Opinion
10-25-2016
Patrina KITT, as Administratrix of the Estate of Chmaar Kitt Scott, deceased, Plaintiff–Respondent, v. Benjamin OKONTA, M.D., et al., Defendants, Brookhaven Rehabilitation & Health Care Center, Defendant–Appellant.
Caitlin Robin & Associates, PLLC, New York (Caitlin Robin of counsel), for appellant. Wallace & Associates, P.C., Brooklyn (Larry Wallace of counsel), for respondent.
Caitlin Robin & Associates, PLLC, New York (Caitlin Robin of counsel), for appellant.
Wallace & Associates, P.C., Brooklyn (Larry Wallace of counsel), for respondent.
TOM, J.P., MAZZARELLI, RICHTER, MANZANET–DANIELS, WEBBER, JJ.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 30, 2015, which, to the extent appealed from, denied defendant Brookhaven Rehabilitation & Health Care Center's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Although Brookhaven made a prima facie showing that it did not depart from good and accepted medical practices (see Lopez v. Gramuglia, 133 A.D.3d 424, 425, 20 N.Y.S.3d 8 [1st Dept.2015] ; Matos v. Khan, 119 A.D.3d 909, 910, 991 N.Y.S.2d 83 [2d Dept.2014] ), the report of plaintiff's medical expert raised triable issues of fact as to whether there was a departure and whether any departure was a proximate cause of decedent's death. In particular, plaintiff's expert opined that decedent presented to Brookhaven with symptoms and complaints indicative of a high risk for deep vein thrombosis and a pulmonary embolism (DVT/PE), which was not ruled out by testing done at a prior medical facility, that Brookhaven should have performed a diagnostic workup for DVT/PE and provided prophylactic anticoagulation treatment, and that it unreasonably delayed in sending decedent to the hospital when he was found on the floor vomiting 11 days after admission (see Bartholomew v. Itzkovitz, 119 A.D.3d 411, 415, 990 N.Y.S.2d 10 [1st Dept.2014] ; Jiminian v. St. Barnabas Hosp., 84 A.D.3d 647, 923 N.Y.S.2d 323 [1st Dept.2011] ).