Opinion
505893/2016
02-23-2021
Lois M. ROSENBLATT, Esq., as Public Administrator of Queens County, as Administratrix of the Estate of Hercules Smith, Deceased, Plaintiff, v. CENTER FOR NURSING & REHABILITATION, INC., Defendant.
Plaintiff: Cody K. Mccone Firm Name: O'DWYER & BERNSTEIN, LLP Address: 45 Broadway Ste 2430, New York, NY 10006 Phone: (212) 571-7100 Service E-mail: cmccone@odblaw.com Defendant: Andrew Thomas Sheeley Firm Name: Sheeley LLP Address: 100 Wall Street, 19th Fl., New York, NY 10005 Phone: 646 650 5952 Service E-mail: sheeley@sheeleyllp.com
Plaintiff: Cody K. Mccone Firm Name: O'DWYER & BERNSTEIN, LLP Address: 45 Broadway Ste 2430, New York, NY 10006 Phone: (212) 571-7100 Service E-mail: cmccone@odblaw.com
Defendant: Andrew Thomas Sheeley Firm Name: Sheeley LLP Address: 100 Wall Street, 19th Fl., New York, NY 10005 Phone: 646 650 5952 Service E-mail: sheeley@sheeleyllp.com
Debra Silber, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of defendant's motion to set aside the jury's verdict.
Papers/NYSCEF Doc.
Notice of Motion, Affirmations, Affidavits and Exhibits Annexed 37 - 43
Affirmation in Opposition, Affidavits and Exhibits Annexed 48 - 51
Reply Affirmation 52
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
Defendant moves, pursuant to CPLR 4404 (a), for an order setting aside the jury's verdict and directing judgment in their favor, in this New York Public Health Law action. Alternatively, defendant seeks an order setting aside the verdict and directing a new trial, or a new trial on just the issue of damages, unless plaintiff stipulates to a substantially reduced award.
Plaintiff's decedent passed away on August 1, 2014. Apparently there was a dispute over who should be the estate representative, and the Public Administrator was appointed by the Surrogate in Queens County on April 7, 2016, almost two years after the date of death. This action was commenced on April 14, 2016.
The first cause of action in the complaint is for alleged violations of Public Health Law §§ 2801-d and 2803-c. The second cause of action is for negligence and gross negligence. The court dismissed the second cause of action following defendant's motion in limine , before the trial started. There had been two discovery-related motions but no summary judgment motions prior to the trial. The negligence claims, the court held, were really medical malpractice claims, and the statute of limitations had run on those claims, citing Pacio v Franklin Hosp. , 63 AD3d 1130 [2d Dept 2009] ( see also Rabinovich v Maimonides Med Ctr 179 AD3d 88 [2d Dept 2019]). The court stated (Tr P 33) "It was exactly the same issue. They sued. They blew the statute. They claimed it was negligence. The Court in the Bronx dismissed the negligence claim. They appealed and the Second Department specifically listed the claims and said that they were all medical malpractice claims, not negligence claims, and affirmed the dismissal."
Counsel for both sides agreed that the statute of limitations had run, and thus no medical malpractice claims were asserted ( see E-File Doc 39 at 21).
The trial was conducted from September 4, 2019 to September 10, 2019. September 3, 2019 was devoted to motions in limine. The plaintiff alleged violations of Public Health Law § 2801-d, referencing the parts of 42 CFR § 483.25 (b) (1) [federal] and 10 NYCRR § 415.12 [NY], which concern a nursing home resident's right to skin integrity and the proper treatment of pressure ulcers. The jury found that defendant had deprived Mr. Smith, the decedent, of his rights under the statute and that the violations of his rights thereunder were a substantial factor in causing the decedent's injuries. The jury awarded plaintiff $3 million in compensatory damages. This motion followed. While the motion was timely pursuant to the court's grant of time to move post-trial, plaintiff obtained several extensions of time for the opposition papers, the filing of which was then prevented by the court's closing due to the Covid-19 Pandemic. When the court reopened, the opposition and reply were filed, and oral argument was held virtually. Decision was reserved.
The Trial
Mr. Hercules Smith was originally admitted to defendant's nursing home facility, the Center for Nursing & Rehabilitation ("CNR"), in January 2012. He had suffered a stroke and was rendered paralyzed on one side of his body. He was 72 years old at that time and he also suffered from high blood pressure, diabetes, and dementia. Mr. Smith did not have any bed sores (also known as pressure ulcers ) upon admission to CNR, but he was identified as being at high risk for them due to his comorbidities and incontinence of bowel and bladder (E-File Doc 39 at 326 [Trial Tr]; E-File Doc 40, 41 [Excerpted CNR Records]). His treatment plan included turning and re-positioning him every two hours to promote skin integrity.
The evidence was that on August 22, 2012, after he had been a resident at defendant's facility for eight months, Mr. Smith was transferred to nonparty New York Methodist Hospital (NY Methodist) to be evaluated, as he was vomiting and there was concern that he had a bowel obstruction and that he had become dehydrated. He remained in the hospital for one week, then returned to CNR on August 29, 2012, at which time he was noted to have a Stage 2 decubitus pressure ulcer (commonly referred to as a " bedsore") on his lower back, over his sacrum. His plan of care continued to include a turning and positioning schedule (Tr at 150-151, 335-336). The evidence indicated that the bedsore had healed about one month later, while he was residing at CNR.
Mr. Smith was hospitalized again on April 3, 2013, and was returned to CNR one week later, but was readmitted to the hospital only a day later, on April 11, 2013. When he returned to CNR later the same day, on April 11, 2013, his skin in the sacral area was noted to be intact, with no reddening or other signs of a pressure ulcer.
Mr. Smith remained at CNR for many months without interruption, and the testimony was that his dementia continued to worsen. In October 2013, Mr. Smith developed a pressure ulcer in the sacral area of his lower back while at CNR. CNR's treatment records were introduced into evidence (plaintiff's Ex. 5), and include "Weekly Pressure Ulcer, Stasis Ulcer, and Wound Flow Sheets" ("Flow Sheets"), which indicate that, on October 14, 2013, Mr. Smith had an "open skin sacral [area] wound measuring 2 centimeters by 2 centimeters (a stage 2 pressure ulcer ) (E-File Doc 41 at 6 [10/14/13 Flow Sheet]). The care recommended by the nurses included turning and positioning Mr. Smith every 2 to 3 hours, providing a pressure-relieving mattress, and the daily application of a dry dressing.
The Flow Sheets refer to a Stage 1 pressure ulcer as a "persistent area of skin redness (without a break in skin) that does not disappear when pressure is relieved." A Stage 2 ulcer is a "partial thickness loss of skin layers that presents clinically as an abrasion, blister, or shallow crater." A Stage 3 ulcer is a when a "full thickness of skin is lost, exposing the subcutaneous tissue — presents as a deep crater with or without undermining adjacent tissue." Finally, a Stage 4 is where "full thickness of skin and subcutaneous tissue is lost, exposing muscle or bone," with other symptoms possibly present ( see E-File Doc 41 at 6 [Flow Sheets]).
There was no testimony whether Mr. Smith was given a pressure-relieving mattress. These are usually electrically operated and involuntarily move the patient as areas inflate and deflate.
The Flow Sheets document that the decedent's stage 2 pressure ulcer measured 6 centimeters by 5 centimeters (approximately 2½" x 2") on November 1, 2013, and that the ulcer had progressed to Stage 3 by November 15, 2013. According to a Consultation Report dated November 25, 2013, Mr. Smith's children had a meeting with defendant's staff to discuss "goals of care" for Mr. Smith, given his "deteriorating condition," including (new) "advanced dementia," weight loss, and Stage 3 pressure ulcer (E-File Doc 41 at 19 [Consultation Report]). A feeding tube was recommended, which would have increased his protein consumption, which in turn would help to heal his skin. However, it is not clear if this was explained to them. The family was "leaning towards [a] feeding tube," though the report states that Mr. Smith's daughters were told that ultimately the decision [whether to use a feeding tube] would need to be made by Mr. Smith's wife, as she had his health care proxy, and was not present at the meeting ( id. ).
On November 22, 2013, the decedent's ulcer was still 6 centimeters by 5 centimeters, but "30% of the wound had yellow slough" ( id. at 8). Plaintiff alleged that CNR did not produce Flow Sheets for several weeks in the period between November 22, 2013 and January 15, 2014 ( see id. at 8-9). Mr. Smith was not at CNR for this entire period. A "Care Plan Activity Report" indicates that Mr. Smith's wife, Rose Smith, met with a nurse as well as dietary, social services, and therapeutic recreation staff members on December 5, 2013 to "discuss resident's current status" and weight loss (E-File Doc 41 at 3). Ms. Smith told them she did not want a feeding tube inserted at that time ( id. ).
Mr. Smith was transferred to NY Methodist on December 16, 2013. His intake records indicate that the pressure ulcer was then Stage 4, measured 8 by 9 centimeters, (approximately 3 x 3½ inches) and had become infected. Mr. Smith returned to CNR on December 24, 2013 with a Stage 4 ulcer. Mr. Smith is reported to have had "normal pain" in December 2013. On January 9, 2014, Ms. Smith had a "family meeting" with a nurse and other care plan staff (dietary, social services, therapeutic, recreation) to "address concerns about sacral ulcer" where Ms. Smith was "provided [information] about the reason the ulcer was developed" and the planned treatment, to include "out of bed regime." It states the plan of care was "reviewed and continues" ( id. at 3).
Dr. Capobianco testified that other medical records indicate that the ulcer measured 8 inches wide by 12 inches high by 1.5 inches deep as of December 18-19, 2013 (Tr at 164).
On January 15, 2014, Mr. Smith became comatose and was transferred from CNR to NY Methodist Hospital. The transfer document (E-File Doc 41 at 2) states he was transferred for treatment of his acute neurological condition and also for treatment of his Stage 4 sacral pressure ulcer ( id. ). Mr. Smith did not return to CNR. It was not stated at trial, but counsel in her affirmation claims he "lost his bed" at CNR due to the duration of his hospital stay. Decedent spent the next seven or so months at (nonparties) Kingsbrook Jewish Medical Center and Rutland Nursing Home before he passed away on August 1, 2014. Plaintiff introduced into evidence records from all four facilities.
Plaintiff's Expert
At trial, plaintiff presented the expert testimony of Dr. Luigi Capobianco. Dr. Capobianco testified that CNR's turning and positioning of Mr. Smith was inadequate, because there were "gaps in the [certified nursing assistants’] documentation" and the minimum data sets (MDS) did not demonstrate he was being turned and positioned as required (Tr at 150-152). Dr. Capobianco also testified that the "extent of the skin necrosis" in the pressure ulcer "is ... itself indicative of the patient not being turned and positioned" ( id. ). Dr. Capobianco testified that he reviewed CNR's records for Mr. Smith, which were entered into evidence at trial by stipulation, and that those records—specifically the CNA's reports (certified nursing assistant) and MDS —contained gaps that showed that that CNR failed to turn and position Mr. Smith as required ( Tr at 150-151, 178-179, 189) and that the failure to turn and position him regularly was a significant factor in causing the pressure ulcer to develop and to worsen. Dr. Capobianco testified that the pressure ulcer was avoidable, with a proper program of turning and positioning, despite Mr. Smith's comorbidities (Tr at 207).
These forms, referred to herein as MDS, are called "Minimum Data Set (MDS) version 3.0, Resident Assessment and Care Screening." They appear to be computer generated and are not signed by anyone. It was explained that they are used for billing purposes.
Dr. Capobianco further testified that CNR's records fail to demonstrate that it adequately addressed the issue of Mr. Smith's nutrition, in that they failed to apprise his wife that Mr. Smith required a feeding tube in order for his skin to properly heal, because only nursing and other non-physician staff (rather than "a medical professional") had these conversations with Ms. Smith and, in any event, those meetings occurred after Mr. Smith's pressure ulcer had significantly worsened (Tr at 179,181; but see id. at 389, 396-397, 1874-1875 [indicating that those meetings were attended by a nurse practitioner]). When his children came to the meeting, it does not seem anyone from CNR contacted Ms. Smith to discuss the issue until she appeared for the next meeting at CNR in December 2013. Additionally, Dr. Capobianco testified that the wound dressings used were improper, due to the incorrect "type of patches" that CNR used (Tr at 177).
Defendant's Expert
Defendant's expert, Dr. Michael Perskin, testified that the first pressure ulcer only "healed" to the extent that it was no longer visible. He said that pressure ulcers never fully heal, because the area remains predisposed to future ulcers (Tr at 336). He characterized the second pressure ulcer as an "unavoidable result" of Mr. Smith's comorbidities and he characterized CNR's care as timely, appropriate treatment of the condition. He further testified that the CNA's reports were totally accurate in indicating that Mr. Smith was turned and positioned in every single instance during his stay at CNR and characterized the MDS as "secondary documentation" (Tr at 353-354 [stating MDS is an "audit" that "summarizes some of the conditions and care ... so that the nursing home can get paid" by insurers]). Dr. Perskin opined that the records documented that appropriate care was provided by CNR and that the pressure ulcer was "unavoidable" given Mr. Smith's comorbidities (Tr at 356, 379-380).
Defendant notes, in its reply, that some MDS forms did not indicate a turning and positioning plan was in place, or was done, and concedes that there were at least some blank spaces in the CNA's reports, where the CNA on duty should have indicated that turning and positioning had been done as required ( see E-File Doc 52 at 4-5). Defendant's expert, Dr. Perskin, testified that he did not observe any gaps in the CNA or MDS "documentation related to turning, positioning" (Tr at 355-356).
Charge Conference, Verdict Sheet, and Verdict
Plaintiff's attorney submitted only a list of standard charges from the PJI (despite the fact that there was no charge for a Public Health Law violation in the PJI at the time) (Tr at 390). CNR submitted a proposed verdict sheet (E-File Doc 43) asking the jury to determine, essentially, whether Mr. Smith was deprived of a right or benefit created by law and whether such deprivation was a substantial factor in causing an injury. Additionally, CNR's proposed verdict sheet also provided a question for the jury to decide with regard to CNR's (statutory) affirmative defense, by answering whether CNR had "exercised all care reasonably necessary to prevent and limit the deprivation and injury pursuant to Public Health Law § 2801-d (1)." The court charged the jury with regard to CNR's affirmative defense, which is in the statute, but did not include CNR's proposed third question, word for word, in the verdict sheet that was crafted by the court and given to the jury at the close of trial ( see Tr 461-464, 467, 473).
Proposed Question 3 (defendant's) would have asked: "DID [CNR] EXERCISE ALL CARE REASONABLY NECESSARY TO PREVENT AND LIMIT THE DEPRIVATION AND INJURY? IF YOUR ANSWER TO QUESTION NO. 3 IS ‘YES’, STOP DELIBERATING AND REPORT YOUR VERDICT TO THE COURT" (E-File Doc 43).
The jury found that CNR had violated Mr. Smith's right to skin integrity, in violation of the Public Health Law, to be free from avoidable pressure sores and by failing to provide the necessary treatment and services for his avoidable pressure sore, and that that those violations were a substantial factor in causing the injury (E-File Doc 51). The jury awarded plaintiff Three Million ($3,000,000) Dollars for his damages. The court notes that there were ten months between the formation of the pressure ulcer in October 2013 and Mr. Smith's death in August 2014.
Defendant's Motion
Defendant first argues that the court should set aside the verdict and award defendant judgment in its favor, as plaintiff failed to establish a prima facie case at trial and therefore the Public Health Law violation cause of action should not have been submitted to the jury. Specifically, defendant contends that plaintiff's expert's testimony failed to satisfy plaintiff's burden of proving that there was a violation of an applicable statute, code, rule or regulation which is a violation of PHL § 2801-d, which was a substantial factor in causing Mr. Smith's injuries. Counsel argues (Page 10, aff of Ms. Solomon) "At no point during the course of the entire trial did plaintiff's counsel ask Dr. Capobianco whether the purported violations of the Public Health Law were a substantial factor in causing decedent's injury." With the recent addition of a PJI charge for this cause of action, discussed in more depth below, this is what is published as the first sentence in the Comment following the charge " Caveat : In the absence of any appellate case law specifically addressing the nature of the element of causation, the charge tracks the precise language of Public Health Law § 2801-d directing the jury to find whether plaintiff suffered injury "as a result of" the deprivation of a right or benefit. Some reported cases have assumed, without deciding, that causation is akin to proximate cause or substantial factor."
Defendant further argues that, in the alternative, a new trial is warranted as a result of the cumulative effect of improper rulings by the court, in conjunction with plaintiff's insufficient evidence. Defendant contends that the court erred in (1) declining to include an interrogatory asking the jury whether defendant met its burden of proof with regard to its affirmative defense, and (2) precluding CNR's director of nursing, Annette Ford, from testifying as to where certain photos not admitted into evidence or shown to the jury had been taken. Finally, defendant argues that the $3 million award is excessive for the pain and suffering associated with a single pressure ulcer over a period of 10 months and that the award must be substantially reduced.
Plaintiff responds that Dr. Capobianco's testimony as to the inadequacies in Mr. Smith's care was competent and, thus, the evidence supporting the Public Health Law claim was legally sufficient and properly submitted to the jury. Plaintiff further responds that defendant was not prejudiced by any of the testimony (or lack of testimony) concerning the unadmitted photographs, particularly because one of plaintiff's witnesses testified that the photographs were not taken at CNR and the proposed testimony of the nurse that they were not taken at CNR would have been cumulative.
Plaintiff argues that the court properly charged the jury with regard to the Public Health Law claim and that there was no error in the verdict sheet submitted to the jury, and that there is no basis upon which to direct a new trial. With regard to the jury's damages award, plaintiff argues that the jury's $3 million verdict constitutes reasonable compensation and should not be disturbed.
Discussion-Weight of the Evidence
To set aside a jury verdict on the basis that the evidence was legally insufficient, the court must find that there is "simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Bradley v Earl B. Feiden, Inc. , 8 NY3d 265, 273 [2007], quoting Cohen v Hallmark Cards, Inc. , 45 NY2d 493, 499 [1978] ). "The criteria to be applied in making this assessment are essentially those required of a Trial Judge asked to direct a verdict" and the court cannot set aside a jury's verdict where "the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon" ( Cohen , 45 NY2d at 499 ).
"A motion pursuant to CPLR 4404 (a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, or surprise" ( Allen v Uh , 82 AD3d 1025, 1025 [2d Dept 2011] ). In considering a motion to set aside the verdict in the interest of justice, the court "must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision" ( Heubish v Baez , 178 AD3d 779, 780 [2d Dept 2019] [internal quotation marks omitted]).
Further, "a jury verdict should not be set aside pursuant to CPLR 4404 (a) as against the weight of the evidence unless the verdict could not have been reached on any fair interpretation of the evidence. It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses" ( Stancati v Gunzburg ,159 AD3d 1011, 1011—1012 [2d Dept 2018] [internal citations and quotation marks omitted]).
Public Health Law §§ 2801-d and 2803-c state in pertinent part as follows:
§ 2801-d. Private actions by patients of residential health care facilities
1. 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.
2. Upon a finding that a patient has been deprived of a right or benefit and that said patient has been injured as a result of said deprivation, and unless there is a finding that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient, compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury, but in no event less than twenty-five percent of the daily per-patient rate of payment established for the residential health care facility under section twenty-eight hundred seven of this article or, in the case of a residential health care facility not having such an established rate, the average daily total charges per patient for said facility, for each day that such injury exists. In addition, 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.
§ 2803-c . Rights of patients in certain medical facilities
1. The principles enunciated in subdivision three hereof are declared to be the public policy of the state and a copy of such statement of rights and responsibilities shall be posted conspicuously in a public place in each facility covered hereunder.
2. The commissioner shall require that every nursing home and facility providing health related service, as defined in subdivision two and paragraph (b) of subdivision four of section twenty-eight hundred one of this article, shall adopt and make public a statement of the rights and responsibilities of the patients who are receiving care in such facilities, and shall treat such patients in accordance with the provisions of such statement.
3. Said statement of rights and responsibilities shall include, but not be limited to the following:
* * * * *
e. Every patient shall have the right to receive adequate and appropriate medical care, to be fully informed of his or her medical condition and proposed treatment unless medically contraindicated, and to refuse medication and treatment after being fully informed of and understanding the consequences of such actions.
To sustain the claim for defendant's alleged violation of the Public Health Law, plaintiff was required to set forth sufficient evidence that Mr. Smith was "depriv[ed] of a right conferred by contract, statute, regulation, code or rule" ( Novick v South Nassau Communities Hosp. , 136 AD3d 999 [2d Dept 2016] ). The Federal and New York State regulations concerning skin integrity are substantially similar and confer upon nursing home residents the right to skin integrity, and require nursing homes to ensure that:
"(i) A resident receives care, consistent with professional standards of practice, to prevent pressure ulcers, and does not develop pressure ulcers unless the individual's clinical condition demonstrates that they were unavoidable; and
(ii) A resident with pressure ulcers receives necessary treatment and services, consistent with professional standards of practice, to promote healing, prevent infection and prevent new ulcers from developing" ( 42 CFR 483.25 [b] [1]; see also 10 NYCRR 415.12 ).
Defendant argues that the case Novick v South Nassau Communities Hosp. (136 AD3d 999 [2d Dept 2016] ) stands for the proposition that plaintiff has not made a prima facie case. However, in that case, the Public Health Law claims were dismissed because the defendant was a hospital and not a nursing home. The court states " Public Health Law § 2801-d only applies to nursing homes. The basis for liability under the statute is neither deviation from accepted standards of medical practice nor breach of a duty of care. Rather, it contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule."
Defendant contends that plaintiff failed to make a prima facie case because plaintiff's expert did not establish a violation of the Public Health Law. Specifically, CNR argues that Dr. Capobianco's testimony was conclusory and unsupported by the medical records, and that he did not demonstrate that CNR failed to turn and position Mr. Smith, provide adequate nutrition, propose a feeding tube, or dress the wound appropriately. CNR further argues that Dr. Capobianco's testimony fails to connect any alleged violation of decedent's rights to prove causation, as Dr. Capobianco never opined that any alleged violation was a substantial factor in causing the decedent's injury.
Dr. Capobianco testified that the pressure ulcer developed and worsened under defendant's care, and that this claim is supported by the medical records admitted into evidence. He testified that he reviewed all of Mr. Smith's medical records as well as the deposition transcripts (Tr at 138-139, 154, 195-196). He opined as to the three interventions which were necessary to prevent pressure ulcers from developing or worsening (turning and positioning, nutrition, and wound care) (Tr at 145-147). He also opined that someone with a sacral pressure ulcer must not be positioned on his or her back — they must instead be positioned on alternating sides to allow the ulcer to heal (Tr at 152). Ultimately, Dr. Capobianco opined that defendant failed to provide adequate care during Mr. Smith's latter two periods that he was in defendant's care (from 4/11/13 to 12/16/13, then from 12/24/13 to 1/15/14), causing Mr. Smith to develop a Stage 4 decubitus pressure ulcer. Between October 2013 and December 2013, Dr. Capobianco testified that Mr. Smith developed a Stage 2 pressure ulcer that progressed to a Stage 4 ulcer, widening and deepening as well as becoming infected by the time he was admitted to the hospital on December 16, 2013.
The CNR medical records, as well as records from other facilities that treated Mr. Smith, were entered into evidence by the parties’ stipulation. Defendant did not provide any flow sheets documenting the progression of the ulcer for the dates November 22, 2013 to December 16, 2013, or December 24, 2013 to January 15, 2014, at which time he was in the defendant's care. The defendant's progress notes for that same period indicate the following: Mr. Smith was in "normal pain," and occasionally called out "ow"; the sacral ulcer progressed to Stage 4 by December 24, 2013 and remained a Stage 4 pressure ulcer until January 15, 2014 when plaintiff's decedent left defendant's facility the last time. By then, it was infected, had "seropurulent drainage," and a foul odor. Gaps in the medical records that Dr. Capobianco identified included missing entries in the CNA (certified nursing aide) documentation regarding turning and positioning and a lack of turning and positioning documentation in the MDS records. Specifically, he said that the MDS records indicate, commencing with his initial admission, that Mr. Smith was at risk for ulcers. The records say he was provided pressure relieving devices (mattress and chair), and ointments/medications, but the MDS for the period directly preceding the formation of the sacral pressure ulcer in October 2013 does not indicate that a program of turning and positioning was being done. Nor is there any mention of a pressure-relieving mattress being provided or a special cushion being provided for his wheelchair. Thereafter, Mr. Smith developed the pressure ulcer (Stage 2 as of mid-October) and, according to the MDS documents, Mr. Smith was provided with pain medication after the pressure ulcer developed. According to plaintiff's expert, the CNA daily records contain gaps, during which he says it is inferable that Mr. Smith was not turned and positioned for entire shifts. He found no records for 12 shifts (96 hours) spanning 9 days in September 2013; 27 shifts over 23 days in October 2013; 5 shifts in November 2013 (his testimony was that his conclusion was based on the absence of initials or other indicia that the turning and positioning had been done during various shifts in the CNA's daily logs).
After plaintiff's decedent left defendant's facility, the pressure ulcer at some point developed sepsis, the testimony indicated, and the decedent developed additional pressure ulcers, which lead to his death.
Dr. Capobianco further opined that Mr. Smith required a feeding tube long before defendant's staff ever raised that issue with Mr. Smith's family — in fact, the first time a feeding tube was discussed with his family but (without a doctor explaining the nature of the surgical procedure and its attendant risks) was on November 15, 2013, at which time Mr. Smith had already developed the pressure ulcer, it had worsened from a Stage 2 to a Stage 3 wound, and Mr. Smith had already lost more than 50 pounds. Dr. Capobianco's opinion was that defendant was obligated to address the need for a feeding tube before Mr. Smith's condition had so deteriorated, which was a result of the failure to provide decedent with adequate nutritional care, which is also necessary to promote skin integrity and healing ( see Tr. at 178-179, 194-195, 198).
Plaintiff's expert also opined that the pressure ulcer was avoidable, as the metric for determining whether a pressure ulcer is unavoidable is if the wound developed and worsened despite all reasonably necessary care having been provided, such as offloading pressure every two hours, providing adequate nutrition and appropriate wound care. He asserted that the failure to provide all reasonably necessary care prevents the conclusion that the pressure ulcer was unavoidable, even with Mr. Smith's comorbidities. He further stated that the first Stage 2 pressure ulcer (from August 2012 to September 2012) had healed completely in the defendant's care, demonstrating that the subsequent pressure ulcer at issue was avoidable and would have healed with appropriate care.
Defendant, on the other hand, argues that the pressure ulcer was unavoidable, due to decedent's comorbidities. The defendant avers that the CNA records demonstrate that care was provided at all but two shifts (one in October 2013 and one in November 2013). It further argues that the absence of a CNA's initials on numerous daily logs intended to record the turning and positioning are explained in the end-of-month summaries attached to those logs. The end-of-month summaries, defendant argues in support of this motion, are where the CNAs explain, at the end of each month, the missing information in the daily logs — e.g., the CNAs can indicate they did perform turning and positioning during a shift earlier in the month even when they did not sign the sheet on the date of that shift, or they can indicate that the intervention was not done and why. Defendant argues, in support of this motion, that the end-of-month summaries demonstrate that Mr. Smith was turned and positioned every two hours in all but two shifts.
There was no expert testimony at trial regarding these "end-of-month summaries." Defendant's expert did opine that MDS are "like a secondary documentation" intended for insurance purposes, whereas the CNA logs are the "primary documentation" (Tr at 354). While Dr. Perskin did not mention the end-of-month summaries, he testified that Mr. Smith was turned and positioned every two hours during his stay at CNR when his care plan called for such care, with the exception of his out of facility hospital visits (Tr at 353-354 [stating that he did not see any gaps in the documentation relating to turning and positioning]).
Defendant's expert further opined that the decedent's pressure ulcer was unavoidable, because the records demonstrated that he was turned and positioned as required (he discounted as irrelevant the gaps in the MDS reports), and stated that decedent's nutrition was adequate until his dementia worsened to "advanced dementia," and he testified that defendant's staff timely discussed Mr. Smith's nutrition, weight loss, and the option to have a feeding tube inserted on November 15, 2013. In sum, defendant's expert characterized the pressure ulcer as unavoidable in light of Mr. Smith's comorbidities and testified that the interventions performed, and care provided by defendant, was sufficient and met the "reasonably necessary" standard of care.
The court finds that plaintiff's evidence — which included the medical records for Mr. Smith from defendant, Methodist Hospital, Kingsbrook and Rutland — was legally sufficient. It cannot be said that there is "no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Bradley v Earl B. Feiden, Inc. , 8 NY3d 265, 273 [2007] ).
The jury was presented with differing expert analyses of the applicable standard of care for plaintiff's presenting symptoms and medical history, as well as the expert's differing testimony regarding what the medical records indicated, both of which raise credibility issues properly resolved by the jury ( e.g. Feinberg v Feit , 23 AD3d 517, 519 [2d Dept 2005] ; Shields v Baktidy , 11 AD3d 671, 672 [2d Dept 2004] ).
Further, plaintiff's expert's testimony was based, among other things, on evidence in the trial record (specifically, Mr. Smith's medical records) and was not simply conclusory or speculative as defendant's counsel claims. Any conflicting opinions, credibility determinations, and issues of fact were appropriately directed to the jury to be resolved, and it is the jury's right to accept or reject the opinion of one expert over another ( see Russo v Levat , 143 AD3d 966, 966 [2d Dept 2016] ; Zapata v Dagostino , 265 AD2d 324, 325 [2d Dept 1999] ; see also Wragge v Lizza Asphalt , 17 NY2d 313, 319 [1966] ). Here, plaintiff's expert testified that the pressure ulcer was avoidable, and defendant's expert testified that it was unavoidable. Plaintiff's expert testified that decedent's care was inadequate, and defendant's that his care was adequate.
Despite the deference owed to the jury's findings, the existence of a factual issue created by the evidence in the record does not deprive a trial judge of his or her discretionary power to intervene, utilizing the weight of the evidence standard ( Nicastro v Park , 113 AD2d 129, 135 [2d Dept 1985] ). Here, viewing the evidence in the light most favorable to nonmovant, the court cannot say that the jury's verdict could not have been reached upon any fair interpretation of the evidence. Contrary to defendant's argument, it is not irrational, upon a fair review of the evidence, that the jury found that plaintiff's evidence established that the defendant's alleged violations of the Public Health Law were a substantial factor in causing the decedent's injury, and that the pressure ulcers were avoidable. While Dr. Capobianco did not testify that the defendant's violations were a "substantial factor" in exactly those words, plaintiff's expert directly and causally linked the inadequate care he described to be violations of Mr. Smith's right to skin integrity and to the creation of and worsening of the pressure ulcer.
The Court's Alleged Errors
Defendant argues that a new trial should be ordered because it was deprived of a fair trial by the court's failure to include an interrogatory on the verdict sheet as to defendant's affirmative defense and because the court precluded the testimony of a CNR nurse that the photographs, which were withdrawn by plaintiff because plaintiff could not authenticate them, were not taken at CNR.
Testimony Regarding the Photographs
The plaintiff had four photographs marked for identification, at least one of which depicted the decedent's pressure ulcer. One of plaintiff's witnesses believed they were taken at CNR while others believed that the photographs were taken at NY Methodist Hospital. The court would not admit them, due to the lack of foundation regarding when and where the photographs were taken. Plaintiff's counsel then withdrew his request to enter the photographs into evidence (Tr at 267). Nonetheless, defense counsel sought to introduce testimony from a defense witness (a nurse) to testify that the photographs were not taken at CNR. Apparently her testimony would not be based on the decedent's condition, but on the furnishings, paint color and the like, which demonstrated to her that they were not taken at CNR. The court would not permit her to testify, on the basis that the photographs were not in evidence and because defendant's witness would not be able to lay a foundation for the photos either. The jury never saw the photographs and they were advised by the court that plaintiff's counsel's request to admit the photographs had been withdrawn (Tr at 295). Thus, the photographs of decedent's ulcer allegedly taken by plaintiff's grandson were not admitted into evidence.
Defendant's counsel never asked the court to give the jury a curative instruction regarding the photos, and he did not object to Gail Debose's (ultimately inaccurate) testimony regarding the photographs on the basis of lack of foundation. Jarian Debose, who actually took the photographs, testified that the photos were taken by him at CNR, but he had "no clue" when he took them. Defense counsel also failed to object to Jarian's testimony regarding the photos until they were actually offered into evidence by plaintiff's counsel. His objections were that "they're really prejudicial," are not probative, and they "do not accurately depict the wounds while they [sic] were at CNR" (Tr at 119). The court concluded that the photographs could not be admitted as they had not been authenticated. Defense counsel did, however, cross examine Jarian — showing him (but not the jury) two additional photos that the defendant intended to admit into evidence — whereupon he elicited Jarian's testimony that he took all of the photographs (the four pre-marked by plaintiff and the two pre-marked by defendant) at CNR. Defense counsel then asked to admit his two photographs into evidence and the court again conditioned any admittance of the photographs upon establishing the date on which the photographs were taken (Tr at 128). Again, defense counsel asserted that his objection to the photographs "is that [they] do not accurately depict the wounds as they appeared and existed while Mr. Smith was at [CNR]" (Tr at 129). Defense counsel finally objected to the photographs on the basis of authenticity only after three of plaintiff's witnesses were examined (and cross-examined) about them and both plaintiff's attorney and defendant's attorney had tried unsuccessfully to authenticate the photos and admit them into evidence ( see Tr at 234). Plaintiff's witnesses even testified that they were not sure where the photographs were taken and one witness — Vanessa Canty — testified that the photos were taken at a different facility.
Defendant argues that even otherwise inadmissible evidence should be admitted to correct a misleading impression made to the jury where the other side "opened the door" to the inadmissible evidence (citing People v Massie , 2 NY3d 179, 184 [2004] ["a trial court should decide ‘door-opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression" ]). However, defendant never sought to admit plaintiff's four photographs on that basis and, instead, sought to introduce its own two photographs for which there was no foundation and, ultimately, (several days later) objected to admitting all of the photographs on the basis that they were unauthenticated.
It is also noted that Jarian testified that he had to make an appointment to come and take the photographs, but defendant declined to produce a CNR employee to testify as to whether or not any appointment was made with Mr. Smith's family to allow the family to photograph the decedent's pressure ulcer. Instead, counsel wanted to produce a CNR witness, its director of nursing, to testify only as to whether the photographs, which were not in evidence and had already been withdrawn, were actually taken at CNR or at another facility. Defendant did not seek any curative instruction with regard to the photographs.
Further, plaintiff's own witnesses testified that they were unsure where or when the photographs were taken, and one witness, Vanessa Canty, testified that she believed the photograph was not taken at CNR. Defendant was not unduly prejudiced by the court's decision to not permit defendant's director of nursing from testifying that the photographs were taken at a different facility.
The Asserted Error With the Verdict Sheet
With regard to the verdict sheet, defendant argues that Dr. Perskin, their expert, opined that CNR exercised all care reasonably necessary to prevent the recurrence of the pressure ulcer and appropriately treated the pressure ulcer upon its unavoidable recurrence. Defendant contends that the verdict sheet should have included a question on the issue of whether defendant had met its burden of proof with regard to its affirmative defense that it "exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted" (PHL § 2801-d [1] ).
Defendant's counsel submitted a proposed verdict sheet that asked for these questions:
" QUESTION NO. 1:
DID THE DEFENDANT [CNR] DEPRIVE HERCULES SMITH OF A RIGHT OR BENEFIT CREATED OR ESTABLISHED BY LAW FOR A PATIENT'S WELL-BEING?
....
QUESTION NO. 2:
WAS THE DEPRIVATION OF A RIGHT OR BENEFIT CREATED OR ESTABLISHED BY LAW FOR A PATIENT'S WELL-BEING A SUBSTAINTIAL FACTOR IN CAUSING INJURY TO HERCULES SMITH?
....
QUESTION NO. 3:
DID CENTER FOR NURSING AND REHABILITATION EXERCISE ALL CARE REASONABLY NECESSARY TO PREVENT AND LIMIT THE DEPRIVATION AND INJURY?" (E-file Doc 43).
The court did charge the jury with regard to CNR's affirmative defense, which is in the statute, but did not include CNR's proposed third question on the verdict sheet (or use the precise language that CNR had proposed, generally) ( see Tr 461-4-63). Before the jury was sent to deliberate, the court charged the jury with instructions regarding the defendant's affirmative defense as follows:
"There is an exception to liability when the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is claimed. In effect, this state statute makes [CNR] ... liable to a resident like Mr. Smith and ... his estate if an injury results from the nursing home's failure to comply with any applicable regulation, unless the nursing home proves that it exercised all care reasonably necessary to prevent the injury.
... 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." ( id. [emphasis added]).
Additionally, the verdict sheet that was given to the jury inquired:
" QUESTION No. 1
DID [CNR] VIOLATE THE DECEDENT HERCULES SMITH'S RIGHTS UNDER THE NEW YORK STATE PUBLIC HEALTH LAW, SPECIFICALLY HERE, HIS RIGHT TO SKIN INTEGRITY, THAT IS, TO BE FREE FROM AVOIDABLE PRESSURE SORES?
....
QUESTION #2
WAS THE VIOLATION OF THE DECEDENT'S RIGHT TO BE FREE FROM AVOIDABLE PRESSURE SORES A SUBSTANTIAL FACTOR IN CAUSING INJURY TO HERCULES SMITH?
....
QUESTION #3
DID [CNR] VIOLATE THE DECEDENT HERCULES SMITH'S RIGHTS UNDER THE NEW YORK STATE PUBLIC HEALTH LAW, SPECIFICALLY HERE, HIS RIGHT TO SKIN INTEGRITY, BY FAILING TO PROVIDE THE NECESSARY TREATMENT AND SERVICES FOR HIS PRESSURE SORES TO PROMOTE HEALING, PREVENT INFECTION AND PREVENT NEW SORES FROM DEVELOPING ?
....
QUESTION #4
WAS THE VIOLATION OF THE DECEDENT'S RIGHT TO HAVE THE NECESSARY TREATMENT AND SERVICES FOR HIS PRESSURE SORES A SUBSTANTIAL FACTOR IN CAUSING INJURY TO HERCULES SMITH?" (E-File Doc 51 [emphases added]).
Defendant incorrectly frames its argument that these two alleged errors warrant a new trial on all issues because they caused the jury to render a verdict which is against the weight of the evidence (E-File Doc 38). These alleged errors are properly reviewed under the standard applicable to interest of justice claims, not weight of the evidence claims. Under the appropriate standard, the court "must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision" ( Heubish v Baez , 178 AD3d 779, 780 [2d Dept 2019] [internal quotation marks omitted]).
While defendant's proposed question regarding its affirmative defense was not asked as requested ("DID [CNR] EXERCISE ALL CARE REASONABLY NECESSARY TO PREVENT AND LIMIT THE DEPRIVATION AND INJURY?") (E-file Doc 43 [Proposed Verdict Sheet]), the court's verdict sheet asked effectively the same question phrased differently. That is, the court first asked in Questions #1-2 whether CNR violated Mr. Smith's right to be free from avoidable pressure sores. Both experts testified that unavoidable pressure sores are those that occur and/or worsen despite all reasonable care and interventions being performed by the nursing home facility and, thus, if the pressure sore was unavoidable, the jury should have found for defendant. More importantly, the verdict sheet submitted to the jury also asked in Question #3 whether CNR violated Mr. Smith's right to skin integrity by " failing to provide the necessary treatment and services for his pressure sores to promote healing, prevent infection and prevent new sores from developing ?" This inquiry is substantively the same question as defendant's proposed interrogatory: if defendant had provided all necessary treatment and services, the answer to Question #3 should have been "no" because CNR would have proved its affirmative defense and the jury would have to have found for the defendant (as they were charged by the court). Instead, the jury found that CNR did violate Mr. Smith's right to be free from avoidable pressure ulcers, as they failed to provide all reasonably necessary treatment and services, and that the violation was a substantial cause of Mr. Smith's injuries. Phrased differently, the jury found that plaintiff proved her claim by a preponderance of the evidence and defendant did not prove its affirmative defense.
This is what the court charged the jury with regard to Public Health Law Section 2801-d, from the Trial Transcript, Pages 461-466:
New York States’ Public Health Law, Section 2801-d provides that any residential health care facility that deprives any patient of said facility of any right or benefit shall be liable to said patient for injuries suffered as a result of said deprivation. The term right or benefit is defined to include any right or benefit created or established for the well-being of the patient by the terms of any state or federal code, rule or regulation. There is an exception to liability when the facility exercised all care, reasonably necessary to prevent and limit the deprivation and injury for which liability is claimed. In effect, this state statute makes a nursing home like the defendant liable to a resident like Mr. Smith and here, his estate, if an injury results from the nursing home's failure to comply with any applicable regulation, unless the nursing home proves that it exercised all care reasonably necessary to prevent the injury. The New York State statute, 2801-d specifically says 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, injuries shall include but not be limited to physical harm to a patient.
Subsection two, "Upon a finding that a patient has been deprived of a right or benefit that said patient has been -- I am sorry, and that said patient has been injured as a result of said deprivation, and unless there is a finding that the facility exercised all care, reasonably necessary to prevent and limit the deprivation and injury to the patient, compensatory damages shall be assessed in an amount sufficient to compensate such patient for such injury." So in the federal regulations that apply to nursing homes in this section called quality of care, it states, "Quality of care is a fundamental principle that applies to all treatment and care provided to facility residents. Based upon the comprehensive assessment of a resident, the facility must ensure that residents receive treatment and care in accordance with professional standards of practice. The comprehensive person-centered care plan and the resident's choices including but not limited to the following," and then there is a specific section about skin. This is in 42 Code of Federal Regulations, Section 483.25 subsection B, called skin integrity. Subsection one says, " Pressure ulcers, based on the comprehensive assessment of a resident, the facility must ensure that one, a resident receives care consistent with professional standards of practice to prevent pressure ulcers and does not develop pressure ulcers unless the individual's clinical condition demonstrates that they were unavoidable." And then subsection two, "A resident with pressure ulcers receives necessary treatment and services consistent with professional standards of practice to promote healing, prevent infection and prevent news ulcers from developing."
So the definition of what is avoidable with regard to pressure sores or ulcers means that the resident developed a pressure ulcer in a facility, and the facility did not do one or more -- I am sorry, hold on a second. Yes, did not do one or more of the following, evaluate the resident's clinical condition and pressure ulcer risk factors, define and implement interventions that were consistent with the resident's needs and monitor and evaluate the impact of the interventions or review the interventions as appropriate.
So the first question you will be asked to answer, "Did the Center for Nursing & Rehabilitation violate the decedent, Hercules Smith's rights under the New York State Public Health Law, and specifically here, his right to skin integrity, that is to be free from avoidable pressure sores, yes or no?" Then it says if you said yes then you go to question two. If you said no, you go to question three. Question two asks, "Was the violation of the decedent's right to be free from avoidable pressure sores a substantial factor in causing injury to Hercules Smith?" So what does that mean, substantial factor? An act or failure to act is regarded as the cause of an injury if it was a substantial factor in bringing about the injury, that is if it had such an effect at producing the injury that reasonable people would regard it as a cause of the injury. It may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. The next question, question three asks you, "Did the Center for Nursing & Rehabilitation violate the decedent, Hercules Smith's rights under the New York State Public Health Law, specifically here his right to skin integrity, by failing to provide the necessary treatment and services for his pressure sores to promote healing, prevent infection and prevent new sores from developing, yes or no?" Then it tells you if you answered yes to go to the next question. If you answered no, to only go to the last question, if you answered yes to questions one and two.
Then the next question, which is question Four, which is identical to question two is, "Was the violation of the decedent's right to have the necessary treatment and services for his pressure sores a substantial factor in causing injury to Hercules Smith?"
This is directly from PHL § 2801-d (1) but there is a typo in the transcript.
So, the definition of substantial factor is the same.
Subsequent to the trial, the Pattern Jury Instruction Committee issued a pattern charge for this cause of action. It first appeared in the 2021 edition of the PJI, at 2:151D. It provides as follows:
Pattern Jury Instructions (Civil) Committee of the Association of Justices of the Supreme Court of the State of New York.
PJI 2:151D Residential Health Care Facilities— Public Health Law § 2801-d
Public Health Law § 2801-d permits the patient of a residential health care facility to recover for any injury suffered as the result of a deprivation of a right or benefit that has been established by the terms of any (contract, state or federal statute, code, rule, or regulation) established for his or her well-being. In this case, AB contends that CD deprived (him, her) of certain specified rights or benefits and that AB suffered injury as a result of (that, those) deprivation(s).
The rights or benefits that AB claims (he, she) was deprived of are set forth in [ describe the relevant contracts, statutes, codes, rules, or regulations ]. I will now read these provisions to you: [ state the relevant text of each applicable contractual term, statute, code, rule, and/or regulation ].
To prevail on this Public Health Law claim, AB has the burden to establish, by a preponderance of the evidence, that CD deprived (him, her) of at least one of the rights or benefits I just described for you, and that AB suffered injury as a result of (that, those) deprivation(s). If you find that AB did not establish, by a preponderance of the evidence, that CD deprived (him, her) of any of the rights or benefits I described for you, or that AB did not suffer an injury as a result of (that, those) deprivation(s), then you will find for CD on this claim. If you find that AB did establish, by a preponderance of the evidence, that CD deprived AB of at least one of the rights or benefits I described for you, and that AB suffered injury as a result of (that, those) deprivation(s), [ where CD has asserted the affirmative defense that it exercised all care reasonably necessary to prevent and limit AB's deprivation and injury : then you will find for AB on that issue] [ where no affirmative defense is asserted: then you will find for AB on that claim].
[ Add the following where CD has asserted the affirmative defense that it exercised all care reasonably necessary to prevent and limit the deprivation(s) and injury(ies) AB has established : Next, you must consider whether CD has established a defense to AB's claim by demonstrating that it exercised all care reasonably necessary to prevent and limit the deprivation(s) and injury(ies). CD has the burden to establish, by a preponderance of the evidence, that it exercised all care reasonably necessary to prevent and limit the deprivation(s) and injury(ies). If you find that CD did establish, by a preponderance of the evidence, that it exercised all care reasonably necessary to prevent and limit the deprivation(s) and injury(ies), then you will find for CD on this defense. However, if you find that CD did not establish, by a preponderance of the evidence, that it exercised all care reasonably necessary to prevent and limit the deprivation(s) and injury(ies), then you will find for AB on this claim.] (emphasis added).
The court finds that the jury was properly charged, and that the affirmative defense was explained in the appropriate manner. The above PJI charge, in the last sentence, concludes that if defendant did not establish, by a preponderance of the evidence, that it exercised all care reasonably necessary to prevent and limit ... you will find for plaintiff on this claim." This implies that the is not a separate interrogatory for the affirmative defense, but just a consideration of the affirmative defense in deciding if plaintiff should prevail. Of course, it does not bar a separate interrogatory.
Plaintiff's attorney argued strenuously at the contentious charge conference in this case that a separate interrogatory for the affirmative defense was "a second bite at the apple" and, in addition, argued that causation or "substantial factor" was not a proper question. Neither of these arguments are correct, it is noted.
The court must point out that there was no PJI for this cause of action at the time, and a search of various sources confirmed to the undersigned that not all judges included a "substantial factor" question on their verdict sheets. Defendant's counsel provided some verdict sheets, and the court obtained some from colleagues. The above PJI states "as a result of" which is intended to be a finding of causation as explained in the comment after the charge, described above. For example, on a sample verdict sheet defendant's counsel provided from a prior case in Kings County, the court included the affirmative defense question defendant requested, but no causation (or substantial factor) question. That is, in Johnson as Administrator v CNR , 22514/10, the jury was asked the following questions:
1. Did CNR exercise all care reasonably necessary to prevent pressure ulcers ?
2. Did CNR deprive decedent of her right to be free from avoidable pressure ulcers ?
3. Did decedent's clinical condition make it impossible for CNR to provide adequate nutrition?
4. Did CNR exercise all care reasonably necessary to provide adequate nutrition?
5. Did CNR deprive decedent of her right to adequate nutrition?
6. State the amount, if any, awarded to [plaintiff] for damages as a result of her having been deprived of her rights pursuant to the Public Health Law.
In another case, in Niagara County, the jury was asked "Did defendant violate any of the regulations read to you by the judge?" then "Was the violation of a regulation or regulations by the defendant a substantial factor in causing injury to the plaintiff?" The jury in that case awarded $475,000 for the PHL violation in addition to pain and suffering damages for the negligence claims, in the verdict reported at 2018 WL 7702132. There was no interrogatory about affirmative defenses.
A Queens case (Ind. No. 15988/05) included interrogatories for both the substantial factor issue and the affirmative defense, asking "Did [defendant] exercise all care reasonably necessary to prevent and limit the deprivation of a right or benefit and injury to [plaintiff]?
In the case at bar, plaintiff had two claims which were put before the jury, both on an alleged violation of the right to skin integrity. The first was whether his right to skin integrity was violated, "that is, his right to be free from avoidable pressure sores," and the second was whether his right to skin integrity was violated by defendant's "failing to provide the necessary treatment and services for his pressure sores." Both questions were followed by a substantial factor question, and the jury answered all four questions "yes." In light of the PJI having subsequently issued recommended language, it appears that two questions would have sufficed, by combining questions one and three, but this would not have affected the outcome. It merely would have simplified matters for the jury a little bit.
Accordingly, the court finds that these asserted errors did not prevent substantial justice from been done and it is not likely that the verdict was affected by the wording of the questions ( Heubish v Baez , 178 AD3d at 780 ). Viewing the evidence adduced at trial and the effect of prejudice, if any, arising from the rulings at issue here, the court finds that defendant was not deprived of a fair trial and justice was not subverted.
The Jury's Damage Award
Defendant argues that the jury's award of Three Million ($3,000,000) Dollars "to compensate for the pain associated with a single pressure ulcer spanning a 10-month period" is excessive and should be "substantially" reduced (Aff Ms. Solomon at page 26).
Under the Public Health Law, a plaintiff is permitted an award of compensatory damages in the amount of no less than twenty-five percent of the daily per-patient rate of payment established for the facility (pursuant to Public Health Law § 2807 ) or, in the case of a facility not having an established rate, the average daily total charges per patient for the facility for each day that such injury exists (under Public Health Law § 2801-d [2] ). For purposes of Public Health Law § 2801-d, an " ‘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" ( see PHL § 2801-d [1] ). Punitive damages are only permitted where the deprivation is found to have been willful or in reckless disregard of the plaintiff's rights and are not at issue in this action.
Generally, with regard to damages for personal injuries, the Second Department has held in Halsey v New York City Tr. Auth. :
"The amount of damages to be awarded to a plaintiff for personal injuries is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation. The reasonableness of compensation must be measured against relevant precedent of comparable cases" ( Halsey v NY City Tr. Auth. , 114 AD3d 726 [2d Dept 2014] ) ( see also CPLR 5501 [c] [adopted by trial-level courts as the standard of review for CPLR 4404 motions]).
Defendant claims the verdict was excessive and must be reduced. Before embarking on this analysis, a few comments are necessary. First, damages under this statute are not the same as pain and suffering damages. For one thing, an award of pain and suffering damages requires consciousness of the pain and suffering, but a claim under this statute does not. As Justice Billings in New York County recently stated "In sum, defendant claims that its former patient experienced no conscious pain and suffering after defendant's unlawful conduct destroyed his brain function. The court holds that New York Public Health Law §§ 2801-d and 2803-c (3) (e) and the regulations under those statutes are designed to remedy that paradox" ( Smith v North Manhattan Nursing Home, Inc. , ––– Misc 3d ––––, 2020 NY Slip Op 20334, *1 [2020]). Additionally, damages for a violation of this statute can be awarded in addition to pain and suffering damages if a plaintiff also has a claim for negligence or medical malpractice. In a case that is not recent, the Second Department concluded "A negligence cause of action is separate and distinct from, and involves considerations different from, a cause of action to recover damages for deprivation of rights pursuant to Public Health Law § 2801-d ( Sullivan v Our Lady of Consolation Geriatric Care Ctr. , 60 AD3d 663, 663 [2d Dept 2009] ). Finally, liability is not based on a deviation from accepted standards of medical practice or a breach of a duty of care ( see Schwartz v Partridge , 179 AD3d 963, 117 NYS3d 300 [2d Dept 2020] ; Cornell v Monroe , 158 AD3d 1151, 70 NYS3d 646 [4th Dept 2018] ; Novick v South Nassau Communities Hosp. , 136 AD3d 999, 1001, 26 NYS3d 182 [2d Dept 2016] ; Zeides v Hebrew Home for the Aged at Riverdale, Inc. , 300 AD2d 178, 753 NYS2d 450 [1st Dept 2002] ). Rather, liability under the statute contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule ( see Schwartz v Partridge , supra ; Cornell v Monroe, supra; Zeides v Hebrew Home for the Aged at Riverdale, Inc., supra. )
It is incumbent on a defendant, when challenging a jury's verdict as excessive, to present lower awards for comparable injuries that appellate courts have sustained, despite an appeal to increase the award or have it lowered because the jury's award was unreasonably high (see Matter of 91st St. Crane Collapse Litig., 154 AD3d 139, 153 [1st Dept 2017] ; Wilson v City of New York , 65 AD3d 906, 911 [1st Dept 2009] ; Morsette v The Final Call, 309 AD2d 249, 256 [1st Dept 2003] ; Reed v City of New York, 304 AD2d 1, 7 [1st Dept 2003]; see also Erosa v Coomaraswamy, 129 AD3d 578, 579 [1st Dept 2015] ; Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 275 [1st Dept 2007] ). Where an appellate court simply sustains an award or increases an award because it was unreasonably low, the decision that approved the award means only that it is within the range of reasonableness and does not mean that a higher award would not also be within that range. A defendant cannot satisfy its burden of proof with awards which are a result of a settlement or an award that was never appealed. However, as this cause of action has caused so much confusion, there is insufficient appellate precedent for defendant to satisfy its burden with PHL claims alone.
Defendant claims the most relevant Appellate Division decision for the court to refer to is Messina v Staten Is. Univ. Hosp. , 121 AD3d 867 [2d Dept 2014]. However, this was a medical malpractice case, without a claim under the Public Health Law. In this case, the plaintiff had more severe personal injuries than those in this case. The Messina plaintiff was awarded $1 million for past pain and suffering and $1,992,000 for future pain and suffering and that award was confirmed by the Appellate Division. Defendant claims that as that plaintiff's injuries were more severe, and were not just one injury, and were suffered over a substantially longer period of time, this case demonstrates that in the case at bar, the plaintiff was awarded too much. The court is more inclined to conclude that this decision is useless for the purpose for which it is cited.
The plaintiff's claims under the applicable regulations here entitled her decedent to adequate physician's services, nursing services, and other medical services; care necessary to attain his highest practicable physical, mental, and psychosocial well-being and to enhance his activities of daily living; and care that enhanced his quality of life, dignity, and self-determination. The statute, PHL § 2801-d, provides for damages which include, but are not limited to, "physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient" ( NY Pub. Health Law § 2801-d [1] ). This definition of injury does not require a conscious awareness of the harm. The damages recoverable for these injuries are, as stated in the statute, "in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings, including tort causes of action, and may be granted regardless of whether such other remedies are available or are sought. A violation of subdivision three of section twenty-eight hundred three-c of this article is not a prerequisite for a claim under this section" ( NY Pub. Health Law § 2801-d [4] ; Zeides v Hebrew Home for the Aged at Riverdale , 300 AD2d at 180 ; Kash v Jewish Home & Infirmary of Rochester, NY, Inc. , 61 AD3d at 149 ; see Pichardo v St. Barnabas Nursing Home, Inc. , 134 AD3d at 425 ). Awards in medical malpractice actions thus cannot be relied on for "comparables."
Defendant's counsel next claims it is necessary to leave the Second Department for other relevant cases, and cites Alvarez v Beth Abraham Health Servs. , 101 AD3d 647 [1st Dept 2012], another medical malpractice case without any claims under the Public Health Law, in which a quadriplegic plaintiff developed a single pressure ulcer which required a debridement procedure. He was awarded $500,000 for seven years of past pain and suffering and $250,000 for future pain and suffering.
Next, defendant cites a case from the Third Department, another medical malpractice action without a Public Health Law claim (and the defendant is not a nursing home), O'Connor v Kingston Hosp. , 166 AD3d 1401, 1404 [3d Dept 2018], where a plaintiff's award of $500,000 for pressure ulcers was upheld despite arguments that he was not in pain at times and/or any pain he experienced was caused by his cancer and other ailments, not the ulcers.
In defendant's counsel's survey of New York State, she next cites a case from the Fourth Department, Kolbert v Maplewood Healthcare Ctr., Inc. , 21 AD3d 1301 [4th Dept 2005], where the Court ordered a new trial unless the plaintiff accepted a reduction from $1.5 million to $500,000 for pain and suffering. The plaintiff's decedent in that case had suffered pressure ulcers for four months prior to her death. There were no claims under the NY Public Health Law.
Having cited these four inapplicable cases, counsel concludes that "a comparison of all of the foregoing cases to the case at bar should lead this court to order a drastic reduction in the jury's $3 million award, which was intended to compensate for a single pressure ulcer endured by decedent for less than one year."
Defendant's counsel next cites a half dozen trial court decisions reported in the Jury Verdict Reporter to support defendant's position that this verdict was excessive. They include Blutner v The Mount Sinai Hosp. , 2017 WL 1682813 [Sup Ct, Queens County 2017] (in which plaintiff was awarded $500,000 for a medical malpractice claim involving a Stage 4 pressure ulcer ) and Nieves v Clove Lakes Health Care and Rehabilitation Inc. , 2016 WL 3523370 [Sup Ct., Richmond County 2016] (wherein the plaintiff was awarded $400,000 for deprivation of the decedent's rights under the Public Health Law). This case also has a reported decision, but the Second Department did not reach the issue of whether the Nieves award was excessive, since the verdict was overturned on the basis that the defendant was deprived of a fair trial by plaintiff's counsel's inflammatory and improper summation ( see Nieves v Clove Lakes, 179 AD3d 938 [2d Dept 2020] ).
In the case at bar, as there were no negligence or medical malpractice claims, this court determined that pain and suffering could be included in the damages award for violating plaintiff's rights under the Public Health Law, as such an award would not be duplicative. The statute, PHL § 2801-d, does not prohibit such a conclusion. It says, "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" (PHL § 2801-d [1] ). Here, defendant offered no evidence that Mr. Smith was incapable of experiencing pain or discomfort. Nor is there a requirement that an award for pain and suffering under a PHL claim requires conscious pain and suffering.
Plaintiff responds to this branch of the motion that the $3 million award is reasonable and should not be set aside. Plaintiff cites Parson v Interfaith MC , 267 AD2d 367 [2d Dept 1999], in which the Second Department reduced a jury award of $1 million for pain and suffering damages to $400,000 for a Stage 4 ulcer in a 92-year-old plaintiff who suffered for six-months at the very end of her life. Plaintiff argues that the $400,000 award 21 years ago renders this award reasonable, especially because, as here, it is not necessarily clear that the plaintiff in that case (who also had dementia) was aware of the pressure ulcer or that it caused her pain. Parson did not include a claim under the Public Health Law.
Plaintiff also cites various cases for the proposition that the amount of time that one is in pain does not necessarily require a lesser award (e.g., various motor vehicle accident cases where the injured person died shortly after the collision and was still awarded between $300,000 and several million dollars for pain and suffering). Plaintiff's cited cases all involve negligence claims, not Public Health Law claims.
Defendant's Reply affirmation distinguishes plaintiff's cited cases, many of which involved more severe injuries (e.g., where $500,000 was reasonable for the loss of use of an arm, a case involving multiple pressure ulcers, or one where the plaintiff had other injuries; $500,000 was deemed reasonable for multiple pressure ulcers that required multiple surgical procedures; $1 million was reasonable for five years of pain and suffering from multiple pressure ulcers as well as other injuries). Defendant also notes that the 2005 award in Kolbert , as reduced by the Fourth Department, is now worth $672,231.25 when accounting for inflation. With regard to Parson , cited by plaintiff, defendant argues that the reduction of the award from $1 million to $400,000 in 1999 (equivalent to $624,197 today with inflation) supports defendant's argument that this award must be significantly reduced. In Parson v Interfaith Med. Ctr. , 267 AD2d 367 [2d Dept 1999], the award was found to be excessive even where the decedent died a slow and painful death caused by three Stage 4 pressure ulcers (he had a total of six ulcers) which festered for several months.
Because most of the cited cases are not instructive, in part because Erie County damages are not the same generally as Brooklyn damages, and because this is a (relatively) new cause of action, the court looked for cases in Lexis and the NY Jury Verdict Reporter, and concludes that the cases that most closely resemble the circumstances here have generally involved awards ranging from $500,000 to $1 million, with most of the comparable injuries being, generally, at the lower end of the range. Mr. Smith's injuries here were not as severe as those in many of the cases cited by the parties, as his was a single pressure ulcer, and his pain and suffering lasted about ten months (from October 2013 until his death in August 2014). While it is often difficult to ascertain from the limited information in the Jury Verdict Reporter the amount of time that the pain and suffering damages are awarded for, or where a settlement is reached, most awards for pain and suffering resulting from sacral pressure ulcers that lasted for one year or less have been significantly less than $3 million ( e.g. Palmieri v Staten Island Univ. Hosp. , 2012 WL 12136273 [Sup Ct, Richmond County] [Index No. 150038/2012] [involving medical malpractice claims]; Estate Viola Ivey Deceased, by and Through Her Admx., Francine Acevedo v Jewish Home & Hosp. for Aged , 2010 WL 1347244 [Verdict & Settlement Summary] [awarding $150,000 for about 2 months of pain and suffering from pressure ulcers in a Public Health Law violation action]).
Therefore, the court finds that a new trial should be held, unless, within 30 days of service of a copy of this order with notice of entry, plaintiff agrees to a reduction to $700,000 for compensatory damages for the injuries sustained as a result of defendant's violation of Public Health Law § 2801-d.
Accordingly, it is ORDERED that the branches of the defendant's motion to set aside the verdict and enter judgment in defendant's favor, as the verdict is legally insufficient or is against the weight of the evidence are denied; and it is further
ORDERED that the branch of the defendant's motion for a new trial due to alleged errors in the trial court's rulings during the trial is denied; and it is further
ORDERED that the branch of the defendant's motion for a new trial on the issue of damages is granted to the extent that a new trial on the issue of the appropriate compensatory damages under PHL § 2801-d is directed unless, within 30 days of service of a copy of this order with notice of entry, plaintiff stipulates to a reduction in the award to Seven Hundred Thousand ($700,000) Dollars.
This constitutes the decision and order of the court.