Upon the foregoing papers, the motion of the defendants Frances Schervier Home and Hospital, Schervier Nursing Care Center (hereinafter “SNCC or defendants”) for summary judgment pursuant to CPLR §3212 dismissing the plaintiff’s complaint is decided as follows: This lawsuit was commenced to recover damages for injuries sustained by plaintiff’s decedent, Margaret Pedoty, during her residence at SNCC in the Bronx. In the First, Fourth and Seventh Causes of Action, the plaintiff asserted claims against each defendant pursuant to Public Health Law §§2801-d and 2803-c. The Second, Fifth, and Eighth Causes of Action sound in negligence and gross negligence, and the Third, Sixth and Ninth seek damages for conscious pain and suffering. This action was discontinued as to defendant Franciscan Sisters of the Poor, Inc. on September 25, 2017, without prejudice. On February 15, 2012, the resident, Margaret Pedoty, initially was admitted to Defendants’ nursing home from New York Presbyterial Hospital (hereinafter “NYPH”) for long-term care due to progressive senile dementia. The attending physician’s history and physical note on admission to SNCC reflected that the resident previously had been admitted to NYPH due to a decline in mental status. The SNCC nursing admission assessment documented that the resident had no risk of elopement or wandering at that time. On February 16, 2012, the resident was evaluated by the physical therapy staff per physician’s orders. Physical therapy noted that the resident was at risk for falls due to unsteadiness of her gait. Additionally, the interdisciplinary team care plan of February 16, 2012 documented that the resident was at risk for fall due to dementia and use of necessary psychotropic drugs. The assessment further indicated that the resident ambulated independently and pursuant to a physician’s orders on February 18, 2012, the resident was to ambulate with a walker for safety and stability. On June 18, 2014 (the date of alleged negligence in this action), the resident fell. The resident (a designated 3 North resident), was found at 8:20 pm sitting on the floor of the 3 South hallway, by the fire exit double doors. The resident last had been observed safe and seated in front of the 3 North nurses’ station at 8:15 pm, within five minutes of the incident. Upon her fall, nurses evaluated the resident and noticed blood around the resident’s mouth and gums. She was assisted back to her bed by staff members. The resident’s attending physician ordered the resident transferred to an acute care facility, NYPH, for further evaluation and treatment. At NYPH, a CT scan of the resident’s head was performed and demonstrated a large left occipital lobar hemorrhage, with extension into the left lateral ventricle in the posterior region of the resident’s brain and a small left frontal subacute subdural hemorrhage. She was monitored overnight and on June 19, 2014, she was noted to be less responsive, no longer following commands, and she had decreased verbal output. The family requested she be transferred to New York University Langone Medical Center (hereinafter “NYU”), which was done. The resident arrived at NYU via ambulance at 9 pm on June 19, 2014. A head CT scan was performed at 9:30 pm and demonstrated the large left occipital parietal parenchymal hemorrhage, with brain compression. Palliative Care at NYU evaluated the resident on June 23, 2014. Based upon their recommendation, “DNR” (Do Not Resuscitate) and “DNI” (Do Not Intubate”) orders were instituted. The following day on June 24, the resident’s status was changed to comfort measures only after further discussion with family by Palliative Care. Tube feeding and IV medications that had been initiated were stopped. The external ventricular drain that had been placed to drain fluid from around the brain was removed and a suture was placed. On June 25, 2014, a plan was made in discussion with the resident’s family to transfer her to SNCC with Hospice care. On June 26, 2014, the resident was non-responsive and transferred from NYU back to SNCC. As she was designated “DNR” by the family, physician orders provided for palliative care only. A week later, on July 2, 2014, the 84-year-old resident expired. Defendants now move for summary judgment dismissing plaintiff’s complaint, asserting that the care and treatment they provided the resident comported with State and Federal regulatory requirements, facility protocol, standard of care, and the attending physician’s orders. In the alternative, the defendants seek an Order granting partial summary judgment to the extent that punitive damages are sought. The court’s function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). “[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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 574, 508 N.Y.S.2d 923, 925-926 [1986] [citations omitted].) Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978].) The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].) In support of its motion for summary judgment the defendants’ proffered an affidavit from Phyllis S. Quinlan, Ph.D., RN-BC, a nursing expert. In Dr. Quinlan’s opinion, the care and treatment the defendants provided to Mrs. Pedoty was entirely appropriate and comported with accepted nursing practice, was in accord with physicians’ orders, and complied with facility policy, as well as state and federal regulatory and statutory provisions for the care and treatment of residents in skilled nursing facilities. Dr. Quinlan also concluded that the defendants exercised all care reasonably necessary to prevent, or limit, the deprivation and injury for which liability is asserted against the defendants. In reaching these conclusion, Dr. Quinlan also stated that the defendants had implemented appropriate interventions. In addition, the Defendants proffered an affirmation from Jessie M. Weinberger, M.D., who attested that Ms. Pedoty suffered a stroke on June 18, 2014, and that this is what caused her to fall and, ultimately, led to her death. Dr. Weinberger also claimed that the autopsy report was incorrect because it reflected that Ms. Pedoty’s death was due to complication of the subdural hematoma from blunt impact of the head after the June 18, 2014 fall. The defendants also proffered an affidavit from Donald Mallo, the Human Resources Director at SNCC. Mr. Mallo stated that the Defendants extended nursing, and nursing assistant positions only to qualified, licensed, and certified staff and that they received and completed required continuing nursing care and in-services to satisfy State licensing and certification requirements. In opposition, plaintiff submits that the defendants are not entitled to an Order granting summary judgment in their favor and dismissing the complaint, as the record shows that defendants deprived Ms. Pedoty of rights and benefits to which she was entitled as a nursing home resident. At minimum, plaintiff maintains that issues of fact exist with respect to the question of whether the defendants violated Ms. Pedoty’s rights under the Public Health Law, whether they were negligent and/or grossly negligent, and whether the plaintiff is entitled to punitive damages. The plaintiff’s nursing expert, Kathleen Martin, RN, MSN, MPA, LNHA, CPHQ, WCC, disagreed with the defendants’ assertion that the subject accident was unpredictable and could not have been prevented. Ms. Martin asserts that because no one saw Ms. Pedoty leave the nurses’ station and ambulate to the other unit, and because the fall was unwitnessed, this was a total lack of supervision given the resident’s documented decline in activities of daily living function with regard to her difficulty ambulating, unsteady gait, and fall history. In addition, Nurse Martin found it unfathomable that Ms. Pedoty was never provided with a chair alarm, which could be used on a regular chair or wheelchair to alert the staff when she was getting up to wander. Plaintiff contends that a chair alarm would have been appropriate because Ms. Pedoty was documented for being at risk for wandering, she had poor decision-making capability due to her dementia and memory deficits, and she had a recent history of falls including on June 11, 2014, one week before the June 18, 2014 fall. In Nurse Martin’s view, it was abundantly clear that the defendants deprived Ms. Pedoty of her right to receive adequate supervision and assistive devices as mandated by federal and state law. Nurse Martin also found, based upon her review of the clinical records, that the defendants failed to update Ms. Pedoty’s care plans to reflect her decreased Activities of Daily Living functions, which constituted a clear and reckless deprivation of her right to have her care plans consistent with the needs and her assessments under federal and correspondent state codes. The plaintiff’s medical expert, Dr. Isaac Silverman, reviewed Ms. Pedoty’s nursing home and hospital records, radiology studies and reports, the autopsy report, and photographs of her traumatic injuries including autopsy photos. Based upon this review, Dr. Silverman concluded that Ms. Pedoty had suffered a major stroke on June 18, 2014, however he opined that while the stroke was unpreventable, the fall itself was absolutely preventable. In Dr. Silberman’s opinion, to a reasonable degree of medical certainty, had Ms. Pedoty been properly supervised, she would still have had the stroke, but she would not have suffered additional injuries caused by the unwitnessed and unsupervised fall. Dr. Silverman contends that Ms. Pedoty should have long ago been stopped from ambulating at the nursing home unless she had close, one-to-one supervision from a staff member walking with her. Dr. Silverman further opines that the relevant records indicate that Ms. Pedoty had multiple risk factors for falls, including heart disease, prior falls with soft tissue injury, unsteady gait, use of psychoactive and blood pressure drugs, intermittently agitated behavior, low vision, and advanced dementia. All of which Dr. Silverman contends were untreatable or irreversible. The statutory cause of action recites that it is brought pursuant to Public Health Law §2801-d, which confers a private right of action on a patient in a nursing home for injuries sustained as the result of the deprivation of specified rights (§2801-d[1]). Relief is predicated on Public Health Law §2803-c, as well as regulations set forth in 10 NYCRR §415, et seq. and 42 CFR §483, et seq. Defendant has not demonstrated their entitlement to summary judgement. There are obvious lapses in terms of appropriate supervision from the time of her admission to the date of her fall, given her condition. Assuming arguendo that defendants had demonstrated their entitlement, based on the conflicting medical expert opinions, this Court finds that summary judgement is not appropriate as there are issues of fact as to whether the defendants deprived Ms. Pedoty of rights and benefits to which she was entitled under Public Health Law §§2801-d and 2803-c and whether these deprivations caused injury. There are also issues of fact as to whether the defendants deprived Ms. Pedoty of the rights as a nursing home patient either negligently or with reckless disregard to the risk of harm. The credibility issues should be resolved by a jury. As part of plaintiff’s claims pursuant to the Public Health Law, plaintiff seeks punitive damages against defendants. Public Health Law §2801-d(2) states, in relevant part, that “where 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.” In the instant matter, plaintiff argues that punitive damages are warranted because the nursing home recklessly failed to provide the necessary care, thereby depriving Ms. Pedoty of her right to adequate supervision, adequate assistive devices, and care planning that was consistent with her needs and assessments. Further, plaintiff argues that defendants knew of Ms. Pedoty’s need for such interventions and knew that the failure to provide assistance while ambulating would likely lead to injury, but they didn’t do it. Punitive damages are warranted where the conduct of the party being held liable evidences a high degree of moral culpability (Giblin v. Murphy, 73 NY2d 769, 772 [1988]), or where the conduct is so flagrant as to transcend mere carelessness (Frenya v. Champlain Val. Physicians’ Hosp. Med. Ctr., 133 AD2d 1000, 1001 3rd Dept. 1987]), or where the conduct constitutes willful or wanton negligence or recklessness (Home Ins. Co., v. American Home Prods. Corp., 75 NY2d 196, 204 [1990]). It is not necessary that the conduct complained of be intentionally harmful (see Gruber v. Craig, 208 AD2d 900, 901 [2nd Dept. 1994]). Defendants met their initial burden on the motion by establishing the absence of any conduct that could be viewed as so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others (see Gauger v. Ghaffari, 8 AD3d 968 [4th Dept. 2004] and plaintiff failed to raise an issue of fact requiring a trial on this issue (see Alvarez Prospect Hosp., 68 NY2d 320, 324 [1986]). Contrary to the plaintiff’s contention, it cannot be reasonably concluded that the defendants’ conduct was such as would warrant the award of punitive damages to the plaintiff. Accordingly, it is hereby, ORDERED that defendants’ motion for summary judgment dismissing the plaintiff’s complaint is denied; and it is further ORDERED that defendants’ motion for partial summary judgment dismissing the claims for punitive damages is granted. This is the Decision and Order of the Court. Dated: January 11, 2022
