagnosed and promptly treated as it ultimately was by non-named party neurologist Dr. Gluck, who ordered the scan of plaintiff s brain which revealed the brain bleed after which plaintiff was taken into emergency surgery.
Defendants contend that due to the pandemic overload, the named neurologists were forced to learn how to treat plaintiffs gastrointestinal issue and thus, they are immune. The Court finds this argument unavailing and without conclusive proof how that led to a failure to timely diagnose and treat plaintiffs stroke that led to emergency surgery for his brain hemorrhage hours after plaintiff was found on the floor of his hospital room resulting in his current alleged injuries.
1 he attached affirmations of the named doctors and affidavit of Nurse Jacob generally attest to the exceptional environment that existed in the hospital during that unprecedented time that generally impacted their care of patients. In addition, said attestations generally touch upon plaintiffs treatment, to wit, that the named doctors were focused on learning how to treat plaintiffs ulcerative colitis condition as it was outside of their specialty; that Nurse Jacob was caring for more than double the number of patients than usual; that they had limited time with patients due to the extensive PPE requirements in place at the time; and that plaintiff did not exhibit any signs or symptoms of a brain bleed. However, defendants fail to establish as a matter of law how plaintiffs approximate six-hour delay in diagnosis of a brain bleed and need for emergency surgery were the result of a direct impact from defendants' response to the pandemic. Furthermore, plaintiffs condition was ultimately diagnosed by another neurologist who ordered a neurological workup at MMC under the same conditions. Thus, at the current stage of discovery, this purported defense has not been conclusively established and defendants' motion to dismiss must be denied.
However, defendant doctors' affirmations state that they jointly examined plaintiff after the patient had fallen and that in addition to the abdominal pain, complained of a headache on the right side of his head along with sensitivity to light and sound.
Turning to plaintiff's cross motion for leave to amend the Complaint, it is well established that motions for leave to amend pleadings "should be freely granted, absent prejudice or surprise resulting therefrom, unless the proposed amendment is palpably insufficient or patently devoid of merit" (MBIA Ins. Corp, v Greystone & Co., Inc., 74 A.D.3d 499, 499 [1st Dept 2010]). CPLR 3025 (b) provides that any motion to amend "shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions made to the pleading." "Although leave to amend a pleading 'shall be freely given' in the absence of surprise or prejudice, the determination whether to grant such leave is within the court's discretion, and the exercise of that discretion will not be lightly disturbed" (Alrose Oceanside, LLC v Mueller, 81 A.D.3d 574, 575 [2d Dept 2011]).
However, "[w]hile leave to amend a pleading is freely granted (CPLR 3025 [b]; Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957), this Court has consistently held that, in order to conserve judicial resources, an examination of the underlying merits of the proposed causes of action is warranted (Brennan v City of New York. 99 A.D.2d 445; East Asiatic Co. v Corash, 34 A.D.2d 432)" (Megaris Furs v Gimbel Bros., 172 A.D.2d 209). Therefore, a motion for leave to amend a pleading "must be supported by an affidavit of merits and evidentiary proof that could be considered upon a motion for summary judgment" (Nab-Tern Constructors v City of New York, 123 A.D.2d 571, 572, citing Walden v Nowinski. 63 A.D.2d 586).
Here, while the Court recognizes that plaintiff alleges he has suffered significant injuries, including hemiplegia and severe and permanent brain damage as a result of a delay in diagnosis, the Court finds plaintiffs expert opinion conclusory, to wit, the expert does not delineate any deviations that could be viewed as gross negligence rather than medical malpractice. Similarly, plaintiffs proposed amended Complaint is nearly identical to his original Complaint but for adding the terms "reckless," "grossly negligent manner," "grossly negligently," and "recklessly" alongside the previously stated negligence and careless allegations. In other words, plaintiff has failed to make allegations beyond those of ordinary negligence or malpractice, to wit, there is no showing that defendants engaged in willful, wanton, malicious or reckless conduct rising to the level of gross negligence. Consequently, plaintiffs crossmotion to amend his Complaint to add gross negligence is denied without prejudice.
Plaintiff's 2023 proposed Amended Complaint also continues to assert his causes of action against Montefiore Health System, Inc. even though the action was discontinued as against that entity in 2021.
We have considered the parties' remaining arguments and find them unavailing. Accordingly, it is hereby,
ORDERED that defendants' motion seeking dismissal of plaintiffs Complaint, is denied; And it is further
ORDERED that plaintiffs cross-motion seeking leave to amend his Complaint is denied; And it is further
ORDERED that counsel for defendants shall serve a copy of this Order with Notice of Entry on all parties within thirty (30) days of the entry of this Order.
This constitutes the Decision and Order of the Court.