Opinion
Index No. 452724/2021 Motion Seq. No. 003
12-18-2023
PUBLIC ADMINISTRATOR OF BRONX COUNTY AS THE ADMINISTRATOR OF THE ESTATE OF WILLIE STACY, DECEASED, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant.
Unpublished Opinion
MOTION DATE 11/09/2023
PRESENT: HON. ERIKA M. EDWARDS Justice
DECISION + ORDER ON MOTION
ERIKA M. EDWARDS, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 163, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180 were read on this motion to/for _JUDGMENT - SUMMARY.
Upon the foregoing documents, the court denies Plaintiff Public Administrator of Bronx County as Administrator of the Estate of Willie Stacy, Deceased's ("Plaintiff') motion for summary judgment as to liability in Plaintiffs favor.
Plaintiff brought this medical malpractice action against Defendant New York City Health and Hospitals Corporation ("Defendant") alleging Defendants were negligent in their care and treatment of the Deceased Plaintiff by failing to prevent and treat pressure ulcers during the Deceased Plaintiffs admission to Harlem Hospital from September 20, 2018 to October 25, 2018. Plaintiff alleges in substance that on October 25, 2018, the Deceased Plaintiff was discharged to hospice care at Goldcrest Care Center, where he died because of his injuries.
Plaintiff now moves, under motion sequence 003, for summary judgment in Plaintiffs favor on the issue of liability. Plaintiff relies on the expert affidavit of Mary Stein, who is a Registered Nurse, licensed in New York, and she is a former director of a skilled nursing facility with a Master of Nursing degree. Plaintiff argues in substance that Defendant departed from good and accepted practice by failing to properly evaluate the condition of the Deceased Plaintiff s skin by using the criteria of the Braden Scale upon admission and repeating the evaluation at least once each nursing shift; by failing to create and implement a Nursing Care Plan for the prevention of skin breakdown and pressure ulcers; by failing to properly treat the Deceased Plaintiff to prevent skin breakdown and pressure ulcers, including turning him every two hours, providing pressure reducing devices and skin protective ointment; by failing to properly care for and treat the skin breakdown and pressure ulcers; by failing to accurately document the examinations, care and treatment provided; and by failing to properly provide and document perianal care when he defacated and urinated in his bed. Plaintiff further argues that such departures are evident in the hospital record and that there are no triable issues of fact.
Defendant opposes Plaintiff s motion and argues that Plaintiff failed to establish a prima facie showing on any basis for entitlement to summary judgment. Defendant argues in substance that Plaintiff s motion is patently deficient as a matter of law because it fails to include an expert affirmation from a duly licensed physician to support Plaintiffs claim that there is a causal nexus between the alleged departures and Plaintiffs alleged injuries.
If the court declines to deny Plaintiffs motion based on Nurse Stein's affidavit, then Defendant relies on the expert affirmation of Dr. Alan Pollack, a geriatric care, wound care and infectious diseases expert to argue that there were no departures from the applicable standards of care and that that Defendant did not proximately cause any of the Deceased Plaintiff s alleged injuries. Defendant argues in substance that at the time of the Deceased Plaintiffs admission to Harlem Hospital, he was a long-term resident of Gold Crest Care Center nursing home with degenerative dementia, end stage renal disease, and he had a history of numerous comorbidities, including, but not necessarily limited to, aortic aneurysm, chronic obstructive pulmonary disease, diabetes, and hypertension. He was incontinent and needed assistance eating, moving and repositioning. The Deceased Plaintiffs admission was due to his significant seizure after dialysis which caused a severe deterioration of his medical condition.
To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (see CPLR 3212[b]; Zuckerman vNew York, 49 N.Y.2d 557, 562 [1980]; Jacobsen v New York City Health &Hosps. Corp., 22 N.Y.3d 824, 833 [2014]; A Ivarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The movant's initial burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (Jacobsen, 22 N.Y.3d at 833; William J. Jenack Estate Appraisers &Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013]).
If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers (Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his or her failure to do so (Zuckerman, 49 N.Y.2d at 560; Jacobsen, 22 N.Y.3d at 833; Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]).
To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove 1) the standard of care in the locality where the treatment occurred, 2) that the defendant breached that standard of care, and 3) that the breach of the standard was the proximate cause of the injury (Berger v Becker, 272 A.D.2d 565, 565 [2d Dept 2000]). Unless a plaintiff demonstrates that a matter is within the experience and observation of the ordinary juror; i.e. that it involves res ipsa loquitur, a plaintiff in a medical malpractice case requires an expert's opinion to establish a prima facie case (Rodriguez v Saal, 43 A.D.3d 272, 276 [1st Dept 2007]). It has been held that an expert opinion from a nurse, even when supported by hospital records and deposition testimony, "is insufficient to establish a causal link between the hospital's alleged breach of duty and the decedent's deterioration and eventual death" (Zak v Brookhaven Mem. Hosp. Med. Ctr., 54 A.D.3d 852, 853 [2d Dept 2008]). Even when a plaintiff includes an expert opinion from a duly licensed physician, if such affirmation is insufficient, it has been held that a nurse's affidavit is insufficient to demonstrate proximate causation because it offered medical opinions and conclusions that the expert was not competent to render (Abalola v Flower Hosp., 44 A.D.3d 522, 522 [1st Dept 2007] [internal citations omitted]).
Summary judgment is "often termed a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue" (Siegel, NY Prac § 278 at 476 [5th ed 2011], citing Moskowitz v Garlock, 23 A.D.2d 943, 944 [3d Dept 1965]). Summary judgment should be awarded when a party cannot raise a factual issue for trial (Sun Yan Ko v Lincoln Sav. Bank, 99 A.D.2d 943, 943 [1st Dept 1984]; CPLR 3212[b]).
Here, the court finds that Plaintiff failed to satisfy its initial burden of establishing prima facie entitlement to judgment in its favor as to liability as a matter of law. The court agrees with Defendant and finds that Plaintiff failed to meet its burden of demonstrating that the alleged departures caused or contributed to Plaintiffs alleged injuries and death. Plaintiffs expert, Nurse Stein, who is not a duly licensed physician, is not competent to opine on proximate causation. Therefore, Plaintiff failed to satisfy its initial burden and the burden never shifted to Defendant.
Alternatively, even if Plaintiff made such initial showing, then the court finds that Defendant demonstrated disputed issues of fact requiring a trial in this matter.
Therefore, the court denies Plaintiff's motion for summary judgment as to liability.
The court has considered any additional arguments raised by the parties, which were not specifically discussed herein, and the court denies all requests for relief which were not expressly granted.
As such, it is hereby
ORDERED that the court denies Plaintiff Public Administrator of Bronx County as Administrator of the Estate of Willie Stacy, Deceased's motion for summary judgment in Plaintiffs favor as to liability.
This constitutes the decision and order of the court.