Opinion
Index No. 2019-2750
02-21-2023
Charlotte Perrone, as Administratrix of The Estate of EDWARD PERRONE, Deceased, Plaintiff, v. Ellis Hospital, Defendant.
For Plaintiff: Damien Smith, Esq. For Defendant: Erin P. Mead, Esq.
Unpublished Opinion
For Plaintiff: Damien Smith, Esq.
For Defendant: Erin P. Mead, Esq.
THOMAS D. BUCHANAN, J.
Defendant has moved for summary judgment dismissing the Complaint in this action on the grounds that (1) Plaintiff's negligent hiring and supervision claim cannot be maintained because Plaintiff seeks to hold Defendant vicariously liable for the acts of its agents and employees, (2) there was no deviation from the accepted standard of care, (3) the deviations alleged by Plaintiff were not the proximate cause of Mr. Perrone's death, and (4) given the lack of deviation and proximate cause, Plaintiff's claim for wrongful death must fail. Plaintiff has opposed the motion.
The basic standard to be applied by a court addressing a summary judgment motion is well established. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party or parties to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 A.D.3d 1146 [3d Dept 2006]).
At the outset, Defendant makes two legal arguments, one aimed at dismissing a claim that has been asserted in the Complaint and the other aimed at precluding a claim that has not been articulated. Defendant notes that Plaintiff is asserting a claim for negligent hiring, while also claiming vicarious liability for the acts of Defendant's employees. A claim for negligent hiring cannot be maintained where the plaintiff also asserts respondeat superior (Talavera v. Arbit, 18 A.D.3d 738 [2d Dept 2005]). Defendant also notes that Plaintiff does not assert a separately stated cause of action for lack of informed consent, precluding any argument on that subject which may be offered by Plaintiff (Parese v. Shankman, 300 A.D.2d 1087 [4th Dept 2002]).
As to Defendant's evidentiary arguments, in the context of a medical malpractice case, the burden on a defense motion for summary judgment is met by submitting factual proof consisting of affidavits (including expert affidavits), deposition testimony and medical records that rebut the plaintiff's claim of malpractice (see e.g. Fuller v. Aberdale, 130 A.D.3d 1277 [3d Dept 2015]). In this case, Defendant submits an affirmation from counsel to which are appended copies of the pleadings, bill of particulars, deposition transcripts and relevant medical records. Defendant also submits an expert affidavit and a memorandum of law. Defendant asserts both the lack of deviation from accepted standards of care and the lack of proximate cause.
Defendant's expert affidavit is 19 pages long and goes into significant factual detail as to the care given to Mr. Perrone. Defendant's expert then opines that the pressure ulcer suffered by Plaintiff's decedent was unavoidable because he was properly evaluated and proper protocols were implemented and followed to the greatest extent possible, given his condition. The expert further opines that the bouts of pneumonia suffered by Mr. Perrone were not the consequence of the care he received, which complied with applicable standards, but were instead unavoidable given his poor medical condition. He further opines that Defendant complied with the applicable standard of care regarding Mr. Perrone's nutritional needs and that his malnutrition was the unavoidable consequence of his pre-existing medical conditions. He also notes that Defendant did not violate New York's Minimum Hospital Standards found at 10 NYCRR §405 as claimed by Plaintiff. Finally, Defendant's expert asserts that the source of the sepsis that caused death cannot be determined with medical certainty, given the lack of an autopsy and the presence of two causes of death cited in the medical records by the same physician.
In opposition, Plaintiff focuses on the pressure ulcer suffered by Mr. Perrone, pointing to the Death Certificate that lists the cause of death as respiratory failure as a consequence of sepsis, which was a consequence of the pressure ulcer. Plaintiff offers an affirmation from counsel and an expert's affidavit. As was the case with Defendant's expert, Plaintiff's goes into significant factual detail in this 15-page affidavit. He then opines that Defendant's method of recordkeeping was a departure from the medical standard of care, as it fails to provide sufficient detail to ensure compliance with the pressure ulcer care plan and physicians' orders. The expert notes that there is no evidence in Defendant's record that Mr. Perrone was provided with proper wound care as ordered by a doctor on eleven separate days and no evidence that any wound care at all was given on ten separate days. The expert also notes that there is no evidence that the Gaymar air mattress was properly inflated. Plaintiff's expert opines that the pressure ulcer suffered by Mr. Perrone was not unavoidable but was instead the result of improper care - in particular, the failure to reposition Mr. Perrone according to the medical standard of care and the failure to provide wound care in conformity with the medical standard of care. The expert further opines that these failures were substantial contributing factors in Mr. Perrone's death.
In reply, Defense counsel makes extensive reference to the medical records and asserts that the affirmation from Plaintiff's expert actually conflicts with those records, making it insufficient to defeat Defendant's motion under authority such as Fleming v. Pedinol Pharmacal, Inc. (70 A.D.3d 422 [1st Dept 2010]). Counsel also asserts that Plaintiff's expert ignores the medical evidence; for example, the limitations on repositioning brought about by Mr. Perrone's ventilator and feeding tube, and evidence showing that development of a pressure ulcer was unavoidable. Counsel is correct that some items cited by Plaintiff's expert (such as the date of the first report of the pressure ulcer) are not consistent with the medical records. However, both the ventilator and feeding tube are discussed in the expert's factual statement and the Court's reading of the affirmation, in a light most favorable to Plaintiff, indicates that he does not ignore evidence that the ulcer was unavoidable, but instead disagrees with that conclusion. Defendant does not address the assertion by Plaintiff's expert that Defendant's method of recordkeeping was itself a departure from accepted medical practice, in that separate entries were not made for each time Mr. Perrone was repositioned, allowing staff to be certain that it had indeed occurred every two hours. This is consistent with the description of recordkeeping given in deposition by Defendant's nurse, who states that nurses would not update the chart each time Mr. Perrone was moved.
On the question of proximate cause, Defendant asserts that the lack of an autopsy and the two conflicting causes of death found in the medical records means that Plaintiff's expert affidavit is speculative and fails to establish causation. On this motion, however, it is not Plaintiff's burden to establish causation. Plaintiff must establish a question of fact as to causation. The overall burden for a plaintiff in a medical malpractice case is to prove that there was an act or omission that deviated from the applicable standard of care and was a substantial factor in bringing about the plaintiff's injury; i.e., "had such an effect in producing the injury that reasonable people would regard it as a cause of the injury" (Wild v. Catholic Health System, 21 N.Y.3d 951, 955 [2013] [citing PJI 2:70]). The cause of death listed on the Death Certificate, by itself, precludes characterizing this expert affidavit as speculative under this standard.
On the record developed here, Defendant carried its initial burden of proof that the Complaint should be dismissed. In response, Plaintiff appears to have abandoned some of her claims, as the only evidence and argument offered concern Defendant's alleged departures in failing to reposition Mr. Perrone and care for his pressure ulcer once it developed. On these points, the parties' experts disagree.
A court deciding a summary judgment motion should not make credibility determinations when competing expert opinions are offered unless one opinion is either conclusory (Rockefeller v. Albany Welding Supply, Inc., 3 A.D.3d 753 [3d Dept 2004]), speculative (Palmer v. Barnes & Noble Booksellers, Inc., 34 A.D.3d 1287 [4th Dept 2006]) or so lacking in factual or scientific foundation as to be utterly devoid of merit (Elsawi v. Saratoga Springs City School Dist., 141 A.D.3d 921 [3d Dept 2016]). The expert affidavits here do not suffer from any of these infirmities. Their differences of opinion set up questions of credibility and of fact that are not appropriately resolved on a summary judgment motion (see e.g. Dillenbeck v. Shovelton, 114 A.D.3d 1125 [3d Dept 2014]; Dandrea v. Hertz, 23 A.D.3d 332 [2d Dept 2005]; Rosenbaum v. Camps Rov Tov, 285 A.D.2d 894 [3d Dept 2001]).
The parties' remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of the foregoing, it is hereby
ORDERED, that the motion by Defendant seeking summary judgment dismissing the Complaint in this action is granted in part, in that
-the Third Cause of Action is hereby dismissed;
-the First Cause of Action, the Second Cause of Action and the Fourth Cause of Action, insofar as each cause of action is based on aspiration and aspirational pneumonia suffered by Plaintiff's decedent, are dismissed;and it is further
ORDERED, that the motion by Defendant is denied in all other respects.