Opinion
Index No. 524961/2018 Motion Seq. No. 5
08-06-2024
LOUSE SIMPSON, as Administratix of the Estate of SABASTIEN SIMPSON, and LOUISE SIMPSON individually, Plaintiff, v. HEART TO HEART HOME CARE, CENTERLIGHT CERTIFIED HOME HEALTH AGENCY, THE BROOKLYN HOSPITAL CENTER, and CONCORD NURSING HOME, INC. Defendants.
Unpublished Opinion
DECISIONAND ORDER
Honorable Ellen M. Spodek, J.S.C
Upon the Notice of Motion, Affirmations in support, and attached exhibits submitted on behalf of defendant CENTERLIGHT CERTIFIED: HOME HEALTH AGENCY (hereinafter "CCHHA" Or "movant") in support of their motion, pursuant to CPLR § 3212, seeking summary judgment on all causes of action by Plaintiff in this matter and dismissing the Complaint as against them; the Affirmations in opposition to tire motion and attached exhibits by Plaintiff; and CCHHA's Reply Affirmation (motion #5); and after haying heard oral argument by counsel for CCHHA and counsel for Plaintiff in support and in opposition to the motion, the transcript of which is incorporated by reference, it is ORDERED as follow:
ORDERED, that CCHHA's motion for summary judgement pursuant to CPLR § 3212 is hereby GRANTED in its entirety, that all causes of action against CCHHA are hereby dismissed, and that the Complaint against CCHHA in this matter is likewise dismissed.
The instant action against CCHHA consists of claims of medical malpractice and negligence relating to home health nursing care provided to plaintiffs-decedent, Sabastien Simpson ("decedent"), from 171/16 to 6/24/16, whereby Plaintiff alleges that CCHHA caused the decedent to develop and to suffer from pressure ulcers to the sacrum, underarm, scalp, back/flank area, and left heel, as well as infection and osteomyelitis associated with the sacral ulcer, dehydration and malnutrition, and ultimately the decedent's death on 8/26/16, more than 2 months after he left the care of CCHH A.
In support of their motion, CCHHA submitted an Affirmation from a physician, licensed in New York and specializing in Geriatric Medicine, Dr. Lawrence Diamond. Dr. Diamond established upon the records in this case, which were submitted to CCHHA's motion as exhibits, that the sacral ulcer in question preexisted the period of alleged negligence by CCHHA (1/1716 to 6/24/16) and was stage 4 and measured 5.5 x 7.0 x 3.0 cm just prior to the period of alleged negligence. Dr. Diamond opined, with detailed references to the records and the standards of care applicable to CCHHA personnel, that the care provided by CCHHA relative to the decedent's sacral ulcer was appropriate and consistent with the standard of care. Further, as cited by Dr. Diamond and established by the records, the sacral pressure ulcer at issue was generally healing and improving while under the care at CCHHA during the period of their alleged negligence and as of the last time the sacral ulcer was measured while the decedent was under the care of CCHHA. on 6/21/16, 3 days before the decedent left the care of CCHHA on 6/24/16, the sacral ulcer had significantly improved and had significantly decreased in size, measuring only 0.5 x L0 X 0.5 cm.
Dr. Diamond opined and established based upon the records that contrary to plaintiff's allegations, the decedent's sacral ulcer never showed any signs or symptoms of infection or osteomyelitis while under the care of CCHHA. Dr. Diamond opined, based on a detailed review of the records, that the decedent's sacral ulcer did not show any signs of infection until on or about 8/10/16, some 1.5 months after the decedent left the care of CCHHA, and did not show any signs of osteomyelitis until 8/20/16, some 2 months after the decedent left the care of CCHHA, and accordingly neither was attributable to any of the care rendered by CCHHA.
Dr. Diamond opined and established based upon the records that despite plaintiff s allegations, the decedent never had a left heel ulcer while under the care of CCHHA and that the first references to a left heel ulcer are in the records of co-defendant Brooklyn Hospital, after the decedent was no longer under the care of CCHHA, and that the left heel ulcer was not attributable to any of the care rendered by CCHHA.
Dr. Diamond opined and established based upon the records that the alleged pressure ulcers on the decedent's underarm, scalp area, and back/flank area were not pressure ulcers but topographical fungal skin infections, which were not caused by any negligence of lack of care by CCHHA and were appropriately and promptly responded to by CCHHA by referring the decedent to their primary care physician and Brooklyn Hospital for treatment.
Dr. Diamond opined and established based upon the records that there was no indication that the decedent suffered, from dehydration or malnutrition while under the care of CCHHA and that the care provided by CCHHA was proper and appropriate to ensure that the decedent was receiving adequate hydration and nutrition. CCHHA personnel regularly communicated with the decedent's daily caregivers about the decedent's nutritional intake and hydration status and the importance of same, regularly? documented adequate hydration and nutritional intake, and in the days after the decedent left the care of CCHHA she was described by Brooklyn Hospital personnel as ''well nourished."
Lastly, Dr. Diamond opined and established based upon the records that the death of the decedent was not caused by any act or omission on behalf of CCHHA. The decedent's death on 8/26/16, occurred more than two months after she left the care of CCHHA. The cause of the decedent's death was noted to be cardiopulmonary arrest due to sepsis/infected decubitus ulcer, with hypertension and cerebral vascular accident listed as other significant conditions contributing to her death. As the decedent did not show any signs of a possible infected sacral ulcer or sepsis until some month and a half after CCHHA last treated her, and as hypertension and cerebral vascular accident were part of the decedent's medical history which long predated the dates of negligence alleged CCHHA, Dr. Diamond concluded that the decedent's death was in no way caused by the care received by CCHHA.
Accordingly, upon the affirmation of Dr, Diamond, the facts of this case, and the other evidence submitted, it was determined that CCHHA made a prima facie showing of entitlement to summary judgment judgement (see Winegrad v. 'New- York University' Medical Center, 64 N,Y.S,2d 851 (1985); Zuckerman w City of New York, 49 N.Y.S.2d 557 (1980); see also CPLR §3212). Once the movant has established a prima facie showing of entitlement of summary judgment, the opposing party must come forward with sufficient evidence in admissible form demonstrating die presence of material issues of fact that would require a trial of this matter in order to defeat summary judgment (see Alvarez v. Prospect Hospital, 68 N.Y.2d 325 (1986). Concluspry assertions, or unsubstantiated allegations, will not defeat a motion for summary judgment. Rather, the opponent must present well-reasoned and supported proof in admissible form sufficient to raise a triable issue of fact, (see Freedman v. Chemical Construction Corp., 43 N,Y,2d 260 (1977).
Upon having read plaintiffs affirmations submitted in opposition to CCHHA1 S motion and the attached exhibits, including the affirmations from plaintiff's experts, and having heard oral argument by counsel for the respective parties, it is determined that plaintiff has failed to come forward with sufficient evidence to demonstrate the presence of a material issue of fact that would require a trial of this matter.
Accordingly, the Court hereby grants CCHHA's motion for summary judgement in its entirety, dismissing all causes of action against CCHHA by plaintiff, dismissing the Complaint as against, and dismisses CCHHA from this action.
The foregoing constitutes the decision and order of the Court.