Opinion
302694/09
11-02-2018
Norma POLANCO, as Adm of the Goods, Chattel and Credits which were of Pedro Polanco, Deceased, and Norma Polanco, Plaintiffs, v. KINGS HARBOR HEALTH SERVICES, LLC, Bronx Harbor Health Care Complex, Inc., "John" Ross, M.D., Eastchester Rehab and Health Care Center, LLC, Dimyan Balik, M.D., and "B.G., R.N.," and Sentosacare, LLC, Defendants.
Attorney for Plaintiffs: Ira S. Slavit, Esq., Levine & Slavit, PLLC, 60 East 42nd St., Suite 2101, New York, New York 10165, (212)687-2777. Attorney for Kings Harbor: Yuko Ann Nakahara, Esq., Martin Clearwater & Bell LLP, 220 East 42nd St., 13th Floor, New York, New York 10017, (212)697-3122. Attorney for Dr. Balik: James Makris, Esq., Wilson, Elser, Moskowitz, et al, 1133 Westchester Ave., White Plains, New York 10604, (914)323-7000. Attorney for Eastchester: Timmery P. Davis, Esq., Caitlin Robin & Assoc., PLLC, 120 Broadway, 11th Floor, New York, New York 10271, (646)524-6026.
Attorney for Plaintiffs: Ira S. Slavit, Esq., Levine & Slavit, PLLC, 60 East 42nd St., Suite 2101, New York, New York 10165, (212)687-2777.
Attorney for Kings Harbor: Yuko Ann Nakahara, Esq., Martin Clearwater & Bell LLP, 220 East 42nd St., 13th Floor, New York, New York 10017, (212)697-3122.
Attorney for Dr. Balik: James Makris, Esq., Wilson, Elser, Moskowitz, et al, 1133 Westchester Ave., White Plains, New York 10604, (914)323-7000.
Attorney for Eastchester: Timmery P. Davis, Esq., Caitlin Robin & Assoc., PLLC, 120 Broadway, 11th Floor, New York, New York 10271, (646)524-6026.
Joseph E. Capella, J.
The following papers numbered 1 to 10 read on these motions and cross-motion, submitted on August 29, 2018, as no. _____ on the Motion Calendar of _________.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1-3
ANSWERING AFFIDAVIT AND EXHIBITS 5-7
REPLY AFFIDAVIT AND EXHIBITS 8-10
CROSS-MOTION AND AFFIDAVITS ANNEXED 4
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION AND CROSS-MOTION ARE AS FOLLOWS:
This is a nursing home negligence, medical malpractice and deprivation of rights action pursuant to Public Health Law § 2801-d(1) action arising out of the care and treatment of decedent, Pedro Polanco. All of the parties are seeking summary judgment ( CPLR 3212 ); however, the plaintiffs seek this relief via a cross-motion. Before addressing the merits of the parties' respective summary judgment motions, the court must first address the timeliness of plaintiffs' cross-motion. ( CPLR 3212(a).) According to the defendants, plaintiffs' cross-motion is not timely, and there is no dispute amongst the parties that the deadline for filing a summary judgment motion was July 25, 2017. Plaintiffs filed their cross-motion on November 29, 2017, some four months after expiration of the applicable deadline. Although an untimely motion for summary judgment may still be considered with leave of court on good cause, ( Brill v. City of New York , 2 NY3d 648 [2004] ), plaintiffs' cross-motion is devoid of any explanation for its delay, let alone good cause. On the other hand, since Brill was decided by the Court of Appeals, the First Department has permitted untimely yet correctly labeled cross-motions (emphasis added) to be considered at least on the issue(s) that are the same in both, without needing to show good cause. ( Palomo v. 175th Street , 101 AD3d 579 [1st Dept 2012] ; Conklin v. Triborough , 49 AD3d 320 [1st Dept 2008] ; Filannino v. Triborough , 34 AD3d 280 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007].) A review of plaintiffs' cross-motion reveals that it essentially seeks relief based on the same issues raised by the defendants, and as such, it is timely. (Id. ) Now before addressing the merits of the respective motions, a review of the salient facts is necessary.
Plaintiffs also seek punitive damages and attorney fees pursuant to Public Health Law § 2801-d(6).
The 72-year-old decedent was transported to Montefiore Medical Center (Montefiore) via ambulance on March 31, 2007. In the emergency room, a CT scan revealed, inter alia , a large ischemic area involving the basal ganglia, caudate and putamen, and he was admitted with a diagnosis of a stroke. Over the next few days the decedent's slurred speech and weakness minimally improved; however, he had difficulty swallowing. On April 4, 2007, another CT scan was performed revealing the continued evolution of bilateral basal ganglia infarct, and later that day decedent was transferred to the Lubin Rehabilitation Center at Montefiore. On April 7th, after decedent was found unresponsive after dinner, he was intubated and transferred to the ICU at Montefiore. On April 17th, decedent underwent a tracheostomy, and on the 18th he underwent a PEG tube placement for nutritional support. His treatment was further complicated by new onset of atrial fibrillation, congestive heart failure and infection, and he continued to have weakness, poor balance and required extensive assistance. Decedent was discharged and transferred to Kings Harbor on April 30th for continued care and rehabilitation. At Kings Harbor, the decedent's blood pressure was 140/80, he weighed 160.3 lbs, and was found to be aphasic, non-ambulatory and incontinent to bowel and bladder. A Comprehensive Care Plan was initiated by Kings Harbor, and on May 1, 2007, an initial physician's assessment was performed by non-party, Dr. Ross, and a nutritional assessment was performed by a registered dietician. The dietician recommended feeds that would increase calorie and protein intake, and based on these recommendations, Dr. Ross entered an order for the modification of decedent's diet.
On May 6th, the decedent had a temperature of 101.1, and Tylenol was administered. At 6:00 a.m. on May 7th, the decedent's temperature had reduced to 100.6 , and later that morning the family requested that decedent be transferred to Eastchester Rehabilitation. At 1:00 p.m. the decedent arrived at Eastchester Rehabilitation, and his temperature was found to be 102.7. The attending physician, Dr. Dimyan Balik, ordered antibiotics and labs. At 9:35 p.m. the decedent was found unresponsive, CPR was initiated, 911 was called and the decedent was transferred to Jacobi Medical Center, where he was described as "s/p cardiac arrest." At Jacobi, the decedent's weight was 162.1 lbs, and a chest x-ray revealed the presence of a tracheostomy, tortuous aorta and right base atelectasis. A CT scan revealed subacute infarcts versus anoxic brain injury, bilateral BG lacunes, and a hemorrhagic infarct in the left cerebellum. On May 11th, the decedent expired and an autopsy revealed that the cause of death was, inter alia , hypodensities of the right cerebral hemispheres, bilateral cerebellar hemispheres, left temporal and occipital lobes consistent with diffuse anoxic brain injury, right hemiparesis, asphasia, dysphasia and mild to moderate atherosclerosis.
A summary judgment proponent must make a prima facie showing of an entitlement to same as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v. Prospect , 68 NY2d 325 [1986].) Therefore, as the proponents, the defendants must provide evidentiary proof in the form of expert opinions and/or factual evidence which establishes that defendants did not deviate from accepted standards of care and practice, and as such, defendants' conduct was not a proximate cause of decedent's injuries. ( Fileccia v. Massapequa , 99 AD2d 796 [2nd Dept 1984] ; affirmed 63 NY2d 639 [1984] ). If they do, then the burden shifts to plaintiffs to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (Alvarez , 68 NY2d 325).
An affirmation from Luigi Capobianco, M.D., who is Board Certified in Family Medicine and Geriatric Medicine, is provided in support of the summary judgment motion by Bronx Harbor Health Care Complex, Inc., d/b/a Kings Harbor Health Services, LLC (collectively referred to as Kings Harbor). According to Dr. Capobianco, the care and treatment rendered by Kings Harbor was appropriate and within good and acceptable standards of medical care. He also opines that the care and treatment rendered by Kings Harbor was neither the proximate cause of, nor a contributing factor to decedent's alleged injuries. With respect to plaintiffs' allegations concerning nutrition, hydration and medication, Dr. Capobianco found that these were appropriately managed during decedent's one week admission to Kings Harbor. Dr. Capobianco opined that initial orders for Glytrol 75 cc/hour for nutritional support were appropriately provided upon decedent's admission. A complete and comprehensive nutritional assessment was timely and appropriately performed by a registered dietician within 24 hours of admission, and it was appropriate for Dr. Ross to order the recommended diet. Dr. Capobianco opined that decedent was appropriately on Warfarin to reduce the risk of a stroke secondary to his a-fib, and the standard of care which required routine monitoring of decedent's INR levels was done. He also opined that hand mittens were timely and appropriately ordered to prevent decedent from harming himself. Dr. Capobianco opined that the routine tracheostomy care was appropriately rendered and evidenced by the fact that decedent was not in any respiratory distress at any time during his admission to Kings Harbor. As for decedent's mild fever, Dr. Capobianco opined that Tylenol was appropriately administered. Lastly, Dr. Capobianco opines that the care and treatment rendered by Kings Harbor was neither the proximate cause of, nor a substantial factor in, the decedent's claimed injuries and/or death. Instead, the decedent's ongoing deterioration and ultimate demise was a natural and expected course of his underlying heart condition, and his evolving multiple cerebral infarcts and related sequella. The Court is satisfied that the aforementioned is sufficient to now shift the burden to plaintiffs to raise issues of fact to warrant a trial (Alvarez , 68 NY2d 325).
Eastchester Rehabilitation and Health Care Complex, LLC, and Sentosacare, LLC (collectively referred to as Eastchester), also seek summary judgment. In support, they attach an affidavit from Marirose Kaufman, R.N., who opines that Eastchester did not depart from good and accepted nursing standards. According to Nurse Kaufman, decedent was transferred to the facility febrile, nonambulatory with tracheostomy in place, and in a vegetative state. During his nine and a half hour admission, decedent was treated by the respiratory care physician three times, six times by nursing and received his STAT medication within one hour of admission. Decedent was checked 35 minutes before he was found unresponsive, and at that time he was unchanged and not in distress. Also attached to the motion is the affirmation of Gisele Wolf-Klein, M.D., who likewise opines that Eastchester did not deviate from the standard of care. According to Dr. Wolf-Klein, due to the short admission, a care plan was not required, and decedent was properly and timely assessed upon admission, interventions were ordered to prevent respiratory distress, to decrease fever, and address potential infection as evidenced by the multiple nursing notes. Based on the aforementioned, Eastchester also argues that plaintiffs' claim of gross negligence cannot be established in that there was no reckless or wanton negligence ( Rey v. Park View , 262 AD2d 624 [2nd Dept 1999] ). As to these issues, Eastchester has now shifted the burden to plaintiffs to raise issues of fact to warrant a trial. (Alvarez , 68 NY2d 325.) Eastchester additionally argues that Sentosacare is not a viable defendant in this action because it is not a nursing home or medical facility equipped to provide care and treatment to patients. However, this allegation is only supported by an attorney affirmation, which is insufficient to establish prima facie entitlement to summary judgment ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ).
In support of the summary judgment motion by defendant, Dr. Balik, is an affirmation from Barbara Tommasulo, M.D., an expert in internal medicine/geriatric medicine. Dr. Tommasulo opines that the communications between Dr. Balik and the Eastchester nursing staff was appropriate, that Dr. Balik provided appropriate orders for initial care and his admitting orders were proper and within the standard of care. She further opines that Dr. Balik took all appropriate interventions for diagnosis and treatment for a patient who was otherwise stable with an isolated fever. And that Zosyn and Flagyl, which provide treatment for a broad-spectrum of possible organisms, were properly given in light of decedent's white blood cell count of 10.8, and the use of an empiric treatment with antibiotics was proper. It was also proper for Dr. Balik to order x-rays and an EKG, as well as urine, stool and sputum tests. Dr. Tommasulo also opines that the custom and practice in the community, as well as Eastchester's policy, does not require an immediate evaluation by an attending physician at the time a patient enters the facility. The standard of care is for an attending physician to perform a physical evaluation and obtain medical history within 48 to 72 hours of admission. She opines that decedent did not require immediate attendance by a physician, nor a transfer to an acute care facility — he was in a stable clinical condition for continued care at Eastchester. Given the aforementioned, Dr. Balik has also shifted the burden to plaintiffs to raise issues of fact to warrant a trial (Alvarez , 68 NY2d 325).
Not only do the plaintiffs oppose the relief sought by the defendants, they cross-move arguing that they are entitled to summary judgment against Kings Harbor for violating Public Health Law § 2801-d(1) and generally accepted standards of care by (1) feeding decedent one-third of the prescribed calories in violation of the physician's diet order, (2) failing to monitor the nurses' noncompliance with the feeding order and decedent's weight loss, and (3) transferring decedent to another nursing facility rather than to a hospital while he was acutely ill with a high fever. Plaintiffs also seek summary judgment against Eastchester and Dr. Balik for violating Public Health Law § 2801-d(1) and generally accepted standards of care by (1) accepting decedent as a patient, and (2) failing to transfer him to a hospital immediately upon learning of his acute illness, high fever and septic condition. It must be noted that plaintiffs' Public Health Law cause of action is distinct from their medical malpractice claim. Liability under Public Health Law § 2801-d is not predicated on a deviation from accepted standards of medical practice nor a breach of a duty of care. Instead, it is a deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient. ( Zeides v. Hebrew Home , 300 AD2d 178 [1st Dept 2013].) Once a plaintiff establishes that he/she was deprived of a protected right, and that the deprivation was a substantial factor in causing the injury, ( Sullivan v. Our Lady , 60 AD3d 663 [2nd Dept 2009] ), the burden shifts to defendant to demonstrate that it exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted ( Craig v. St. Barnabas , 129 AD3d 643 [1st Dept 2015] ).
The plaintiffs' summary judgment motion is supported by the affidavits of Eleanore E. Tache, R.N., and Marc S. Itskowitz, M.D., who is board certified in internal medicine. According to Nurse Tache, Kings Harbor violated a variety of state and federal regulations, including 10 NYCRR 415.12(i) (facility must ensure acceptable nutrition), 42 CFR 483.23(g) (assisted nutrition and hydration) and Public Health Law § 2803-c(3)(e) (right to receive adequate and appropriate medical care), by failing to follow the physician's feeding orders. She states that decedent received PEG feeding for only six hours per day rather than 18, depriving him of two-thirds of the prescribed calories. Dr. Itskowitz opines that decedent arrived at Kings Harbor in a weakened and debilitated state, and upon his admission decedent's albumin level of 3.4 was on the low end indicating a risk of malnutrition. And both Nurse Trache and Dr. Itskowitz opine that the aforementioned was a substantial factor in causing decedent to develop an infection, sepsis, cardiac arrest, anoxic brain injury and death. According to Dr. Itskowitz, Eastchester and Dr. Balik violated Public Health Law § 2803-c(3)(e) by accepting decedent as a patient rather than transferring him to a hospital immediately upon learning that his vital signs revealed 102 fever and sepsis. Dr. Itskowitz opines that an infection which manifested itself on May 6th led to sepsis on May 7th, and was a substantial factor in causing decedent's cardiac arrest and anoxic brain injury.
Besides seeking summary judgment on their Public Health Law claim, the plaintiffs also seek summary judgment on their medical malpractice claim. As previously discussed, to prevail on this claim, plaintiff must establish (1) a deviation or departure from accepted medical practice and (2) that such departure was a substantial factor in causing the injury or death. ( Frye v. Montefiore , 70 AD3d 15 [1st Dept 2009].) The plaintiffs utilize many of the same facts used in support of their Public Health Law claim, except that their experts further opine that these facts establish a departure from accepted nursing and medical practice. For example, Nurse Tache and Dr. Itskowitz both opine that Kings Harbor departed from the standard of care by, inter alia , failing to (1) follow the physician's feeding orders and (2) transfer decedent to a hospital. Dr. Itskowitz further opines that Eastchester and Dr. Balik departed from standards of care by accepting decedent as a patient, and then failing to transfer him to a hospital upon becoming aware of his fever. Plaintiffs' cross-motion did not address the use of restraints, the management of decedent's trach tube /collar, and gross negligence; therefore, these three claims must be dismissed.
Kings Harbor argues that plaintiffs' allegations regarding improper feeding, monitoring and transfer should not be considered because they were not explicitly pled in the bill of particulars. Eastchester argues that plaintiffs' allegations regarding acceptance to Eastchester and the delayed transfer to a hospital should likewise not be considered because they too were not explicitly pled in the bill of particulars. The purpose of a bill of particulars is to provide a general statement of the acts or omissions constituting the alleged claim, ( CPLR 3043(a)(3) ), and it need not specifically (emphasis added) describe the manner in which the defendants either deviated from accepted standards or deprived decedent of a right because medical experts and nursing homes are charged with knowing those standards. ( Dellaglio v. Paul , 250 AD2d 806 [2nd Dept 1998].) The bill of particulars sufficiently plead that defendants failed to conduct an adequate assessment of decedent and properly assess, monitor and evaluate decedent's high fever. The plaintiffs were not required to specifically plead that decedent's fever required a transfer to a hospital because plaintiffs are not required to plead what good and accepted practices require, which defendants are charged with knowing. ( Mahr v. Perry , 74 AD3d 1030 [2nd Dept 2010].) Moreover, as the First Department noted in Valenti v. Camins , a party may raise a completely unplead issue on summary judgment so long as the other party is not taken by surprise and does not suffer any prejudice. ( 95 AD3d 519 [1st Dept 2012].) Here there can be no surprise or prejudice because these allegations were addressed by the parties during discovery, in depositions and were addressed by the defendants' experts.
Overall, except for plaintiffs' failure to address the use of restraints, the management of decedent's trach tube /collar, and claims of gross negligence, three claims which the court earlier dismissed, what we have are opposing experts disagreeing on material issues of fact. ( Barnett v. Fashakin, 85 AD3d 832 [2nd Dept 2011] ; Frye , 70 AD3d 15.) And as such those issues must be resolved by the trier of fact, thereby precluding summary judgment. (Id. ) Therefore, that portion of Kings Harbor's motion which sought dismissal of plaintiffs' allegation regarding the improper use of restraints and the mismanagement of decedent's trach tube /collar is granted, and that portion of Eastchester's motion which sought dismissal of plaintiffs' claim of gross negligence is granted. The remaining balance of the motions and cross-motion are denied. Plaintiffs are directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.