Opinion
26366/15
05-17-2019
Joanne SIMMONDS, as Administratix of the Estate of Lucy Easter, and Joanne Simmonds, Individually, Plaintiffs, v. Richard M. DUNCALF, MD, Bronx-Lebanon Hospital Center, Workmen's Circle Home and Infirmary Foundation for the Aged, and New York State Braches, Inc., d/b/a Workman's Circle Multicare Center, Defendants.
Plaintiffs' Attorney, John Collorafi, Esq., Sinel & Associates, PLLC,7 Penn Plaza, 8th Floor, New York, NY 10001, (212)465-1000 Defendants' Attorney, Jessica A. George, Esq., Shaub, Ahmuty, Citrin & Spratt, LLP, 1983 Marcus Avenue, Lake Success, New York 11042, (516)488-3300
Plaintiffs' Attorney, John Collorafi, Esq., Sinel & Associates, PLLC,7 Penn Plaza, 8th Floor, New York, NY 10001, (212)465-1000
Defendants' Attorney, Jessica A. George, Esq., Shaub, Ahmuty, Citrin & Spratt, LLP, 1983 Marcus Avenue, Lake Success, New York 11042, (516)488-3300
Joseph E. Capella, J.
The following papers numbered 1 to 3 read on this motion, noticed on February 12, 2019, and duly submitted on April 2, 2019.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1
ANSWERING AFFIDAVIT AND EXHIBITS 2
REPLY AFFIDAVIT AND EXHIBITS 3
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
The defendants, Richard M. Duncalf, MD, and Bronx-Lebanon Hospital Center (BLHC), move for summary judgment ( CPLR 3212 ) and dismissal of the instant medical malpractice action. The plaintiff's bill of particulars alleges, in sum and substance, that Dr. Duncalf and BLHC failed to treat and prevent decedent's pressure ulcers on the buttocks, legs, sacrum, anterior right thigh and heels; failed to prevent infection to the pressure ulcers, causing sepsis, gangrene, scarring, debridement and nerve damage; failed to optimize decedent's nutrition intake to prevent dehydration, malnutrition, and further development of ulcers; caused, permitted and allowed emotional trauma and death; and failed to undertake various measures including implementation of pressure relief devices such as special air mattress, performance of skin assessments, evaluation of decedent's nutrition, and order laboratory studies. The then 80-year-old decedent arrived at BLHC emergency room on May 6, 2013, via ambulance with complaints of abdominal pain for three days. Lab tests revealed low hemoglobin and hematocrit, low platelets and high creatinine, and a chest CT revealed possible pneumonia. The plan included admitting decedent to the telemetry unit and starting antibiotics. On May 7, decedent was disoriented and wheezing, and as such, anesthesia was called and she was intubated, placed on a mechanical ventilator and transferred to the intensive care unit (ICU). One stage II pressure ulcer was noted on decedent's sacral spine, and five were noted on her right buttocks. On May 13, decedent was transferred to the telemetry unit and her pneumonia was noted to be improving. On May 23, decedent was approved for discharge to Workmen's Circle Home and Infirmary Foundation for the Aged (Workmen's Circle).
A telemetry unit is often referred to as a step-down from the ICU.
On June 5, decedent returned to BLHC via ambulance with complaints of shortness of breath, generalized weakness for one week, and lower abdominal pain. On June 6, decedent was admitted to the telemetry unit with her active issues assessed to include chronic obstructive pulmonary, dyslipidemia, chronic systolic and diastolic heart failure, stage III sacral decubitus ulcer, acute renal failure and six pressure ulcers. On June 18, decedent completed a course of antibiotics and her renal function was back to baseline, and on June 19, decedent was discharged to Workmen's Circle. On August 10, decedent was transferred back to BLHC due to altered mental status and acute renal failure. She was diagnosed with septic shock due to her hypothermia, hypo-tension, renal and circulatory failure, and was admitted. Decedent was intubated, and a sacral ulcer was noted and later evaluated as gangrenous and debrided by surgery. She was transferred to ICU, and on August 11, decedent remained unresponsive and critically ill. On August 14, decedent died of sepsis secondary to her infected sacral decubitus ulcer.
Where summary judgment relief is being sought, the movant 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 movants, these defendants must provide evidentiary proof in the form of expert opinions and/or factual evidence that establishes that they did not deviate from accepted standards of care and practice, and as such, their conduct was not a proximate cause of plaintiff'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.) In support of their summary judgment motion, the defendants provide an expert affirmation from a board certified internal and geriatric medicine specialist, Gisele Wolf-Klein, MD, and the affidavit of a nursing wound care expert, Mary Brennan, RN. These experts opine that defendants appropriately managed the care and treatment of decedent's pressure ulcers, and skin care protocols were appropriately implemented within good and accepted standards of care throughout each of decedent's admissions to BLHC. For example, Dr. Wolf-Klein and Nurse Brennan opine that decedent's ulcers were appropriately treated with debridement and antibiotics, with all appropriate skin care protocols implemented including complete bathing, keeping decedent's heels elevated off the bed, heel protection-device, positioning supports, specialty bed, and turning and positioning.
Defendants' experts also note that although decedent was critically ill and management of her pressure ulcers was limited by aspiration precautions and her co-morbidities, defendants continued to timely and consistently perform skin cleansing and turning and positioning, and utilized pressure-reducing devices including an air mattress and boots. Based on the aforementioned, the court is satisfied that Dr. Duncalf and BLHC have met their burden of producing evidentiary proof in admissible form sufficient to establish an entitlement to summary judgment. ( Zuckerman v. City of NY , 49 NY2d 557 [1980].) As the court's function in deciding a motion for summary judgment is issue finding rather than issue determination ( Sillman v. Twentieth Century-Fox , 3 NY2d 395 [1957] ), the burden now shifts to plaintiffs to likewise submit proof in admissible form sufficient to create issues of fact to warrant a trial ( Kosson v. Algaze , 84 NY2d 1019 [1995] ).
In opposition, plaintiffs submit an expert affirmation from a physician who is board certified in internal and geriatric medicine. According to this expert, accurate and consistent staging and sizing of pressure ulcers is essential in ensuring that pressure ulcers are aggressively met with the appropriate level of treatment. The expert points out that in various notes throughout the records, defendants listed the decedent's pressure ulcers without staging or sizing them. This expert also opines that decedent's skin breakdown under the treatment of defendants was not properly documented within decedent's medical records. Plaintiffs' expert further opines that defendants failed to document whether and how often decedent was given pressure relieving heel and air boots, how often decedent was bathed, or how often the dressing on decedent's pressure ulcers were cleaned/changed. It is well-settled that an expert opinion may not be conclusory or speculative, and must demonstrate the requisite nexus between the alleged malpractice and the alleged injury. ( Atkins v. Beth , 133 AD3d 491 [1st Dept 2015] ; Foster-Sturrup v. Long , 95 AD3d 726 [1st Dept 2010].) Here, plaintiffs' expert fails to specify how these alleged departures in documentation (emphasis added) actually affected decedent's care and treatment (Diaz v. NY Downtown , 99 NY2d 543 [2002]), and therefore, this opinion is insufficient to defeat summary judgment on this specific issue.
Plaintiffs' expert also opines that defendants' failure to order a nutritional consultation for decedent, in light of her declining albumin levels, violated the standard of care and demonstrated a failure to take all reasonable and necessary steps to prevent and limit the development and/or deterioration of decedent's pressure ulcers. However, the expert does not discuss the decedent's diet during her stay, and how this diet could have been adjusted by a nutrition expert to address decedent's declining albumin levels. ( Atkins , 133 AD3d 491 ; Foster-Sturrup , 95 AD3d 726.) The expert also opines that defendants' failure to order an infectious disease consultation, in light of decedent's worsening and growing pressure ulcers and her status as a high risk patient, was a departure and proximate cause of the development and/or deterioration of the pressure ulcers. However, the expert does not explain how an infectious disease expert may have altered the treatment being rendered at the time. ( Atkins , 133 AD3d 491 ; Foster-Sturrup , 95 AD3d 726.) The expert also opines that defendants failure to order a surgical consult during the May and June 2013 admissions violated the standard of care; however, the expert fails to point out where in the records this consultation was indicated and/or required. (Id. ) The opinion of plaintiffs' expert on the aforementioned is too conclusory to defeat summary judgment on these specific issues.
Albumin is a form of protein.
On the other hand, plaintiff's expert provides more specificity when it comes to turning and positioning. The expert explains that frequent turning and positioning of bed bound patients is critical in distributing pressure to different parts of the body. And on this issue, the expert notes that "none of the turning and positioning records in decedent's chart specifies (sic) whether care was" ... actually provided every two hours, which is the standard of care, including the times that decedent was turned and positioned, nor do they specify to which position decedent was changed. According to this expert, the records actually show that decedent was usually turned and positioned every four hours. It should be noted that on this issue (i.e., turning and positioning), it appears that the experts proffered by plaintiffs and defendants are in disagreement as to what exactly is contained in the various medical records. But keep in mind that in deciding a motion for summary judgment, the evidence must be construed in a light most favorable to the one moved against, ( O'Sullivan v. Presbyterian , 217 AD2d 98 [1st Dept 1995] ), which in this case are plaintiffs. Moreover, it is the fact finder (i.e., jury) who will hear from these experts the evidence that each one relies upon in forming the basis for their expert opinion, and in turn they will evaluate the weight and credibility of the testimony of these experts. ( Cassano v. Hagstrom , 5 NY2d 643 [1959] ; State v. Marks , 87 AD3d 73 [3rd Dept 2011].) And as such, summary judgment is not the appropriate mechanism to resolve this credibility dispute.
Defendants erroneously attempt to also rely on the testimony of plaintiffs' eyewitness, LaShawna Easter, to support their turning and positioning argument. However, the bulk of Ms. Easter's testimony is that decedent was turned and positioned "very often," which is too speculative and does not specify to which position the decedent was turned.
Plaintiffs' expert also alleges that the records show that defendants failed to implement a pressure-relieving bed for decedent's use. Similar to the turning and positioning records, on this issue (i.e., the use of a pressure-relieving bed), it appears that the experts proffered by plaintiffs and defendants are also in disagreement as to what is exactly contained in the various medical records. The defendants' experts allege that the records reveal that an air mattress was documented on May 7, 2013, and documented as being used throughout decedent's admission. But as already noted, in most instances, the fact finder (i.e., jury) will evaluate the weight and credibility of the testimony of these experts based on, inter alia , the evidence each one relies upon in forming the basis of their opinion. ( Cassano , 5 NY2d 643 ; State , 87 AD3d 73.) However, in addition to the records, the plaintiffs' eyewitness, LaShawna Easter, specifically testified that an air mattress was used throughout decedent's May, June and August 2013 admissions. The expert's failure to address this testimony by Ms. Easter, and instead merely reiterate that an air mattress was not documented in the records, makes this opinion insufficient to defeat summary judgment.
In sum, we are left with opposing experts disagreeing on material issues of fact regarding whether there was a departure as to turning and positioning, and whether said departure was a proximate cause ( Alvarez v. Prospect , 68 NY2d 320 [1986] ) — issues that must be resolved by the trier of fact. ( Barnett v. Fashakin, 85 AD3d 832 [2nd Dept 2011] ; Frye v. Montefiore , 70 AD3d 15 [1st Dept 2009]. As such, that portion of defendants' motion which seeks summary judgment regarding turning and positioning is denied. But as already discussed, plaintiffs have not met their burden of producing evidentiary proof in admissible form sufficient to create issues of fact as to the remaining issues raised in defendants' motion. (Alvarez , 68 NY2d 325.) Therefore, the balance of defendants' motion is granted. Defendants 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.