Opinion
No. 15593/07.
2011-03-25
Ruth HOLDER, as Administratrix of the Estate of Cyril Holder, Deceased, Plaintiff, v. MENORAH HOME AND HOSPITAL FOR the AGED AND INFIRM and Gary Kleinberg, Defendants.
( Rey v. Park View Nursing Home, 262 A.D.2d 624, 627 [1999]; accord Kraycar v. Monahan, 49 AD3d 507, 508 [2008]; Hill v.2016 Realty Assoc., 42 AD3d 432, 433 [2007]; Morton v. Brookhaven Mem. Hosp., 32 AD3d 381 [2006]; Osborne v. Rivington House–Nicholas A. Rango Health Care Facility, 19 Misc.3d 1132[A], 2008 N.Y. Slip Op 50975[U], at 6 [Sup Ct New York County 2008] ). This standard applies regardless of whether plaintiff's common-law causes of action are deemed to sound in medical malpractice or negligence ( see Dmytryszn v. Herschman, 78 AD3d 1108, 1109 [2010][medical malpractice action]; Fernandez v. Suffolk County Water Auth., 276 A.D.2d 466, 467 [2000] [negligence action]; see also Stukas v. Steiter, 83 AD3d 18, 2011 N.Y. Slip Op 01832 at 3 [2011][medical malpractice is but a species of negligence] ).
LAURA LEE JACOBSON, J.
Upon the foregoing papers, defendants Menorah Home and Hospital for the Aged and Infirm (Menorah) and Gary Kleinberg move for an order pursuant to CPLR 3212 granting them summary judgment dismissing all claims for punitive damages asserted pursuant to the common law and pursuant to Public Health Law § 2801–d (2).
The motion is granted and punitive damage claims asserted pursuant to the common-law and Public Health Law § 2801–d(2) are dismissed.
Plaintiff Ruth Holder, as Administratrix of the Estate of Cyril Holder (Holder), deceased, alleges that Cyril Holder, while a nursing home resident at Menorah, suffered personal injuries ultimately resulting in his death as the result of acts of negligence, gross negligence and violations of Holder's rights as a nursing home resident under Public Health Law §§ 2801–d and 2803–c. After he had been discharged from New York Methodist Hospital (Methodist), where he had been treated for a urinary tract infection and sepsis, Holder was admitted to Menorah on April 16, 2004,
with a history of Parkinson's disease, dementia,
Holder was 82 at the time of his admission, and his date of birth was July 29, 1921.
arteriosclerotic heart disease (ASHD), transient ischemic attack and/or stroke, and hypertension. At the time of his admission, Holder was partially hand fed, incontinent, wheelchair dependent (although able to wheel himself), and required assistance for transfers to and from his bed and wheelchair. Given his impaired mental state, balance issues and limited mobility, his falls care plan included the placement of a mat on the floor at his bedside, setting the bed at its lowest position, and placing call bell within reach. Menorah also assessed Holder as a high risk for the development of pressure ulcers, and required the nursing staff to assess his skin at every shift, position him, and required them to provide pressure relieving devices such as a blue chip mattress, heel pads, and a gel wedge cushion for his wheelchair.
The diagnosis of Alzheimer's disease is also checked off on some of the doctor's progress notes relating to Holder.
From late April through early June 2004, Holder was in and out of Methodist because he was found to have pneumonia, a urinary tract infection and had hydration and eating/nutrition issues which required the placement of a PEG tube. Prior to Holder's first readmission to Methodist, a physician noted, on April 20, 2004, that Holder had a left heel blister. This left heel blister was again noted upon Holder's return from Methodist on May 6, 2004, and healing scabs on both heels were noted upon his return from Methodist on June 2, 2004. Both of Holder's heels apparently fully healed shortly thereafter, as his skin assessments contained in the doctor's progress notes were negative for pressure ulcer related skin issues through July 5, 2005.
Although not frequent, Holder had falls while he was at Menorah. The first occurred on May 8, 2004, when the staff found Holder lying on the floor mat beside his bed. Upon being found, Holder advised the staff the he was “going home.” Holder did not suffer an injury as the result of this fall.
The second fall occurred on August 21, 2004, when the staff found Holder kneeling on the floor mat next to his bed. Holder told the staff that he was on the floor to pray. Holder again had no visible injury, no complaints of pain and no limitations as the result of this fall. As a result of this fall, Menorah added a bed alarm to his falls care plan.
A third fall occurred on February 10, 2005. On that date the staff found Holder sitting in front of his wheelchair on the dining room floor. At that time Holder told the staff that he was trying to get up from his wheelchair, and had slipped. Upon examination, the nurse found that he was able to move all his extremities, and that there was no visible injury. Holder, however, later complained of pain in his right shoulder, and the doctor who examined him transferred him that day to Methodist to rule out a dislocation or a fracture. Methodist diagnosed Holder has having a dislocated shoulder, and returned him to Menorah with a sling for his shoulder. In response to this fall, Menorah added a wheelchair alarm to his falls care plan.
On July 6, 2005, Holder had his fourth fall. At approximately 12:30 A.M. on that date the staff found him on the floor of his room, and he reported that he had fallen while trying to go to the bathroom. At that time, Holder made no complaints of pain and there was no visible injury. Later that morning, however, a doctor noted that Holder's right shoulder was swollen and tender to touch and that his hips were tender. The doctor ordered X-rays, which showed fractures of the humeral head, distal clavicle and left femoral neck. Menorah thereafter transferred Holder to Beth Israel Medical Center–Kings Highway Division (Beth Israel), whose staff performed a closed reduction of the arm fracture and closed reduction with percutaneous pinning of the left hip.
On his return from Beth Israel on July 11, 2005, Menorah's staff noted a “boggy” Stage II closed left heel blister that measured 4 cm by 3 cm. Menorah addressed the blister by placement of a heel pad and elevating Holder's lower extremities. On July 19, 2005, the blister was noted to be dark in color and the same size as on July 11, 2005. An Allevyn dressing was ordered for every three days, and a plastic surgeon consultation was requested. By July 26, 2005 the blister had increased in size, and, upon debridement with Solusite gel, necrotic tissue down to the bone was found, indicating that the ulcer was at stage IV. A plastic surgeon examined Holder on July 28, 2005. Thereafter the Ulcer was addressed by dressings, a boot to protect Holder's foot, vitamins, and an alternating treatment regimen of Solusite and Granulex was instituted. The plastic surgeon evaluated the ulcer again on August 25, 2005, and, on August 30, 2005, it was decided that the plastic surgeon would evaluate the ulcer weekly. The ulcer, however, continued to grow, and as of September 27, 2005, Augmentin therapy was started to aid necrotic draining. From September 2005 to January 2006, the heel ulcer's size went up and down, but it did not heal. A December 22, 2005, note indicates that an old scar reopened on the left ischium and sacral area.
This scar is noted as having healed by December 27, 2005. On January 30, 2006, Menorah transferred Holder to Methodist because the heel ulcer would not heal for three months and concerns relating to possible osteomyelitis.
This would appear to be in the area of incision for the hip surgery performed at Beth Israel.
At Methodist, the attending physician and a vascular surgeon determined that the heel ulcer was caused by Holder's peripheral vascular disease, in that plaintiff had no pulses in his left foot, and the angiogram findings that Holder had 80 percent stenosis of his Superficial Femoral Artery. Although angioplasty and stent replacement were performed on February 10, 2006, it was determined that, given Holder's non-ambulatory status and the failure of the wound to heal, amputation was the best treatment option for plaintiff's ulcer. Prior to this surgery, the sacrel ulcer, documented in Menorah on December 27, 2005, reopened. In addition, Holder had developed food intake problems, and on March 1, 2006, a PEG tube was again placed to address his nutrition issues. The amputation surgery was performed on March 2, 2006.
Holder returned to Menorah on March 17, 2006, and, upon admission, he was noted to have a stage III sacrel ulcer, a stage II left buttocks ulcer and a right heel blood blister. In addition to Solusite dressing for the sacral ulcer, and zinc oxide for the buttocks ulcer, Menorah's treatment plan including turning and repositioning Holder every two hours. The subsequent nursing notes provide some documentation that this repositioning order was carried out.
Holder's condition continued to deteriorate, and he was thereafter in and out of hospitals to address various infections. During the intervals he was at Menorah, additional treatments for the ulcers were ordered and the two hour repositioning plan was continued. On April 21, 2006, Menorah transferred Holder to Methodist after a chest X-ray revealed a right upper lung infiltrate. Methodist admitted Holder for sepsis and fever on that day, and on April 22, 2006, he was found without vital signs and pronounced dead.
Plaintiff, after being appointed administratrix of Holder's estate, commenced this action against defendants alleging causes of action premised on negligence, gross negligence and violations of Holder's rights as a nursing home resident under Public Health Law §§ 2801–d and 2803–c. In addition to requesting compensatory damages with respect to those causes of action, plaintiff has requested punitive damages pursuant to the common law and Public Health Law § 2801–d(2). In moving for partial summary judgment, defendants have limited their request for relief to dismissal of plaintiff's demands for punitive damages.
In the context of a common-law tort action, courts have held that:
Punitive damages are warranted where the conduct of the party being held liable evidences a high degree of moral culpability (Giblin v. Murphy, 73 N.Y.2d 769, 772) or where the conduct is so flagrant as to transcend mere carelessness (Frenya v. Champlain Val. Physicians' Hosp. Med. Ctr., 133 A.D.2d 1000, 1001), or where the conduct constitutes willful or wanton negligence or recklessness (Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 204). It is not necessary that the conduct complained of be intentionally harmful ( see, Home Ins. Co. v. American Home Prods. Corp., supra; Gruber v. Craig, 208 A.D.2d 900, 901).
(Rey v. Park View Nursing Home, 262 A.D.2d 624, 627 [1999];accord Kraycar v. Monahan, 49 AD3d 507, 508 [2008];Hill v.2016 Realty Assoc., 42 AD3d 432, 433 [2007];Morton v. Brookhaven Mem. Hosp., 32 AD3d 381 [2006];Osborne v. Rivington House–Nicholas A. Rango Health Care Facility, 19 Misc.3d 1132[A], 2008 N.Y. Slip Op 50975[U], at 6 [Sup Ct New York County 2008] ). This standard applies regardless of whether plaintiff's common-law causes of action are deemed to sound in medical malpractice or negligence ( see Dmytryszn v. Herschman, 78 AD3d 1108, 1109 [2010][medical malpractice action]; Fernandez v. Suffolk County Water Auth., 276 A.D.2d 466, 467 [2000] [negligence action]; see also Stukas v. Steiter, 83 AD3d 18, 2011 N.Y. Slip Op 01832 at 3 [2011][medical malpractice is but a species of negligence] ).
Whether the legislature intended that the common-law punitive damage standard apply to an action under Public Health Law § 2801–d(2) is not entirely clear ( see Osborne, 2008 N.Y. Slip Op 50975, at 6 [section 2801–d(2) appears to impose a less stringent standard than that under common-law] ). Public Health Law § 2801–d(1)
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 ( Zeides v. Hebrew Home for Aged at Riverdale, 300 A.D.2d 178, 179 [2002] ). A patient may obtain compensatory damages upon a finding that he or she has been injured as the result or a deprivation of a specified right unless there is a finding that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient ( Public Health Law § 2801–d[2] ). Punitive damages may be assessed “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” ( Public Health Law § 2801–d[2] ). In addressing the similar reckless disregard standard imposed under Vehicle and Traffic Law § 1104(e), which protects drivers of emergency vehicles, the Court of Appeals has stated:
.Public Health Law § 2801–d(1) provides that:
“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. No person who pleads and proves, as an affirmative defense, that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted shall be liable under this section. For the purposes of this section, injury' shall include, but not be limited to, physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient.”
This standard demands more than a showing of a lack of “due care under the circumstances,”—the showing typically associated with ordinary negligence claims. It requires evidence that “the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” and has done so with conscious indifference to the outcome (Saarinen v. Kerr, 84 N.Y.2d 494, 501 [1994] [quoting Prossor and Keeton, Torts § 34, at 213 (5th ed.) ] ).
In view of this language, the reckless disregard standard under Public Health Law § 2901–d(2) certainly requires a plaintiff to clear a high bar before punitive damages may be assessed. Whether there is any real difference between the reckless disregard standard under Public Health Law § 2801–d(2) and the common-law punitive damages standard need not be decided, however, given this court's conclusion that plaintiff is not entitled to such damages under any standard.
Here, plaintiff has primarily alleged failures in patient care relating to fall protection and pressure sores or ulcers. Both state and federal regulations provide that residential facilities must insure that a patient who is admitted without bedsores does not develop them unless they were unavoidable given the patient's condition and the facility made every reasonable effort to prevent them. These regulations further require that if such sores do develop, that they be properly treated to promote healing, prevent infection and prevent further sores from developing ( see10 NYCRR 415.12[c]; 42 CFR § 483.25[c] ). With respect to falls, both state and federal regulations require that the resident environment remain free of accident hazards and that each resident receive adequate supervision and assistance devices to prevent accidents (10 NYCRR 415.12[h]; 42 CFR § 483.25[h] ). These regulations, however, also emphasize that a resident has a right to be free from physical or chemical restraints imposed for convenience and not required by the resident's medical symptoms (10 NYCRR 415.4[a][2]; 42 CFR § 483.13[a] ).
In support of their position that punitive damages are unwarranted, defendants have submitted an affirmation from Sharon A. Brangman, M.D., a physician board certified in geriatric medicine and internal medicine, and a medical director at a senior living facility and an attending physician at James Square Health and Rehabilitation Centre. With respect to falls, Dr. Brangman initially emphasizes that it is simply not possible for a nursing home to prevent all falls. Dr. Brangman opines that Menorah's initial fall precautions, which included providing a call bell in reach, providing assistance with transfers and ambulation, keeping his bed in the lowest position and placing a mat at his bedside, were appropriate. Dr. Brangman further opines that it was reasonable to only add the bed alarm after Holder's August 22, 2004 fall and the wheelchair alarm after his February 10, 2005 fall. Given the limited number of times Holder attempted unassisted transfers and the limited number of falls, Dr. Brangman asserts that the precautions in place at the time of the July 6, 2006 were appropriate. In light of generally accepted nursing home practices and regulations restricting the use of restraints, Dr. Brangman states that it would have been inappropriate for Menorah to have used restraints on Holder to prevent falls.
Turning to Menorah's care relating to pressure ulcers, Dr. Brangman asserts that the initial heel ulcer, noted in spring 2004, developed while Holder was at Methodist. However, a doctor notes a heel blister in the April 20, 2004 progress notes, four days after Holder's initial admission to Menorah and prior to his return to Methodist, suggesting that this blister developed while Holder was at Menorah. Nevertheless, consistent with Dr. Brangman further assertions, other notations show that precautions thereafter taken, such as the use of heel pads,
and that the blister healed relatively quickly. Dr. Brangman notes that Holder's records show that he did not have any further issues with respect to skin integrity until his return from Beth Israel on July 11, 2005, when a blister was noted on Holder's left heel.
Noted in post admission nursing notes dated May 8, 2004 and June 4, 2004.
Holder's records, according to Dr. Brangman, show that Menorah took reasonable steps in an attempt to heal and/or prevent the worsening of this ulcer first noted on July 11, 2005. Dr. Brangman asserts that the worsening of the ulcer was not caused by any deficiency in Menorah's treatment, but rather, was caused by Holder's “multiple co-morbidities”, including Alzheimer's disease, Parkinson's disease, osteoporosis, hypertension, diabetes, coronary artery disease, chronic anemia, a prior stroke, peripheral vascular disease and small and large vessel vascular disease as well as his poor intake that required the PEG tube. In addition, Dr. Brangman notes that Holder's condition was rapidly deteriorating, and that every organ system was failing. In the face of these conditions, in particular the vascular problems that prevented blood from reaching Holder's foot, Dr. Brangman concludes that Holder's ulcer would not have healed with even the best treatment, and that amputation would still have been required. Finally, Dr. Brangman notes that Menorah properly addressed the ulcers Holder had at the time of his return from Methodist in March 2006 by treating them and initiating a plan to turn and reposition Holder every two hours. Nevertheless, Dr. Brangman asserts that Holder's co-morbidities rendered him too compromised to heal.
Through Dr. Brangman's affirmation and Holder's medical records, defendants have demonstrated, prima facie, that Menorah did not act willfully or in reckless disregard of Holder's rights as a patient for purposes of Public Health Law § 2108–d(2) ( see Maltese–Kojallo v. Fairview Nursing Care Ctr., Inc., 2010 N.Y. Slip Op 30144[U][Sup Ct Queens County 2010]; cf. Vaynberg v. Saint Vincents Catholic Med. Ctrs. of NY, 2009 N.Y. Slip Op 32371[U][Sup Ct, Kings County 2009][court found that defendants failed their initial summary judgment burden in part because they failed to submit an expert affidavit addressing the appropriateness of the nursing home care] ) and that Holder's injuries were not the result of willful or wanton negligence under the common-law standard ( see Maltese–Kojallo, 2010 N.Y. Slip Op 30144). In light of this prima facie showing, the burden has shifted to plaintiff to demonstrate the existence of a factual issue warranting denial of the motion ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986];Stukas, 2011 N.Y. Slip Op 01832, at 3–4).
In opposition, plaintiff has submitted a purported affirmation from Richard M. Dupee, M.D., a physician licensed to practice in the Commonwealth of Massachusetts, with experience as an internist and geriatrician and as a nursing home medical director. This affirmation has no probative value, however, as Dr. Dupee is not authorized to practice medicine in New York ( see Worthy v. Good Samaritan Hosp. Med. Ctr., 50 AD3d 1023, 1024 [2008];Ramos v. Dekhtyar, 301 A.D.2d 428, 429 [2003];CPLR 2106). After defendants objected to the form of Dr. Dupee's affirmation, plaintiff attempted to correct this deficiency following the intended submission date of the motion by providing Dr. Dupee's statements in affidavit form. Aside from untimeliness of this purported affidavit, it is defective in that, although there is a notary signature and stamp, there is no jurat containing any oath or swearing language, let alone any language indicating that the affidavit was signed before the notary ( cf. Sparaco v. Sparaco, 309 A.D.2d 1029, 1030 [2003] [court properly accepted affidavit where jurat stated that “[t]he foregoing instrument was acknowledged before me”], lv denied2 NY3d 702 [2004] ). In addition, plaintiff has failed to supply the certificates required for out of state affidavits (CPLR 2309[c] ). Even if these defects could be ignored ( see Sparaco, 309 AD3d at 1030–1031; Nandy v. Albany Med. Ctr. Hosp., 155 A.D.2d 833, 834 [1989] ), Dr.Dupee's assertions fail to demonstrate the existence of a factual issue warranting denial of the motion.
In this regard, Dr. Dupee asserts, with respect to Menorah's fall care, that it is not clear that Holder's fall risks were properly communicated to Menorah's staff, that the bed was adjusted to a lower setting, that a handgrip or transfer pole was in place or that the bed alarm actually sounded when Holder left his bed. Dr. Dupee also suggests that the mattress should have had a raised edge and that there should have been pillows at the side of the bed to warn Holder of the bed edges.
At most, however, these assertions show that other approaches may have been used to address falls or that the staff failed to check the functioning of the alarm, derelictions falling well short of a reckless disregard of Holder's rights or willful or wanton negligence.
Given Holder's statements at the time of each of his falls, it appears that he intended to get out of bed on each occasion. As such, it does not appear that a clearer demarcation of the edge of the bed would have made any difference.
Although Dr. Dupee also asserts that defendants failed to provide adequate care to prevent pressure ulcers and to properly treat the ulcers once they developed, Menorah's records show that Menorah did not wholly ignore the issue of pressure ulcers. In addition, Dr. Dupee has not addressed Dr. Brangman's contention that plaintiff's co-morbidities would have prevented the healing of the ulcers no matter the quality of care ( see Chance v. Felder, 33 AD3d 645, 646 [2006];Ventura v. Beth Israel Med. Ctr., 297 A.D.2d 801, 803 [2002],lv denied99 N.Y.2d 510 [2003] ). As with his assertions with respect to Holder's falls, Dr. Dupee's opinion with respect to pressure ulcers, and his additional assertions regarding the care plan, hydration, aspiration pneumonia, and other alleged failures, at most, show that Menorah could have provided better care, and possibly show the existence of factual issues as to whether Menorah was negligent or violated Holder's rights under Public Health Law § 2801–d. Dr. Dupee's assertions, however, fail to show factual issues relating to whether Menorah recklessly disregarded Holder's rights under Public Health Law § 2801–d(2) or was willfully or wantonly negligent under the common law ( see Maltese–Kojallo, 2010 N.Y. Slip Op 30144). Accordingly, defendants' motion must be granted.
This constitutes the decision, order and judgment of the court.