Opinion
Index No. 21352/12
08-05-2022
Gloria Elliott, as Administrator of the Estate of MINNIE G. ELLIOTT, Plaintiff, v. Americare Certified Special Services, Inc., LORIS OMESH DREPAUL, M.D., and ESSEN MEDICAL ASSOCIATES, Defendants.
Plaintiff's Attorney Mary Mathwich, Esq. Doolan Platt & Setareh, LLP ACSS Attorney Niall Harding, Esq. Milber Makris Plousadis & Seiden, LLP
Unpublished Opinion
Plaintiff's Attorney
Mary Mathwich, Esq.
Doolan Platt & Setareh, LLP
ACSS Attorney
Niall Harding, Esq.
Milber Makris Plousadis & Seiden, LLP
JOSEPH E. CAPELLA, J.
The following papers numbered 1 to 3 read on this motion.
PAPERS NUMBERED
NOTICE OF MOTION, AFFIRMATIONS AND EXHIBITS 1
ANSWERING AFFIRMATIONS AND EXHIBITS 2
REPLY AFFIRMATION AND EXHIBITS 3
UPON THE FOREGOING CITED PAPERS, THIS MOTION IS DENIED AS FOLLOWS:
The four causes of action that plaintiff alleges in this home health care action are negligence, medical malpractice, lack of informed consent and wrongful death. And the crux of plaintiff's claim is that defendants failed to prevent and treat decedent's pressure ulcers between April 2008 and June 2010, resulting in injuries, associated sequelae and eventual death on July 12, 2010. Defendant, Americare Certified Special Services, Inc. (ACSS), is the home health agency that provided registered nurses to assess decedent and prepare care plans to address her needs. ACSS retained non-party, Americare, Inc. (Americare), to provide decedent with home health aides who provided the non-skilled nursing care. According to plaintiff, the aides did not properly turn and position decedent to prevent and care for the pressure ulcers. Plaintiff seeks partial summary judgment (CPLR 3212) against ACSS on the theory that ACSS is vicariously liable for the acts or omissions of the aides from Americare. According to plaintiff, vicarious liability is established by Federal (42 CFR § 484.14) and State regulation (10 NYCRR § 763.12(a)(5) and (8)), and the common law theory of agency in fact. (Chichester v Wallace, 150 A.D.3d 1073 [2nd Dept 2017]; Langer v Primary, 83 A.D.3d 1007 [2nd Dept 2011]). In opposition, ACSS argues that there are issues of fact as to whether it can be held vicariously liable for the acts or omissions of Americare.
As summary judgment relief is being sought, plaintiff 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 N.Y.2d 320 [1986].) Here, plaintiff notes that under Federal regulations, home health care agencies such as ACSS and Americare are responsible for, inter alia, ensuring and supervising the overall quality of the care provided by aides. (42 CFR §§ 484.14, 484.36.) And under New York State regulations, services provided to a patient must be in accordance with a plan of care, and "the agency to which the patient is admitted retains ultimate responsibility for coordination and provision of patient care." (10 NYCRR § 763.12.) Plaintiff further notes that the contract between ACSS and Americare specifically provides that ACSS remains responsible for developing a plan of care, ensuring compliance with Federal and State laws, and ensuring the quality of all services provided by the aides. In addition, the testimony of an ACSS nurse and two Americare aides reveal that ACSS nurses would conduct regular supervision to ensure that the required care was being provided, and order changes as needed. According to plaintiff, given the control ACSS exercised over Americare's aides, (Chichester, 150 A.D.3d 1073; Langer, 83 A.D.3d 1007), ACSS must be held vicariously liable.
As noted by ACSS, and contrary to plaintiff's portrayal, the language contained in the aforementioned Federal and State statutes do not impose some form of strict or absolute liability standard upon health care agencies. Instead, they set forth general standards of what is considered best practices in order to ensure that patients receive adequate care. Traditionally, statutory language that is general in nature does not rise to the level of absolute liability, whereas, the use of more specific commands may impose such liability. (Ross v Curtis-Palmer, 81 N.Y.2d 494 [1993].) For comparison purposes, the language contained in New York Labor Law § 240 specifically provides that all contractors and owners in the erection, demolition or repair of a building shall (emphasis added) furnish or erect scaffolding, hoists, ladders and other safety devices (emphasis added) in order to give proper protection to employees. (Ross, 81 N.Y.2d 494.) And it is well settled that Labor Law § 240 imposes absolute liability upon contractors and owners who breach the duty imposed by same. (Bland v Manocherian, 66 N.Y.2d 452 [1985]; D'Amico v Manufacturers, 177 A.D.2d 441 [1st Dept 1991].) In addition, whereas plaintiff cites no case law that specifically supports an absolute or strict liability interpretation of the Federal and State statutes in question, there is a litany of case law interpreting and confirming the absolute liability standard imposed upon contractors and owners by Labor Law § 240. (Ross, 81 N.Y.2d 494; Bland, 66 N.Y.2d 452; D'Amico, 177 A.D.2d 441.) Negligence actions involving hospitals, nursing homes and home health aides continue to be analyzed in accordance with classical theories of actual and/or apparent agency (Hill v St. Clare's, 67 N.Y.2d 72 [1986]).
According to ACSS, although they did engage in care planning and had some supervisory responsibility over the Americare aides, they were not present, nor required to be present, on a daily basis to monitor the aides, or to immediately ensure compliance with every order or task. ACSS nurses visit patients at the start of care, every sixty (60) days for recertification, and in-between as needed; however, day-to-day care was left in the hands of the family and the individual aides. The home health aides provided daily care and acted under the control and direction of the family or assigned care-giver, which in this case was decedent's granddaughter, Nicole Thomas, a non-party. And consistent with the contract between ACSS and Americare, and the Federal and State regulations in question, the home health aides were also supervised by their own employer, Americare. These facts call into question the degree of control ACSS had over the Americare aides, and whether this warrants a finding of common law agency in fact.
Plaintiff refers to Chichester, (150 A.D.3d 1073), and Langer, (83 A.D.3d 1007), as supportive of her assertion that ACSS exercised sufficient control over Americare's aides to hold it vicariously liable. In Chichester, defendant, Revival Home Health Care, Inc. (Revival), contracted with defendant, Edison Home Health Care, LLC (Edison), to provide plaintiff's mother with home health aides. (150 A.D.3d 1073 .) Plaintiff's mother was sexually assaulted by one of Edison's home health aides. Although the home health aides were employees of Edison, the Second Department denied Revival's motion for summary judgment (CPLR 3212) finding that there were triable issues of fact as to whether Revival exercised control over the home health aides employed by Edison. For example, it noted that the contract between Revival and Edison provided that, notwithstanding the status of the aides as Edison's employees, during the hours that the aides were assigned to work with the patient, the aides would be working under the direction and supervision of Revival, and Revival would determine the scope of the aides' activities and provide them with on-site instruction and orientation. The contract also provided that Revival had the authority to terminate or change the assignment of any aide, and Edison would regularly update Revival on the aides' complete personnel records.
In Langer, defendant, Personal Touch Home Care, Inc. (Personal Touch), retained defendant, Primary Home Care, Inc. (Primary), to provide home health aides to care for plaintiff. (83 A.D.3d 1007.) The complaint alleged that plaintiff fell on her front porch while under the care of the home health aide. In denying the motion for summary judgment (CPLR 3212) by Personal Touch, the Second Department in Langer held that triable issues of fact existed as to whether Personal Touch exercised control over the method and means by which Primary's home health aide did her work. The Second Department noted that nurses employed by Personal Touch prepared a plan of care for plaintiff, were responsible for any special instructions concerning care, and visited plaintiff's home at least once a week to supervise the home health aide and ensure that the aide followed the plan of care. Contrary to plaintiff's suggestion, these cases demonstrate that negligence actions involving home health care agencies and aides continue to be analyzed in accordance with classical theories of actual and/or apparent agency. (Hill, 67 N.Y.2d 72.) ACSS and Americare are two separate and distinct entities, (Broxmeyer v United, 79 A.D.3d 780 [2nd Dept 2010]), and measuring the amount of control ACSS had over Americare's aides is a factual issue more appropriately left for the trier of fact to resolve.
Therefore, viewing the evidence in a light most favorable to ACSS, (O'Sullivan v Presbyterian, 217 A.D.2d 98 [1st Dept 1995]), the Court is satisfied that plaintiff has not met her prima facie burden (Alvarez, 68 N.Y.2d 320), and her summary judgment motion is denied. ACSS is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 20 days of receipt of copy of same. This constitutes the decision and order of this court.