Opinion
Index No. 606029/2016 Mot. Seq. No. 001
11-26-2018
MARILYN RUSSELL, as Temporary Administrator Of the Estate of GEORGE RUSSELL, deceased, Plaintiff, v. RIVER MANOR CORP., KINGSBROOK JEWISH MEDICAL CENTER, ORLANDO B. CARPIO, M.D. and ORLANDO CARPIO, M.D., P.C., Defendants.
Unpublished Opinion
DECISION & ORDER
Sharon M.J. Gianelli Judge
Papers submitted on this motion:
Defendant Kingsbrook's Notice of Motion, Affirmation, Exhibits in Support ___________X
Plaintiffs Affirmation in Opposition___________X
Defendant Reply Affirmation ___________X
Defendant Kingsbrook's Reply Affirmation___________X
Background
Plaintiff Marilyn Russell's underlying action against Defendant Kingsbrook Jewish Medical Center (hereinafter "KJMC") is one for alleged negligence, medical malpractice, and wrongful death for failing to prevent and treat Plaintiffs decedent father's pressure ulcers during two (2) hospital admissions: August 15 to August 23, 2013 and September 11 to October 1, 2013, allegedly resulting in Plaintiffs father's death on May 21, 2014, approximately eight (8) months following his discharge. Plaintiff also seeks punitive damages based on an allegation of gross neglect. In the instant action before the Court, Defendant KJMC moves for an Order granting Defendant summary judgment as to KJMC pursuant to CPLR section 3212 dismissing Plaintiffs complaint and directing an Entry of Judgment in favor of KJMC.
Plaintiff opposes asserting that Defendant KJMC's expert's affirmation is conclusory and lacking in the requisite specificity to support a summary judgment claim. Further, Plaintiff alleges that facts concerning the care rendered by Defendant KJMC create triable issues of fact which therefore serves as a bar to summary judgment in favor of Defendant KJMC.
The Court heard oral argument on November 15, 2018.
Facts
The decedent, George Russell, was admitted to Defendant River Manor Nursing Home (hereinafter "River Manor") on September 30, 2009 to undergo rehabilitation following a cerebro-vascular accident. The decedent remained at River Manor until he was transferred to KJMC on August 15, 2013 for treatment of a cough and fever. At the time of his admission to KJMC, Mr. Russell was eighty-one (81) years old, and suffered from numerous pre-existing conditions and multiple co-morbidities, including dementia, hypertension, and uncontrolled diabetes. Additionally, he had limited mobility, could not perform daily self-care, and also had several pressure ulcers. Mr. Russell was discharged from KJMC on August 23, 2013. On September 11, 2013, Mr. Russell was re-admitted to KJMC's intensive care unit from River Manor for the treatment of septicemia. On October 1, 2013, Mr. Russell was discharged to non-party New York Congregational Nursing Home and received no additional treatment at KJMC. During each stay at KJMC, the decedent was under the care of his doctor, Defendant Dr. Orlando Carpio, and the KJMC staff tended to his daily care.
On May 19, 2014, Mr. Russell was admitted to Brooklyn Hospital with a fever and tachycardia. Upon admission, he was found to have several other co-occurring conditions and illnesses. Mr. Russell died at Brooklyn Hospital on May 21, 2014. The Plaintiff, on behalf of the decedent, thereafter commenced this action to recover damages for negligence, medical malpractice, and wrongful death.
Law/ Ruling
"In order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiffs injuries. 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." Leavy v Merriam, 133 A.D.3d 636, 637 [2nd Dept. 2015], citing Salvia v St Catherine of Siena Medical Center, 84 A.D.3d Here, Defendant KJMC made a prima facie showing warranting summary judgment by submitting the affirmation of an expert doctor, Dr. Jeffrey Levine, M.D., A.G.S.F., C.W.S.-P, which provided a detailed account of the decedent's care and treatment while under admission at Defendant KJMC. The affirmation provided a detailed assertion that KJMC did not engage in negligence in the care and treatment of the decedent nor did it depart from accepted standards of care in his treatment, and concluded that the decedent's age, critical health status, pre-existing conditions (including pressure ulcers), significant co-morbidities, 1053 [2011]; Heller v Weinberg, 77 A.D.3d 622 [2010]. "Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause." Lyons v. McCauley, 252 A.D.2d 516, 517 [1998], citing Koehler v. Schwartz, 48 N.Y.2d 807, [1979]. The movant must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]; see also Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). Once such a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a trial of the action (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986], see also Zuckerman v. City of New York, supra). and declining health prior to his stay at Defendant KJMC were the cumulative cause of the injuries suffered by Mr. Russell which led to his death.
An affirmation in opposition submitted by Plaintiffs expert, Dr. Perry Starer, MD, alleged that Defendant KJMC's expert conclusions lacked required specificity and were conclusory. He further alleged that Defendant KJMC failed to create a care plan for the decedent's pressure ulcers and failed to properly assess the decedent's pressure ulcers and to implement appropriate pressure ulcer interventions, leading to the development of serious pressure ulcers and a worsening of the existing pressure ulcers, which resulted in serious injuries and was a proximate cause of his death.
Plaintiffs expert's assertions concerning the alleged deficiencies in Defendant KJMC's expert affirmation are contradicted by the veiy content and substance of Defendant KJMC's expert affirmation, which provides a sufficiently detailed account of the care rendered by KJMC to the decedent during his two (2) stays at KJMC. Further, the Court finds that evidence of some missing patient chart information, as well as certain arguably less-detailed chart information pertaining to an aspect of the decedent's care is not material relative to the total body of material and pertinent information kept and maintained by Defendant KJMC concerning the decedent's care. Further, as Plaintiffs expert fixes Defendant KJMC's alleged lack of proper planning and care of Mr. Russell as "a proximate cause" of his death, Plaintiffs expert failed to sufficiently counter KJMC's expert's assertions that decedent's age, critical health status, pre-existing conditions (including pressure ulcers), significant co-morbidities, and declining health led to his injuries then ultimate death.
Upon hearing oral argument and reviewing the submissions of the parties, and upon consideration of a totality of the facts and circumstances herein, Defendant KJMC's application for an Order awarding summary judgment pursuant to CPLR section 3212 dismissing Plaintiffs complaint and directing an Entry of Judgment in favor of KJMC is GRANTED.
All requests not specifically addressed herein are DENIED.
This constitutes the Decision and Order of the Court.