The following e-file papers numbered EF 273-298, 308-315 and 317-319 fully submitted and considered on this motion by defendants QUEENS CENTER FOR REHABILITATION & RESIDENTIAL HEALTH CARE and CLEARVIEW OPERATING CO LLC., (hereinafter referred to as “Defendants”) seeking an order granting summary judgment pursuant to Civil Practice Law and Rules (hereinafter referred to as “CPLR”) 3212 dismissing plaintiff’s, ANDREW LEE as Administrator of the Estate of JAMES LEE, deceased (hereinafter referred to as “Plaintiff”), Verified Complaint and for such other and further relied as this Court deems just and proper. Papers Numbered Notice of Motion — Aff. — Exhibits EF 273-298 Affirmation in Opp — Exhibits EF 308-315 Reply EF 317-319 This is a medical malpractice action arising out of the death of decedent JAMES LEE (hereinafter referred to as “Decedent”) which occurred while he was at Queens Center. The Decedent was transferred to Queens Center from Beth Israel Hospital on July 27, 2012 because of a decline in his functionality as a result of Amyotrophic Lateral Sclerosis (“ALS”). The Decedent committed suicide on August 5, 2012 between 3:30 AM and 4:55 AM, eight days after his admittance into Queens Center. Plaintiff claims Defendants violated Public Health Law__2801-d, 2803-c, were grossly negligent and that Defendants actions contributed to the Decedent’s wrongful death. Summary Judgment The Court’s function on a motion for summary judgment is “to determine whether material factual issues exist, not to resolve such issues” (Lopez v. Beltre, 59 AD3d 683, 685 [2d Dept 2009]; Santiago v. Joyce, 127 AD3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, “it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues…or where the issue is ‘arguable’” [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see also Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]; Andre v. Pomeroy, 35 NY2d 361 [1974]; Stukas v. Streiter, 83 AD3d 18 [2d Dept 2011]; Dykeman v. Heht, 52 AD3d 767 [2d Dept 2008]. Summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Collado v. Jiacono, 126 AD3d 927 [2d Dept 2014]), citing Scott v. Long Is. Power Auth., 294 AD2d 348, 348 [2d Dept 2002]; see Chimbo v. Bolivar, 142 AD3d 944 [2d Dept 2016]; Bravo v. Vargas, 113 AD3d 579 [2d Dept 2014]). “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Ayotte v. Gervasio, 81 NY2d 1062, 1063 [1993], citing Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; see Schmitt v. Medford Kidney Center, 121 AD3d 1088 [2d Dept 2014]; Zapata v. Buitriago, 107 AD3d 977 [2d Dept 2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (Zuckerman v. City of New York, 49 NY2d 557 [1980]). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 NY2d 851 [1985]). Medical Malpractice and Gross Negligence In Richard A. Marra v. George B. Hughes et al., 123 AD3d 1307 (3d Dept 2014), plaintiff brought suit against his treating physician and physical therapist alleging medical malpractice for a failure to diagnose a spinal infection. “In a medical malpractice action, it is the plaintiff’s burden to establish both a deviation from accepted practice and that the deviation was the proximate cause of the injury” (id at 1308). In this action the “defendant was required to establish, through competent evidence, “either that there was no departure from accepted standards of practice in plaintiff’s treatment or that any such deviation did not injure plaintiff” (id). The court held plaintiff could not prove that the actions of his physical therapist was the proximate cause of his injuries and granted summary judgment (id at 1309). Here, Plaintiff alleges Defendants violated Public Health Law __ 2801-d and 2803-c. Public Health Law _ 2801-d states, as highlighted by Plaintiff, in relevant part: 1. Any residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation, except as hereinafter provided. For purposes of this section a “right or benefit” of a patient of a residential health care facility shall mean any right or benefit created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation, where noncompliance by said facility with such statute, code, rule or regulation has not been expressly authorized by the appropriate governmental authority. 2. [W]here the deprivation of any such right or benefit is found to have been willful or in reckless disregard of the lawful rights of the patient, punitive damages may be assessed. 4. The remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings, including tort causes of action, and may be granted regardless of whether such other remedies are available or are sought. Plaintiff alleges the Defendants deprived the Decedent of the rights or benefits set forth in 42 CFR __ 483.20, 483.25, 483.30 and 10 NYCRR 415.12 (a)(1). 42 CFR _ 483.20, as highlighted by Plaintiff, states in relevant part: (d) Use. A facility must maintain all resident assessments completed within the previous 15 months in the resident’s active record and use the results of the assessments to develop, review, and revise the resident’s comprehensive plan of care. (g) Accuracy of assessments. The assessment must accurately reflect the resident’s status. Plaintiff alleges while care plans were developed for the Decedent, there is no indication that any of them were implemented. Plaintiff points to a psychiatric evaluation that took place on July 28, 2012 where the doctor recommended Ambien at bedtime to treat the Decedent’s insomnia, however, there were no orders received for the medication to treat the Decedent. Plaintiff argues Tylenol was suggested for the Decedent on an as needed basis but there is no indication Plaintiff ever received Tylenol. Defendants expert Dr. Goldberg stated Ambien could not be prescribed to Decedent because Ambien is a sedative that would suppress the recipients respiratory system, which would be dangerous for someone like the Decedent who was diagnosed with ALS. Alternatively, Defendants note an alteration in sleep pattern care plan was implemented upon Decedent’s admission. 42 CFR _ 483.25 as highlighted by Plaintiff, states in relevant part: Quality of care. Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents. Based on the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice… (d) Accidents. The facility must ensure that — (1) The resident environment remains as free of accident hazards as is possible; and (2) Each resident receives adequate supervision and assistance devices to prevent accidents. The facts suggest that the Decedent used the electrical cord connected to his bed to assist in his suicide. Plaintiff has not proven that an electrical cord is hazardous. 42 CFR _ 483.30 (effective December 27, 2005 to November 27, 2016) as highlighted by Plaintiff, states in relevant part: Nursing services. The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. Plaintiff alleges despite the Defendants finding on August 3, 2012 that the Decedent was suffering from moderate depression, there were no nurse notes on August 4, 2012 furthermore, there were no CNA entries for the shifts of 3PM — 11PM on August 4, 2012 which may indicate Decedent was neither monitored nor cared for during that time period. 10 NYCRR _ 415.12 (a)(1)(v) as highlighted by Plaintiff, states in relevant part: (a) Activities of daily living. Based on the comprehensive assessment of a resident, the facility shall ensure that: (1) a resident’s abilities in activities of daily living do not diminish unless circumstances of the individual’s clinical condition demonstrate that diminution was unavoidable. This includes the resident’s ability to: (v) use speech, language or other functional communication systems Upon admission, Decedent was noted to speak and understand Korean, that he understood English but could speak very little. Defendants testified that they utilize a phone service to communicate with non-English speaking residents. However, neither testimony nor notes indicate that the phone service was utilized to communicate with the Decedent. Public Health Law _ 2803-c (e) states in relevant part: “[e]very patient shall have the right to receive adequate and appropriate medical care” Plaintiff alleges Defendants did not provide “adequate and appropriate medical care” (id) to Decedent in violation of 10 NYCRR __ 415.3(f), 415.11, 415.12 and 415.13. 10 NYCRR _ 415.3(f) as highlighted by Plaintiff states in relevant part: f. Right to clinical care and treatment. (1) Each resident shall have the right to: (i) adequate and appropriate medical care, and to be fully informed by a physician in a language or in a form that the resident can understand, using an interpreter when necessary, of his or her total health status, including but not limited to, his or her medical condition including diagnosis, prognosis and treatment plan. Residents shall have the right to ask questions and have them answered… As stated above, despite the fact that the Defendants were notified that the Decedent spoke/ understood Korean and understood English but could speak very little. It is not clear, that the Defendants utilized their resources to communicate with the Plaintiff in Korean. 10 NYCRR _ 415.11 as highlighted by Plaintiff states in relevant part: Upon admission and periodically thereafter the facility shall conduct a comprehensive, accurate, standardized, reproducible assessment of each resident’s functional capacity. Based on the results of these assessments, the facility shall develop and keep current an individualized comprehensive plan of care to meet each resident’s needs. Plaintiff argues Defendants failed to implement the care plans they created for the Decedent that based on findings that the Decedent had adjustment disorder and moderate depression the nursing notes fail to accurately reflect the Decedent’s condition. 10 NYCRR _ 415.12 as highlighted by Plaintiff states in relevant part: (h) Accidents. The facility shall ensure that: (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistive devices to prevent accidents. As stated above, the facts suggest that the Decedent used the electrical cord connected to his bed to assist in his suicide. Plaintiff has not proven that an electrical cord is hazardous. 10 NYCRR _ 415.13 as highlighted by Plaintiff states in relevant part: (a) Sufficient staff. (1) The facility shall provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans: (i) registered professional nurses or licensed practical nurses; (ii) certified nurse aides; and (iii) other nursing personnel. Plaintiff alleges lack of nurses notes and CNA entries on August 4, 2012 suggest Decedent received little to no care on that date despite an August 3, 2012 finding that Decedent was suffering from moderate depression and a finding on July 28, 2012 that Decedent had adjustment disorder. It is Defendants burden to prove, through competent evidence, “either that there was no departure from accepted standards of practice in plaintiff’s treatment or that any such deviation did not injure plaintiff” (Marra at 1308). In support of the motion Defendants present two expert affidavits one from John C. Abrams a psychiatric nurse practitioner and one from Roy J. Goldberg a board certified physician. John C. Abrams, RN based his opinion, among other things, upon his review of the Decedent’s medical records, the depositions of the parties, the bill of particulars, the incident reports, the autopsy report and his own personal education, experience and expertise. Abrams opined that to a reasonable degree of psychiatric nursing the Decedent’s suicide was unexpected, unavoidable and was not the fault of the Defendants. According to Abrams, the Decedent denied suicidal ideation, continued with treatments and therapy, continued to eat, continued to interact with nursing staff and family and did not express thoughts of self harm. Abrams notes the Decedent’s diagnosis with adjustment disorder and moderate depression are not enough to indicate that someone would commit suicide. Abrams further opines that there was no departure from the appropriate standards of care in the care and treatment of the Decedent. According to Abrams, Plaintiff was appropriately assessed by a psychiatrist within one day of his admission and it was ordered that he receive weekly psychotherapy as a result. However, according to Abrams, the Decedent’s admission was short from July 27, 2012 to August 5, 2012, and “it would be almost impossible to get an accurate understanding of his mental state in such a short period of time and especially due to him not having any pre-existing mental conditions.” Dr. Goldberg based his opinions upon the Decedent’s medical records, the bill of particulars, deposition transcript of the parties, the incident reports, the autopsy report and his own personal education, experience and expertise. Dr. Goldberg opined that to a reasonable degree of medical certainty, the care the Decedent received was not the proximate cause of the Decedent’s injuries. Furthermore, Dr Goldberg opined that the care and treatment the Decedent received does not meet the standards of gross negligence. Dr. Goldberg notes that therapy is highly dependent upon the self-reporting of the patient and the weekly sessions prescribed for the Decedent were appropriate. Dr. Goldberg further opines that there was no indication that a dangerous condition existed in the Decedent’s room. Defendants have established prima facie entitlement to summary judgment. The burden now shifts to Plaintiff to raise a triable issue of fact. In opposition Plaintiff presents two expert affidavits one from Anissa Abi-Dargham a board certified physician and one from Dr. Tracey Burkhardt a registered nurse. Dr. Abi-Dargham based her opinion upon records from Queens Center for Rehabilitation and Residential Health Care including incident investigations and witness statements, North Shore University Hospital and Beth Israel Medical Center. Also, Dr. Abi-Dargham based her opinion upon the death certificate, autopsy report, deposition transcripts and her professional expertise. Dr. Abi-Dargham opined that within a degree of medical certainty, the care rendered to the Decedent fell below the accepted standards of medical and psychiatric care. Dr. Abi-Dargham points to the Decedent’s language barrier that despite the Defendants knowledge of the same, they failed to use an interpreter to communicate with him. According to Dr. Abi-Dargham, lack of an interpreter may have resulted in the Decedent’s failure to truly communicate his feelings during psychiatric consultations and social work consultations. Dr. Abi-Dargham points to the absence of proof that the Decedent was given the Tylenol that was prescribed, despite multiple entries which discuss the reports of pain by the Decedent. Tracey Burkhardt, RN based her opinion upon records from Queens Center for Rehabilitation and Residential Health Care including incident investigations and witness statements, North Shore University Hospital and Beth Israel Medical Center. Also Burkhardt based her opinion upon the death certificate, autopsy report, deposition transcripts and her professional expertise. Burkhardt opined that the Defendants failed to: comply with state and federal law by failing to ensure that Decedent had a right to participate in the development and implementation of his person-centered care plan; to establish, document, and implement the care and services to be provided to Decedent; and to ensure that the Decedent received appropriate treatment and services to correct the assessed problem. Burkhardt points to the lack of an alternative medication prescribed to Decedent once it was determined that Ambien could not be used to treat his insomnia. Burkhardt further opines despite the extensive care plans created for Decedent there is no documentation to evidence that such plans were carried out. The Plaintiff has raised triable issues of fact surrounding whether the Defendants breached their duty to the Decedent and whether such breach was a proximate cause of the Decedent’s injuries. Wrongful Death In Rosa E Quinones, as Administratix of the Estate of Robertito Gutierrez v. Hotel Robert Burns, Inc., 22 Misc.2d 729, 730 (Sup Ct NY County 1960) plaintiff sued defendant for wrongful death after an infant who was locked in the bathroom at the premises jumped from the window. Plaintiff alleged defendant was negligent in failing to maintain the door lock in good and safe operating condition and in allowing the bathroom window to stay open despite the presence of infants (id). The court looked to Lane v. City of Buffalo, 232 AD 334, 338 (4th Dept 1931) where the court stated “Negligence is to be gauged by the ability of one to anticipate danger. The test of actionable negligence is not what could have been done to have prevented a particular accident, but what a reasonably prudent and careful person would have done under the circumstances in the discharge of his duty to the injured party. Failure to guard against a remote possibility of accident, or one which could not, in the exercise of ordinary care, be foreseen, does not constitute negligence.” Here, there are issues of fact surrounding whether the Decedent’s suicide was preventable. Therefore, it is ORDERED, that the Defendants motion for summary judgment is denied in its entirety. The foregoing constitutes the decision and Order of this Court. Dated: January 23, 2020
