The following e-filed documents, listed by NYSCEF document number (Motion 006) 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159 JUDGMENT SUMMARY. DECISION ORDER ON MOTION Defendant’s Motion for an Order extending its time to file a motion for summary judgment and deeming its current motion for summary judgment timely nunc pro tune is hereby granted. The Court now turns to Defendant’s Motion for summary judgment dismissal of Plaintiffs Complaint. In this Action, Plaintiff alleges that her father, decedent Erwin Burt (“Mr. Burt”), was an 85-year-old resident at the Defendant facility in 2016. When Mr. Burt was admitted to the facility on May 20, 2016, the staff deemed him a fall risk and implemented certain fall-risk protections, such as lowering the bed and installing “bed buddies” devices to prevent him from falling out of the bed. In August 2016, Mr. Burt was transferred to and treated at a hospital for pneumonia, sepsis and generalized weakness. After Mr. Burt returned to the Defendant facility, the staff updated his care plans on August 17, 2016 and subsequently reduced the interventions to prevent him from falling. On September 25, 2016, Mr. Burt fell out of his bed and suffered many injuries, including cervical spine fractures and an orbital fracture. Mr. Burt died on November 18, 2016. According to the Plaintiff, Defendant departed from the good and accepted standards of care in failing to adequately monitor and care for Mr. Burt. In addition to her allegations of medical malpractice and wrongful death, Plaintiff also brings a cause of action against Defendant for violation of Public Health Law 2801-d, which permits residents of a nursing home facilities to bring a cause of action if they are injured due to the nursing home’s deprivation of their rights. “A defendant in a medical malpractice action establishes prima facie entitlement to summary judgment by showing that in treating the plaintiff, he or she did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiff’s alleged injuries.” Anyie B. v. Bronx Lebanon Hosp., 128 AD3d 1, 3 [1st Dept 2015]. (See Costa v. Columbia Presbyt. Med. Ctr., 105 AD3d 525, 525 [1st Dept 2013]). Defendant submits the affidavit of Marirose Kaufman, a registered nurse admitted to practice in the State of New York, in support of its Motion for summary judgment. According to Ms. Kaufman, there is no evidence that any nurse, certified nursing assistant, physician or other employee of the Defendant facility departed from the standard of care while treating Mr. Burt. Ms. Kaufman maintains that Defendant developed a care plan that was appropriate for Mr. Burt and properly implemented interventions that were designed to cater to his needs while helping him maintain his independence. Significantly, Ms. Kaufman opines that the fall risk plan was “appropriately reviewed and updated” in August 2016 based on Mr. Burt’s recent illness. Ms. Kaufman states that the staff properly decreased the fall-risk interventions that were in place since Mr. Burt had no falls within the prior ninety days, made progress in physical therapy and had no history of being uncooperative with staff. According to Ms. Kaufman, Plaintiffs allegations under the Public Health Law are meritless since there is no evidence that Plaintiff’s rights were violated or that the facility was not properly staffed. This Court finds that based upon Ms. Kaufman’s affidavit, Defendant has demonstrated prima facie that it did not depart from the good and accepted standards of care. “Once a defendant has established prima facie entitlement to summary judgment, the burden shifts to plaintiff to ‘rebut the prima facie showing via medical evidence attesting that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged.”‘ Ducasse v. New York City Health and Hasps. Corp., 148 AD3d 434, 435 [1st Dept 2017] (internal citations omitted). Here, Plaintiff submits the affidavit of registered nurse Georgette M. Bieber, who maintains that Defendant’s negligence caused Mr. Burt’s fall. Ms. Bieber states that Mr. Burt’s fall could have been prevented, had the Defendant’s employees used proper and reasonable nursing care. In her affidavit, Ms. Bieber makes several specific allegations of Defendant’s departure from the standard of care, including the facility staff’s improper assessment of Mr. Burt’s fall risk on August 17, 2016 and their formulation of a care plan based on such assessment. Ms. Bieber goes through the “critical errors” that Defendant’s employees allegedly made in conducting the assessment and provides the values that the staff should have given Mr. Burt in each category when evaluating his risk of falling. Ms. Bieber opines that the Defendant facility’s decision to reduce the precautions that were in place to protect Mr. Burt from falling resulted in his “foreseeable” fall. According to Ms. Bieber, Mr. Burt’s subsequent spinal injuries and death are attributable to his fall on September 25, 2016. The Court finds that based on Ms. Bieber’ s affirmation, Plaintiff has sufficiently rebutted Defendant’s prima facie showing with regards to allegations of medical malpractice and demonstrated that an issue of fact exists as to whether Defendant departed from the standard of care and if such departure was a proximate cause of Mr. Burt’s injuries. However, the Court also finds that Plaintiff has failed to sufficiently rebut Defendant’s prima facie showing that it did not violate the Public Health Law, as Ms. Bieber does not address this issue in her affidavit. Therefore, Plaintiff’s cause of action under the Public Health Law is hereby dismissed. The Court notes that it does not permit the filing of supplemental reply expert affirmations. Therefore, the Court did not review or consider the supplemental reply expert affirmation submitted by Defendant. The Court also finds that Plaintiff has failed to defeat Defendant’s Motion to dismiss the cause of action for wrongful death. Pointing to Ms. Kaufman’s affidavit, Defendant argues that this claim should be dismissed because Mr. Burt’s fall was not predictable and his death was not the direct result of Defendant’s negligence. According to the Defendant, Plaintiff cannot demonstrate that any independent or intervening causes did not lead to Mr. Burt’s death or that Defendant’s alleged negligence was foreseeable to a reasonably prudent person. In opposition, Plaintiff fails to provide an affirmation by a medical doctor to overcome Defendant’s prima facie showing and instead relies upon Ms. Bieber’s affirmation. Since Ms. Bieber is a registered nurse and not a medical doctor, she lacks the qualifications necessary to render a medical opinion regarding Plaintiff’s wrongful death allegation. (See Novick v. S. Nassau Communities Hosp., 136 AD3d 999, 1001 [2d Dept 2016]; Elliot v. Long Is. Home, Ltd., 12 AD3d 481, 482 [2d Dept 2004]). Based on Plaintiff’s sole reliance on Ms. Bieber’s affidavit and failure to provide a sworn statement by a medical doctor, this Court finds that the cause of action for wrongful death must be dismissed. The Court also grants Defendant’s Motion to dismiss Plaintiffs claim for loss of consortium, as Plaintiff failed to oppose this portion of the Motion. Accordingly, it is hereby ORDERED that Defendant’s Motion to extend its time to file a motion for summary judgment and deeming its current motion for summary judgment timely nunc pro tune is granted; it is further ORDERED that Plaintiffs cause of action under the Public Health Law is hereby dismissed; it is further ORDERED that Plaintiffs cause of action for wrongful death is hereby dismissed; it is further ORDERED that Plaintiffs cause of action for loss of consortium is hereby dismissed; it is further ORDERED that the remainder of Defendant’s Motion for summary judgment is hereby denied; and it is further ORDERED that any and all additional requests for relief are hereby denied. THIS IS THE DECISION AND ORDER OF THE COURT. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 18, 2021
