Opinion
Index 608680/18
04-02-2021
CHERYL MCINTOSH RAMEY, as the Administrator of the Estate of NINA GORDON, Plaintiff, v. NASSAU OPERATING CO., LLC, Defendants. Motion Sequence No. 01
RANDY SUE MARBER JUDGE.
Unpublished Opinion
Present: HON. RANDY SUE MARBER JUSTICE.
SHORT FORM ORDER
RANDY SUE MARBER JUDGE.
Papers Submitted:
Notice of Motion................................x
Affirmation in Opposition...................x
Reply Affirmation............................x
Upon the foregoing papers, the motion, filed by the Defendant, NASSAU OPERATING CO., LLC, seeking an Order pursuant to CPLR § 3212, granting it summary judgment dismissing the Complaint in its entirety, or, in the alternative, dismissing the Plaintiffs claims for punitive damages, is decided as hereinafter provided.
The Plaintiff, CHERYL MCINTOSH RAMEY, commenced this action on behalf of her mother, NINA GORDAN (hereinafter "Plaintiffs Decedent," "Decedent" or "Gordon"), as against the Defendant for negligence, gross negligence, wrongful death and violations of Public Health Law ("PHL") § 2801-d. The Plaintiff also alleges a claim for punitive damages.
The Plaintiff alleges that the Decedent sustained personal injuries resulting in death due to the improper care and treatment provided by the Defendant over the course of two admissions comprising of approximately six weeks at the Defendant's facility. The admissions were from April 28, 2016 through May 13, 2016 and May 19, 2016 through June 24, 2016. The Plaintiff claims that due to the alleged wrongdoing, the Decedent suffered three falls at the Defendant's facility on April 30, 2016, June 17, 2016 and June 24, 2016.
The Plaintiffs Decedent, Gordon, then 86 years old, was first admitted to Defendant's facility on April 28, 2016 from Winthrop University Hospital, where she had been admitted from April 17-28, 2016, for short term rehabilitation with the goal to return to her apartment with home care services. Upon admission, Gordon's prior medical history included malaise, resolving shingles (herpes zoster) blisters on her right shoulder and right breast, leukocytosis, dehydration, acute kidney injury, congestive heart failure, chronic obstructive pulmonary disease, failure to thrive and difficulty with ambulation. She was noted to need extensive assistance with toileting and all other activities of daily living ("ADLs").
Upon admission, Gordon was evaluated as being at high risk for falls due to her prior history. The Care Plan interventions included assistance with transfers, ambulation, toileting and hygiene as needed, keeping a call bell within reach and encouraging Gordon to use it for assistance as needed, ensuring appropriate footwear and anticipating her needs.
Gordon suffered her first fall on April 30, 2016, two days after admission. A nursing supervisor documented that Gordon was found on the floor of the bathroom sitting in urine. She complained of pain to her buttocks and was reportedly given Tylenol for pain. It was documented that Gordon reportedly wanted to use the bathroom and did not use the call bell. The Accident/Incident Report, under the section entitled "Recommendation for preventive measures not already in place/additional corrective measures taken", notes that she was "counseled on safety" (See Accident/Incident Report dated 4/30/16, annexed to Motion as Exhibit "F"). The fall was reported to the attending physician and the Decedent's family was notified. There were no physician orders issued as a result of the fall, nor were any x-rays ordered.
Defense counsel's affirmation indicates that, in response to the 4/30/16 fall, it was noted on the Falls Care Plan that the Decedent would be monitored for 72 hours for the signs and symptoms of pain, bruises, changes in mental status, sleepiness, inability to maintain her posture and agitation. However, while Exhibit "F" is cited for updated/revised care plan, no such document is found therein, nor is there a revised measure in that regard.
The second fall at the Defendant's facility occurred on June 17, 2016, where Gordon was found by the facility's staff lying on the floor in front of her bed. Gordon reportedly stated that she was going to get a towel. Upon assessment, Gordon was observed with a superficial skin tear on her right leg. The physician was made aware and a physician order was issued for Bacitracin to be applied to the right leg. Once again, the Accident/Incident Report, under the section entitled "Recommendation for preventive measures not already in place/additional corrective measures taken", reflects "Safety Counseling" (See Accident/Incident Report dated 6/17/16, annexed to Motion as Exhibit "G").
The Decedent suffered her third and final fall at the Defendant's facility on June 24, 2016. She was again found lying on the floor next to her bed and was bleeding from her head and nose. An ambulance was called and the EMT documented a hematoma to her forehead. The Accident/Incident Report reflects that a CNA was in the Decedent's room helping her change. When the CNA turned around to get a towel, the Decedent reportedly "got up from [wheelchair] by herself and fell." (See Accident/Incident Report dated 6/24/16, annexed to Motion as Exhibit "H"). Notably, on this third Incident Report, the recommendation for preventive measures not already in place was to implement a chair alarm. While the intent was to implement a chair alarm upon the Decedent's return from the hospital, she never returned.
As a result of the June 24, 2016 fall, the Decedent was transferred via ambulance to Winthrop University Hospital. A CT scan of the brain in the emergency department noted traumatic left frontal scalp hematoma, left frontal parenchymal hematoma, trace adjacent extra-axial blood and subdural blood along the left frontal convexity superolaterally. The Decedent also sustained a nasal bone fracture. A CT of the abdomen and pelvis revealed a fracture of the right inferior pubic rami. She was also diagnosed with a fracture at L2 of the lumbar spine and a displaced fracture of the left ischial tuberosity (See Winthrop Records, annexed to Motion as Exhibit "I").
At Winthrop, the Decedent was initially admitted to the Neurology Intensive Care Unit with placement of a hard collar and physician orders were issued for bedrest, nothing by mouth, sequential compression boots, no heparin for deep vein thrombosis due to brain bleed, and platelets due to aspirin use. A MOLST form at that time noted DNR/DNI and no tube feedings. While intubation for airway protection was considered, it was not performed due to the DNI in place. In or about the early morning hours of June 25, 2016, Gordon was deemed stable for transfer out of the intensive care unit. However, in the afternoon hours of June 25, 2016, Gordon developed respiratory compromise. Later that evening, the family rescinded the DNR/DNI and requested a feeding tube if needed. After aggressive medical management measures were taken, Gordon's respiratory status deteriorated, and she was transferred back to ICU and intubated.
On June 29, 2016, the Plaintiff signed for DNR/DNI status and comfort measures. The Plaintiff's Decedent died on July 2, 2016.
The Death Certificate documents the "immediate cause" of death as congestive heart failure, "due to or as a consequence of hypertensive and arteriosclerotic heart disease, with "blunt force trauma to head with subdural hematoma and cerebral contusion" noted as the "other significant conditions contributing to death" (See Death Certificate dated 7/2/16, annexed to Motion as Exhibit "A").
In support of its motion, the Defendant submits the expert affirmation of Barbara Tommasulo, M.D., who opines, within a reasonable degree of medical certainty, that the fall prevention measures in place at the Defendant's facility during the Decedent's admission from April 28, 2016 until June 24, 2016, were reasonable, adequate and appropriate to address her fall risk and properly implemented. She further opines that the alleged failure to devise and implement such measures did not proximately cause the June 24, 2016 accident (See Dr. Tommasulo Affirmation at ¶59, annexed to Defendant's Motion). She further opines that the Defendant did not violate PHL 2801-d in connection with the Plaintiffs claims relating to falls and that the Decedent did not sustain any injuries or damages that were proximately caused by violations of the PHL. Notably, Dr. Tommasulo states in a footnote that the Decedent's "June 24, 2016 fall is the only injury-producing accident for which Plaintiff seeks damages herein." (Id. at fn. 1). Dr. Tommasulo explains that the "determination of the particular fall preventions to be used in the nursing home setting involves a multi-factorial assessment of the resident, including the resident's history of falls, underlying illnesses and medical problems, medications, functional status, sensory status, psychological status, toileting needs and the status of their surrounding environment" (Id. At ¶ 60). She continues that once these factors are assessed by the facility, a plan of care is devised to reduce the resident's risk of falls posed by the foregoing "intrinsic" risks, as well as "extrinsic" risks presented by the surrounding environment (i. e., wet floors, cluttered areas, insufficient lighting conditions, etc.). Dr. Tommasulo concludes that "[t]he Record reflects that no extrinsic risks proximately caused or contributed to the June 24, 2016 accident" (Id.).
With regard to the first fall of April 30, 2016, Dr. Tommasulo acknowledges the Decedent's complaints of pain to the buttocks resulting therefrom, for which Tylenol was administered, and then opines that the allegation that the Defendant facility should have ordered an x-ray to rule out injury in response to the April 30, 2016 fall lacks merit as the taking of any x-ray was not warranted.
As to the second fall of June 17, 2016, Dr. Tommasulo acknowledges that the Decedent was found on the floor next to her bed, that the incident was likewise investigated, and that the Falls Care Plan was "revised to include reminders to use the call bell..." (Id. at 163).
Dr. Tommasulo notes that as a result of the fall on June 24, 2016, the Decedent was transferred via ambulance to Winthrop University Hospital, where she was treated for a fall with evidence of, inter alia, traumatic subdural hemorrhage, scalp laceration and contusion, fracture of nasal bones, toxic encephalopathy, fracture of the left pubis, pneumonitis due to inhalation of food and vomit, and atelectasis (Id. At ¶ 52).
After acknowledging and reciting the third fall of June 24, 2016 - which is the only fall described as "injurious", Dr. Tommasulo opines that the Plaintiffs claims that a "personal alarm or pad alarm" should have been utilized prior to the June 24, 2016 fall and that such fall was proximately caused by the failure to utilize such alarms lacks merit..." (Id. At ¶ 65). In support of her opinion, Dr. Tommasulo states that the Decedent did not have a significant history of falls and that her cognitive status went from "moderately impaired" to "cognitively intact" categories just prior to the June 24, 2016 fall. She continues that, in view of Gordon's lack of significant mental status impairment, it is reasonable for the facility not to have utilized a "personal alarm, or pad alarm" as there is a "dignity" issue associated with same. Dr. Tommasulo then acknowledges that "if an alarm had been deemed appropriate in response to the June 17, 2016 fall from bed, a bed alarm, not a chair alarm, would have been the appropriate, least-restrictive intervention" and that a "bed alarm would have had no impact on the fall of June 24, 2016 fall from the wheelchair, with a staff member in the room." (Id.). Dr. Tommasulo ultimately concludes that "the non-use of a personal or pad alarm in view of Gordon's cognitive status and lack of significant history of falls, in particular a fall from the wheelchair, was entirely reasonable; and that the decision whether to utilize an alarm for this resident was essentially a 'judgment call' for whom the failure to use an alarm does not constitute negligence" (Id.). Lastly, Dr. Tommasulo opines that, "the fact that the third fall occurred with a CNA present in the room reflects that the absence of an alarm did not proximately cause the June 24, 2016 accident, as alarms do not prevent falls, but rather, alert staff as to when a resident has arisen from a bed or chair to possibly afford them a reasonable amount of time to attend to a resident before a fall occurs." (Id. At ¶ 66 [emphasis in original]).
With regard to the Plaintiffs claims as to pressure ulcers, Dr. Tommasulo opines that the measures in place to prevent and treat pressure ulcers over the course of the Decedent's brief admissions conformed to accepted standards of medical care and the applicable regulatory provisions governing pressure ulcers and were adequate, appropriate and reasonable. While Dr. Tommasulo initially avers that the skin impairment that developed in the sacral area was first noted on May 2, 2016, she later states that "the sacral area was initially noted to have been compromised upon admission..." (See Dr. Tommasulo Aff. At ¶¶ 72-73 [emphasis supplied]). Dr. Tommasulo states that the skin impairment was described as "multiple blood and fluid filled open and closed blisters on the sacrum" and that "these blisters did not initially present as pressure ulcers, but rather, as blisters that developed secondary to pemphigus, an autoimmune disorder that causes the body to produce antibodies that damage the cells of the skin and mucous membranes." (Id. at 72). Upon discovery of these "blisters," Dr. Tommasulo opines that the facility undertook appropriate measures by ordering and administering Bactroban, a topical antibiotic, and Prednisone; and by contacting the dietary staff which recommended nutritional supplements to aid healing. She further references that on May 12, 2016 (ten days after the initial discovery of the skin impairment), the Decedent was seen by the wound care nurse, whereupon the sacral lesion was described as "unstageable," measuring 2 cm x 2 cm, with 60% slough and minimal drainage and that there was a change in the treatment order from Bactroban to Medihoney each shift. She continues by noting that an air mattress was provided to the Decedent on May 13, 2016; and thereafter she was "regularly seen" by Wound Care following her readmission to Winthrop (May 14, 2016- May 19, 2016) on May 20, 2016, May 28, 2016, June 4, 2016, June 9, 2016 and June 17, 2016, during which time "the area of impaired skin to the sacral area remained stable" and "with improvements and healing achieved to other areas of impaired skin" (Id. At ¶ 72 [emphasis supplied]).
Dr. Tommasulo ultimately concludes that the subsequent development of a pressure-related injury to the sacral area was clinically unavoidable and attributes its development to the pemphigus condition having already compromised the skin to the sacral area in combination with her underlying medical comorbidities (Id. at ¶ 73).
Similarly, with respect to the right shoulder lesion, Dr. Tommasulo opines that the skin impairment to this area predated her initial admission to the facility as "she presented to the facility with a Zoster rash to the right shoulder..." (Id. At ¶ 77 [emphasis in original]). She concludes that the Decedent was provided with "necessary treatment and services to promote healing, prevent infection and prevent new sores from developing", as contemplated by federal and state regulations, since it preexisted her admission, resolved by June 17, 2016, and did not become infected.
Lastly, Dr. Tommasulo opines that, "with regard to the miniscule 1 cm x 1 cm right trochanter lesion.. .its development was clinically unavoidable, secondary to Ms. Gordon's pre-existing conditions and medical co-morbidities..." (Id. At ¶ 78).
With respect to the gross negligence claim, Dr. Tommasulo opines that the record is devoid of conduct by the Defendant that is so reckless or wantonly negligent as to be the equivalent of a conscious disregard for the rights of others or smacks of intentional wrongdoing (Id. At ¶ 79). She similarly concludes that the wrongful death claim should be dismissed since the Defendant was not negligent and did not violate the PHL, particularly with regard to the fall precautions that were in place, and also because Gordon's death was not proximately caused by the Defendant's alleged wrongdoing.
Legal Analysis
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such deviation was a proximate cause of injury or damage (Feinberg v. Feit, 23 A.D.3d 517, 518 [2d Dept. 2005]). "On a motion for summary judgment, a 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 A.D.3d 457, 458 [2d Dept. 2007] [citations omitted]; Thompson v. Orner, 36 A.D.3d 791 [2d Dept. 2007]; Keevan v. Rifkin, 41 A.D.3d 661 [2d Dept. 2007]; Kelly v. Rosea, 164 A.D.3d 888, 891 [2d Dept. 2018]). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing (Burger v. Das, 159 A.D.3d 667, 668 [2d Dept. 2018]).
Here, the Defendant established, via the expert affirmation of Dr. Tommasulo, its prima facie entitlement to judgment as a matter of law with respect to the Plaintiffs claims alleging medical malpractice, violations of PHL § 2801-d, gross negligence, punitive damages and wrongful death (See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; WinegradvNew York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). The burden thus shifts to the Plaintiff to demonstrate the existence of a triable issues of fact via the submission of admissible evidence (Rosen, 45 A.D.3d at 559, citing Micciola v. Sacchi, 36 A.D.3d 869 [2d Dept. 2007]; Kaplan v. Hamilton Med. Assoc, 262 A.D.2d 609 [2d Dept. 1999]).
In opposition, the Plaintiff submits the expert affirmation of Brett E. Helfner, M.D., a board certified radiologist, who rendered medical opinions regarding the findings on the CT scan of the abdomen and pelvis taken of the Decedent at Winthrop Hospital on June 25, 2016 (following the third and final fall at the Defendant facility). Dr. Helfner opines, within a reasonable degree of medical certainty, that there was a severe compression/burst fracture of the L2 vertebral body resulting in significant central stenosis along the posterosuperior endplate; and that there were regions of bony and cortical discontinuity that he opines was an "acute traumatic fracture." He further opines that there was intermixed lucency and sclerosis within the L2 vertebra which is likely the result of the injury. He further noted an acute nondisplaced fracture of the right inferior pubic ramus; and mildly comminuted and displaced fracture of the left greater tuberosity with some sclerosis and partial healing indicating that this fracture is subacute. (See Dr. Helfner Affirmation, annexed to Plaintiffs Opposition as Exhibit "2"). Dr. Helfner's conclusions are as follows:
The history of this patient includes a fall in the nursing home on April 30, 2016 where she was found on the floor in urine after which she complained of pain to the left buttock. No x-
rays were taken. It is my opinion within a reasonable degree of medical certainty that the comminuted LEFT ischial tuberosity fracture which demonstrates sclerosis and partial healing is subacute and occurred during the patient's fall on April 30, 2019 [s/c]rather than the fall on June 24, 2016. This would certainly account for pain in the patient's left buttock she experienced after the April 30, 2016 fall. It is my opinion within a reasonable degree of medical certainty that the L2 compression fracture is acute and traumatically caused as is the nondisplaced RIGHT inferior pubic rami fracture. It is my opinion within a reasonable degree of medical certainty that the L-2 compression fracture and the nondisplaced RIGHT inferior pubic rami fracture were caused by a fall more likely during the June 24, 2016 fall rather than the April 30, 2016 fall. (See Plaintiffs Exhibit "2")
The Plaintiff also proffers the expert affirmation of Karim Khimani, M.D., who is board certified in Internal Medicine with a sub-certification in Geriatrics. Dr. Khimani opines, within a reasonable degree of medical certainty, that the Defendant, through its staff, was negligent and violated the Decedent's rights as a nursing home resident pursuant to PHL 2801-d. He opines that the negligence and PHL violations, as they relate to the Decedent's care and treatment, caused her to sustain multiple fractures and a subdural hematoma that was a causative factor in her death. Dr. Khimani opines that the Decedent was also caused to sustain unnecessary pain and suffering as a result of the failure of the nursing home staff to properly care plan for her fall risk and implement adequate fall preventions resulting in 3 falls. Within a reasonable degree of medical certainty, Dr. Khimani opines that the first fall on April 30, 2016 caused Gordon to sustain a displaced fracture of the left ischial tuberosity and that this fracture was not diagnosed until Gordon was admitted to Winthrop University Hospital on June 24, 2016, when she had a CT scan of her abdomen and pelvis following the June 24, 2016 fall where she sustained a subdural hematoma. He further opines that the fall of June 24, 2016 also caused a fracture of the L2 vertebral body and a non-displaced fracture of the right inferior pubic ramus (See Exhibit "1" at ¶¶ 3-4). Dr. Khimani agrees with Dr. Helfner's conclusion that the left comminuted ischial tuberosity fracture occurred during the April 30, 2016 fall as the fracture was showing partial healing (Id. at (|[44). He also agrees with Dr. Helfner's opinion that the L2 compression fracture and the nondisplaced right inferior pubic rami fracture were acute and caused by trauma, more likely the result of the June 24, 2016 fall (Id.).
Dr. Khimani disagrees with many of Dr. Tommasulo's opinions, and, in pertinent part, the defense expert's emphasis on Gordon's cognitive impairment as "little confusion." He opines that Dr. Tommasulo thereby negated Gordon's forgetfulness and the facility staffs failure to adequately recognize her as a safety risk. In this regard, Dr. Khimani opines that, by failing to recognize Gordon's impairment and risk, the Defendant's staff continued to rely on her ability to use a call bell, never addressing the inability to remember to do so (See Dr. Khimani Aff. At ¶ 60). Significantly, Dr. Khimani addresses the Defendant facility's failure to update the falls care plan after the first and second falls and disputes the defense expert's opinion that the care plan was updated. In this regard, Dr. Khimani's opinion regarding the facility's failure to properly initiate appropriate fall preventive measures upon admission, and then continued failure to update the care plan to include additional fall prevention measures, starkly contrasts the opinions of the Defendant's expert. Dr. Khimani points out several inconsistencies within the Defendant's own records, with specific references thereto, in connection with the facility's fall prevention and skin care measures. For instance, the Documentation Survey Report (Certified Nursing Assistant care records) reveals that turning and positioning were not implemented until May 20, 2016; and pressure relieving devices were not implemented until May 13, 2016.
More specifically, the Plaintiffs expert disagrees with the Defendant's expert regarding the appropriateness of the Falls Care Plan initiated upon Gordon's admission in that the interventions were inadequate for a resident with a history of falls, confusion and forgetfulness. Dr. Khimani opines that floor mats could have been used to prevent injury; personal alarms implemented in order to establish a baseline and determine whether or not Gordon made attempts to get up without assistance; alarms would have alerted the staff to the behavior and adjustments could have been made; and/or moving Gordon closer to the nurse's station for increased supervision (Id. At ¶¶ 26, 31, 51). He further opines that it was only after the third fall that the Defendant included the implementation of a chair alarm as a preventative measure upon the Decedent's return from the hospital (Id. At ¶ 37). Contrary to Dr. Tommasulo's opinions, Dr. Khimani notes that the only fall prevention measures in place were to remind Ms. Gordon of her limitations and encourage her to use the call bell; her fall risk was not appreciated and appropriate interventions were not implemented; and the staff failed to recognize her inability to remember to use the call bell and continued to rely on the intervention as a safety precaution. He firmly believes that Gordon's safety issue was related to her forgetfulness and not lack of ability to use the call bell. Dr. Khimani thus concludes that, "despite the [defense] expert's claim, the lack of safety awareness and intervention was a direct cause of Ms. Gordon's multiple falls which did result in injury. It is my opinion that the nursing home violated PHL 2801-d as it related to fall preventions and the falls and injuries sustained..." (Id. At ¶¶ 87-88).
Dr. Khimani also disagrees with the defense expert's opinions concerning whether an x-ray should have been ordered in response to the April 30, 2016 fall to rule out injury. He opines that, given Gordon's complaints of pain to the buttock after being found on the floor, an x-ray should have been ordered as pain is an indication of possible injury (Id. At ¶¶ 93-94).
Dr. Khimani also disagrees with Dr. Tommasulo's assessment and opinions regarding the CNA's presence in the room during the third fall and whether or not that fall (and resultant injuries) could have been prevented. Making specific reference to Dr. Tommasulo's opinion that the absence of an alarm did not proximately cause the June 24, 2016 accident because the aide was present in the room and only turned her back "momentarily," Dr. Khimani opines that the expert cannot render such an opinion as it is unknown when the aide turned around to see Gordon, how far away the aide was and how long she "momentarily" turned her back. He opines that, "[h]ad the personal alarm been in place, it would have activated as soon as Gordon began to stand up, alerting the aide to a potential fall and intervention may have been provided sooner." Dr. Khimani further points out that the CNA had turned her back on the patient for a long enough period of time that she was able to stand up from the wheelchair and fall forward on her face (Id. At ¶ 98). He highlights that the Defendant never specified the exact location of the CNA at the time of the fall - that is, how far away was the CNA from the patient that she would not have been able to timely assist in preventing the fall.
Moreover, Dr. Khimani disagrees with the defense expert's statement that Gordon did not have a significant history of falls prior to her June 24, 2016 fall, opining, "to suggest 2 falls at the facility and one fall prior to admission is an insignificant history implies that Ms. Gordon's prior falls did not entitle her to receive the highest level of safety intervention" (Id. at ¶100). He also disagrees with the expert's claims that there is a dignity issue when it comes to the use of personal alarms, explaining that there are alarms that do not infringe on a patient's dignity.
Dr. Khimani similarly disputes, with specific references to the medical records, the defense expert's opinions regarding whether the facility appropriately monitored and cared for the Decedent's skin impairments so as to prevent the development of new pressure ulcers. By way of example, Dr. Khimani points to the inaccuracy of Dr. Tommasulo's opinion that the sacral pressure ulcer was unavoidable because Gordon's sacral area was compromised "on admission" - opining that upon admission, Gordon's skin was noted to be intact without any signs of breakdown or blisters to that area (Id. At ¶ 104).
The Plaintiffs expert avers that Gordon was admitted to the Defendant's facility for short term rehabilitation with the intention of returning home. She had 3 falls while admitted to the facility as a result of inadequate safety interventions. She sustained multiple fractures and blunt force trauma to her head causing her death, expiring shortly after being transferred to Winthrop University Hospital. He concludes that the care provided at the Defendant's facility was substandard and lacked continuity. He opines that
Gordon's overall physical needs were inaccurately assessed, which resulted in the development of the sacral pressure ulcer, noting that interventions were not implemented for pressure relief until May 13, 2016 and after she returned from the hospital on May 19, 2016. He also notes that the facility's staff failed to appropriately assess Gordon's incontinence needs, stating she was continent when she was not, which resulted in improper incontinence care and skin breakdown (Id. at ¶¶105-107). Dr. Khimani ultimately opines that the falls were avoidable and the sacral bedsore was also avoidable. The delayed treatment caused Gordon to suffer unnecessarily as each day passed following the April 30, 2016 fall. He also concludes that the injury to Gordon's brain as a result of the June 24 fall exacerbated her underlying conditions and was a direct cause of her death. He cites to specific provisions of the PHL, opining that the violations thereof proximately caused Gordon's falls, injuries and ultimate demise (Id. at ¶111).
In considering the evidence proffered in opposition to the Defendant's motion, the Court finds that the Plaintiff has raised triable issues of fact as to whether the Plaintiffs Decedent received appropriate care at the Defendant's facility with respect to fall prevention measures and maintaining skin integrity, and whether the Defendant's alleged negligent treatment contributed to the multiple falls sustained, the resultant injuries therefrom, the development of the sacral pressure ulcer, and the Decedent's ultimate death. (Anzolone v. Long Island Care Center, Inc., 26 A.D.3d 449, 450 [2d Dept. 2006]; Vissichelli v. Glen-Haven Residential Health Care Facility, Inc., 136 A.D.3d 1021 [2d Dept. 2016]; Valensi v. Park Avenue Operating Co., LLC, 169 A.D.3d 960 [2d Dept. 2019]). In light of the differing opinions of the experts concerning whether the facility's fall prevention skin care measures were appropriate, there are clear questions of material fact that warrant a trial.
However, in response to the Defendant's prima facie showing with regard to the claims for gross negligence and punitive damages, the Plaintiff failed to raise an issue of fact.
Punitive damages may be assessed where a defendant's actions evinced a high degree of moral culpability which manifested a conscious disregard for the rights of others or conduct so reckless as to amount to such disregard (Valensi, 169 A.D.3d at 961, citing Welch v. Mr. Christmas, 57 N.Y.2d 143, 150; Walker v. Sheldon, 10 N.Y.2d 401, 404; Greenberg v. Meyreles, 155 A.D.3d 1001, 1003). "Such damages may be imposed for wanton or reckless disregard for the safety or rights of others where the conduct is 'sufficiently blameworthy,' and the award of punitive damages...advance[s] a strong public policy of the State by deterring its future violation" (Id. at 962, citing Randi A.J. v. Long Is. Surgi-Ctr., 46 A.D.3d 74, 81, quoting Doe v. Roe, 190 A.D.2d 463, 475; Giblin v. Murphy, 73 N.Y.2d 769, 772; Serota v. Mayfair Super Mkts., Inc., 15 A.D.3d 385). The violation of rights must be "so flagrant as to transcend mere carelessness" (Zabas v. Kard, 194 A.D.2d 784, 784). In addition, Public Health Law § 2801-d(2) permits punitive damages against a medical facility where a deprivation of a patient's rights is found to be willful or in reckless disregard to the patient's rights (Valensi, 169 A.D.3d at 962, citing Hairston v. Liberty Behavioral Mgt. Corp., 138 A.D.3d 467, 468).
Here, contrary to the Plaintiffs contentions, the Defendant established its prima facie entitlement to dismissal of the causes of action for gross negligence and punitive damages by demonstrating "the absence of any conduct that could be viewed as so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others" (Vissichelli, 136 A.D.3d at 1023, supra). In opposition, the Plaintiff failed to raise an issue of fact.
The parties' remaining contentions have been considered and the Court finds them to be without merit.
Accordingly, it is hereby
ORDERED, that the branch of the Defendant's motion, seeking an Order, pursuant to CPLR 3212, granting it summary judgment dismissing the Plaintiffs claims for gross negligence and punitive damages, is GRANTED; and it is further
ORDERED, that the branch of the Defendant's motion, seeking an Order, pursuant to CPLR 3212, granting it summary judgment dismissing the Plaintiffs claims for negligence, violations of the Public Health Law, and wrongful death, insofar as they relate to the care and treatment provided to the Plaintiff's Decedent in connection with the falls sustained and resultant injuries and the development of the sacral pressure ulcer, is DENIED.
All matters not specifically addressed herein are DENIED.
This constitutes the decision and Order of this Court.