Opinion
Index No. 805111/2018 MOTION SEQ. Nos. 001 002
07-14-2023
ROSLYN TAYLOR, as Administratrix of the Estate of RONALD H. TAYLOR, SR., Deceased, Plaintiff, v. TERENCE CARDINAL COOKE HEALTH CARE CENTER, ARCHCARE COMMUNITY SERVICES, INC., THE MOUNT SINAI HOSPITAL, KEVIN HU, M.D., Defendants.
Unpublished Opinion
PRESENT: HON. KATHY J. KING Justice.
DECISION + ORDER ON MOTION
KATHY J. KING, JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 110, 112, 113, 114, 115, 116, 117, 118, 123, 124, 125, 128, 129, 130 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 111, 119, 120, 121, 122, 126, 127 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.
Upon the foregoing papers in this medical malpractice action, defendant TERENCE CARDINAL COOKE HEALTH CARE CENTER (hereinafter "TCC") moves for summary judgment dismissing the plaintiff's complaint pursuant to CPLR §3212 (Mot. Seq. No. 01), and defendants, THE MOUNT SINAI HOSPITAL and, KEVIN HU (collectively referred to as "MSHU"), move for summary judgment dismissing the complaint in its entirety, pursuant to CPLR § 3212 (Mot. Seq. No. 02).
Plaintiff opposes both motions.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is the daughter of Ronald H. Taylor, Sr., ("Taylor") deceased, who brings this action as Administratrix of his estate. Taylor had been a resident at TCC since December 23, 2015, with a diagnosis of septic shock, end stage renal disease on dialysis, morbid obesity, and urinary tract infection. His weight on admission was 300 lbs., and according to a plan of care put in place when he was admitted to TCC, he required a two-person assist for bed mobility, transferring and toileting. Taylor received dialysis three days a week in the dialysis unit at TCC. For almost two years while at TCC, Taylor was transported to dialysis via stretcher, and was transferred to and from his bed via Hoyer Lift.
The allegations in plaintiff's complaint arise from an incident occurring on October 21, 2017, at approximately 4:00 p.m., upon Taylor's return from dialysis. Taylor fell, landing on the floor, while being transferred by two Certified Nurses Assistants ("CNAs") from the stretcher to the bed with the use of a Hoyer Lift. The medical records indicate that because of the fall, Taylor sustained two abrasions to his left elbow, and a hematoma to his inner right thigh.
At approximately 5:11 p.m., Hunter Ambulance Emergency Medical Service ("EMS") arrived at TCC to transport Taylor to Mount Sinai Emergency Room for further evaluation. A head-to-toe physical assessment of Taylor was conducted, which included a level of consciousness assessment. The decedent's vital signs were found to be within normal limits. Taylor was evaluated by Dr. Kevin Hu, the Emergency Room attending physician, who found no evidence of neurologic or cardiac etiology. A head CT which had been initially ordered was canceled. Additionally, physician assistant, Cara Newman ("Newman"), documented that an x-ray of Taylor's left elbow was negative, and a wet read of the right knee was negative. As a result, Taylor was medically cleared to be sent back to TCC, since no fracture or evidence of neurological or cardiovascular injury was found. When EMS arrived at 12:26 a.m. on October 22, 2017, to transport Taylor back to TCC, Taylor was alert and oriented, respirations were unlabored and even, and vital signs were within normal limits.
During the transfer to TCC, but prior to completion, EMS noticed for the first time that Taylor's respirations were shallow, and his extremities were flaccid. Within minutes of arriving on the floor at TCC, Taylor's condition changed drastically. His respirations and pulse decreased significantly, and he became unresponsive. Taylor was transported back to Mount Sinai's Emergency Room, and upon arrival the decedent was pulseless. Taylor died at 3:04 a.m. on October 22, 2017.
Thereafter, plaintiff commenced the instant action on April 9, 2018, and asserts causes of action sounding in medical malpractice, wrongful death, and failure to comply with NY Public Health Law 2805-d, as to defendants TCC, MSCU, and HU. Plaintiff also asserts causes of action sounding in negligence, gross negligence and violations of Public Health Law §§ 2801-d and 2803-C, as to TCC and Archcare Community Services, Inc. (hereinafter "Archcare").
Archcare, the owner and operator of TCC, was served with a summons and complaint, however, it has not filed an answer or appeared in this action.
Defendants TCC and MSCU now file the instant motions.
The Court notes that the respective notice of motions of TCC and MSCU seek dismissal of plaintiff's complaint; however, TCC's moving papers address only plaintiff's medical malpractice cause of action and MSCU's moving papers are limited to plaintiff's medical malpractice and informed consent causes of action.
DISCUSSION
It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR § 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v. J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v. Restani Constr. Corp., 18 N.Y.3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v. Fischer Mills Condo Assn., 181 A.D.3d 448, 449 [1st Dept 2020]).
"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v. Women's Natl. Republican Club, Inc., 148 A.D.3d 401, 403404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v. Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet its burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff's case. It must affirmatively demonstrate the merit of its defense (see Koulermos v. A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v. United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).
"To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice and (2) evidence that such departure was a proximate cause of plaintiff's injury" (Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 24 [1st Dept 2009]; see Roques v. Noble, 73 A.D.3d 204, 206 [1st Dept 2010]; Elias v. Bash, 54 A.D.3d 354, 357 [2d Dept 2008]; DeFilippo v. New York Downtown Hosp., 10 A.D.3d 521, 522 [1st Dept 2004]).
A defendant physician moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by establishing the absence of a triable issue of fact as to his or her alleged departure from accepted standards of medical practice (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Frye v. Montefiore Med. Ctr., 70 A.D.3d at 24) or by establishing that the plaintiff was not injured by such treatment (see McGuigan v. Centereach Mgt. Group, Inc., 94 A.D.3d 955 [2d Dept 2012]; Sharp v. Weber, 77 A.D.3d 812 [2d Dept 2010]; see generally Stukas v. Streiter, 83 A.D.3d 18 [2d Dept 2011]).
To satisfy the burden, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v. Noble, 73 A.D.3d at 206; Joyner-Pack v. Sykes, 54 A.D.3d 727, 729 [2d Dept 2008]; Koi Hou Chan v. Yeung, 66 A.D.3d 642 [2d Dept 2009]; Jones v. Ricciardelli, 40 A.D.3d 935 [2d Dept 2007]). If the expert's opinion is not based on facts in the record, the facts must be personally known to the expert and, in any event, the opinion of a defendant's expert should specify "in what way" the patient's treatment was proper and "elucidate the standard of care" (Ocasio-Gary v. Lawrence Hosp., 69 A.D.3d 403, 404 [1st Dept 2010]). Stated another way, the opinion of defendant's expert must "explain 'what defendant did and why'" (id., quoting Wasserman v. Carella, 307 A.D.2d 225, 226, [1st Dept 2003]). Furthermore, to satisfy his or her burden on a motion for summary judgment, a defendant must address and rebut specific allegations of malpractice set forth in the plaintiff's bill of particulars (see Wall v. Flushing Hosp. Med. Ctr., 78 A.D.3d 1043 [2d Dept 2010]; Grant v. Hudson Val. Hosp. Ctr., 55 A.D.3d 874 [2d Dept 2008]; Terranova v. Finklea, 45 A.D.3d 572 [2d Dept 2007]).
Once satisfied by the defendant, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit or affirmation attesting to a departure from accepted medical practice and opining that the defendant's acts or omissions were a competent producing cause of the plaintiff's injuries (see Roques v. Noble, 73 A.D.3d at 207; Landry v. Jakubowitz, 68 A.D.3d 728 [2d Dept 2009]; Luu v. Paskowski, 57 A.D.3d 856 [2d Dept 2008]).
Thus, to defeat a defendant's prima facie showing of entitlement to judgment as a matter of law, a plaintiff must produce expert testimony regarding specific acts of malpractice, and not just testimony that contains "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice" (Alvarez v. Prospect Hosp., 68 N.Y.2d at 325; see Frye v. Montefiore Med. Ctr., 70 A.D.3d at 24). In most instances, the opinion of a qualified expert that the plaintiff's injuries resulted from a deviation from relevant industry or medical standards is sufficient to preclude an award of summary judgment in a defendant's favor (see Murphy v. Conner, 84 N.Y.2d 969, 972 [1994]; Frye v. Montefiore Med. Ctr., 70 A.D.3d at 24).
In support of its motion for summary judgment, TCC submits the affirmation of Dr. Lawrence Reduto, a board-certified physician in Internal Medicine, with a subspecialty in Cardiovascular Disease. Dr. Reduto's affirmation describes Taylor's condition and the medical treatment rendered at the time of the fall from the Hoyer Lift on October 21, 2017, through the time of his death on October 22, 2017. Dr. Reduto opines that there was no evidence that the fall occurred because of negligence or malpractice on the part of TCC since Taylor, weighing over 300 pounds, fell while being transferred back to his bed by two CNAs via Hoyer Lift, in accordance with TCC's care plan. He also opines that the Hoyer Lift was not defective at the time of the fall based on his review of certain unspecified documents relating to the safety of the Hoyer Lift.
While Dr. Reduto, a cardiologist, states that he is familiar with the standards of care as they existed at the time of Taylor's fall, the Court finds that Dr. Reduto's opinion on this issue lacks a proper foundation since it fails to explain with specificity the nexus between the standard of care and TCC's care plan and is, therefore, conclusory. The case law is well-settled that where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Laughtman v. Long Island Jewish Val. Stream, 192 A.D.3d 677 [2d Dept 2021]); Korszun v. Winthrop Univ. Hosp., 172 A.D.3d 1343, [2d Dept 2019]); DiLorenzo v. Zaso, 148 A.D.3d 1111 [2d Dept 2017]). Likewise, Dr. Reduto's opinion that the Hoyer Lift was not defective, is based on documents that are not in proper evidentiary form, and, thus, have no probative value. "Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, the opinion should be given no probative force and is insufficient to withstand summary judgment" (Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]; see Frye v. Montefiore Med. Ctr., 70 A.D.3d at 24).
As to plaintiff's claim whether the medical care administered to Taylor by TCC was timely and appropriate subsequent to Taylor's fall, Dr. Reduto's affirmation states that "[i]t is ... my opinion that no time was wasted in assessing Taylor and then transporting him to Mount Sinai for a thorough medical assessment." Dr. Reduto indicates that immediately following the fall, Taylor was assessed by Dr. Eapen. He notes that TCC timely transported Taylor to Mount Sinai on October 21, 2017, and that Taylor's vital signs were within normal range during transport to the Emergency Room at Mount Sinai. He also notes that defendants MSHU cleared Taylor for transfer back to TCC, and that his vital signs recorded at approximately 12:35 a.m., were stable. When his condition took a turn for the worse upon his arrival at TCC around 1:36 a.m., Taylor was still under the care of EMS at TCC, who attempted to intubate Taylor without success. Dr. Reduto opines that "[a]ll the care provided by TCC was appropriate, timely, and specifically designed for him as an individual and was responsive to Taylor's needs." Regarding the decline in Taylor's medical condition, Dr. Reduto opines that contrary to plaintiff's contentions, a clinical impression of increased intracranial pressure secondary to head trauma is not supported by the records, [and] the chronology of events reflected in the medical records. Further, Dr. Reduto opines that Taylor's death was not proximately caused by the fall from the Hoyer Lift, and that Taylor sustained sudden cardiac death based on underlying cardiovascular disease, as noted in the autopsy report.
Accordingly, the Court finds that TCC has established its prima facie entitlement to summary judgment by demonstrating that plaintiff was timely diagnosed and treated after the fall while in the care of TCC, and that there was no departure from the standard of care. The Court also finds that based on Dr. Reduto's expert opinion, Taylor died as a result of a sudden cardiac event, and not head trauma as plaintiff claims. Dr. Reduto opines that during the time between Taylor's fall and his death, he had no signs or symptoms of an impending cardiac event, and that had the fall precipitated his sudden death, Taylor would have been short of breath or had unstable vital signs much earlier.
In opposition to TCC's motion, plaintiff submits the affidavit of a physician licensed to practice medicine in Colorado and board-certified in Internal Medicine. Plaintiff's expert avers that the affidavit "is submitted on the issue of causation only - whether the subject fall of decedent [Taylor] at the facilities of defendant TCC caused his injuries.. .including but not limited to the decedent's death."
Contrary to Dr. Reduto's opinion, plaintiff's expert opines that Taylor's death was caused by head trauma sustained from the fall, and that the cardiac event occurred after brain death. Plaintiff's expert opines that Dr. Reduto bases his opinion on the cause of Taylor's death on the autopsy report alone, without considering Taylor's documented clinical status throughout the evening of October 21, 2017, and early morning of October 22, 2017, and that upon consideration of all clinical factors, as well as the autopsy findings, brain death caused the cardiac arrhythmia and cardiac arrest. Further, plaintiff's expert opines that when such factors are considered, Taylor's clinical presentation and subsequent demise is consistent with increased intracranial pressure due to head trauma.
Both experts have provided affidavits of equal weight, supported by facts in the record as well as deposition testimony, addressing the essential allegations in the bill of particulars and setting forth their opinions with a reasonable degree of medical certainty (Roques v. Noble, 73 A.D.3d 204; see also Santiago v. Brandeis, 309 A.D.2d 621 [1st Dept 2003]). Thus, although defendant TCC has met its initial burden of establishing its prima facie entitlement to judgment as a matter of law, the affidavit of plaintiff's expert raises issues of fact as to whether the fall caused Taylor's alleged injuries and death, sufficient to rebut defendant's prima facie showing.
As to the MSHU defendants, in support of their motion for summary judgment, they submit the expert affirmation of Mark S. Silberman, M.D., a board-certified physician in Emergency Medicine, Critical Care Medicine, Pulmonary Medicine, and Internal Medicine. Dr. Silberman opines that the care rendered to Taylor by the MSHU defendants was at all times in accordance with good and accepted medical practice, and did not proximately cause any damages to Taylor.
In reviewing the medical records relating to Taylor's care and treatment at MSHU following his fall at TCC, Dr. Silberman notes that the initial physical examination of Taylor conducted by Newman showed that Taylor was usual baseline, alert, but disoriented. Newman also performed a neurological examination, including a cranial nerve examination, wherein Dr. Silberman ascertained that "detailed documentation of the neurological examination was not required in the absence of pertinent positive findings." Dr. Silberman further notes that Dr. Hu questioned Taylor as to the circumstances that brought him to the hospital; whether he was experiencing pain; whether he hit his head; whether he lost consciousness; and whether he had any other complaints besides the areas in which he complained of pain. Dr. Hu and Newman corroborated the events that occurred at TCC by speaking with Taylor's daughter. Dr. Hu performed a detailed neurological examination by evaluating Taylor's orientation and testing coordination, which indicated that he was able to follow commands. He examined Taylor's head for injuries and for tenderness. Accordingly, Dr. Silberman opines that plaintiff's allegation that an urgent head CT should have been ordered is without merit, since the determination as to "whether or not to perform a head CT is based on the judgment of the treating physician." Further, Dr. Silberman opines, with a reasonable degree of medical certainty, that in circumstances such as existed here, where the physical examination revealed no visible head injury; no head trauma was confirmed by Taylor's family; Taylor had no complaints of nausea, vomiting or head pain; and Taylor's mental status appeared to be at baseline, the standard of care does not require performance of a head CT.
Based on his review of the record in this matter, Dr. Silberman opines that the evaluations performed by Newman and Dr. Hu were appropriate and within the standard of care. Further, he opines that the standard of care supports discharge from the Emergency Room when a patient is in stable condition, and that in the instant case there was no reason for hospital admission since all appropriate testing, including x-rays, were performed to evaluate Taylor's condition, and no significant injuries were found. Further, Dr. Silberman opines that contrary to plaintiff's contentions, Taylor's blood pressure was stable throughout the duration of his presentation to Mt. Sinai, and as such, the decision to discharge Taylor was appropriate and within the standard of care. Dr. Silberman opines that Taylor's death was caused by an unpredictable, sudden cardiac event that could not have been detected during his earlier evaluation at Mount Sinai, and cites Taylor's stable condition upon discharge from Mount Sinai. He notes that it was not until Taylor's arrival at TCC that the first signs of distress were noted, with a change in his breathing pattern, increased blood pressure and flaccid extremities.
Based on the affirmation of Dr. Silberman, the MSHU defendants made a prima facie showing that the care and treatment rendered to Taylor did not depart from the standard of care and that the alleged departure was not a proximate cause of Taylor's death (Einach v. Lenox Hill Hosp., 160 A.D.3d 443, 443-444 [1st Dept 2018], quoting Anyie B. v. Bronx Lebanon Hosp., 128 A.D.3d 1 [1st Dept 2015] [internal quotation marks omitted]).
In opposition to the MSHU defendants' motion, plaintiff relies on the affidavit of the same physician, board-certified in Internal Medicine, who opined as to TCC's entitlement to summary judgment. Plaintiff's expert opines that defendants MSHU departed from good and accepted standards of medical care in the treatment rendered to Taylor on October 21, 2017 and October 22, 2017, by, inter alia, "failing to rule out whether the decedent suffered a head injury in the setting of a fall with unknown head involvement", as there was no documentation in the medical records of a thorough neurological examination of plaintiff having been performed. Plaintiff's expert also opines that while Dr. Hu and Newman did not find physical evidence of head trauma on examination, "head trauma cannot be ruled out even without physical evidence of such trauma if there is any chance that the patient struck his head." In reaching this opinion, plaintiff's expert points to the deposition testimony of Gina Gesse, a CNA who was present at the time of the fall, who stated that "his [plaintiff's] head [went] first" during the fall, and that "his face was on the floor." Plaintiff's expert notes that the Situation, Background, Assessment, Recommendation Communication Form ("SBAR"), which is part of Mount Sinai's medical record, indicates that Taylor was transferred to Mount Sinai "for further evaluation of possible intracranial pressure."
Further, it is plaintiff's expert opinion that defendants MSHU departed from good and accepted standards of medical care by failing to identify hypertension in a patient with baseline hypertension, and by failing to check routine blood tests, including hemoglobin, potassium and magnesium, in a known end-stage renal disease patient.
Plaintiff's expert notes that the pathology from the autopsy did not show a clear source of Taylor's demise. Plaintiff's expert is of the opinion, based upon a reasonable degree of medical certainty, that Taylor's relative hypertension supported a differential diagnosis that included increased intracranial pressure, which left untreated was the direct proximate cause of brain death due to head trauma. Plaintiff's expert also opines that brain death subsequently and inevitably caused Taylor's heart to stop. Further, plaintiff's expert opines that the departures were each the direct proximate cause of Taylor's alleged injuries and death.
Plaintiff's expert affidavit raises triable issues of fact rebutting defendants' prima facie showing as to whether Taylor was injured as a result of falling, whether the MSHU defendants departed from the standard of care, and whether Taylor's death was the proximate cause of said departure. The opinion testimony of the respective experts is detailed, factual and specific and is based on proper evidentiary foundation, presenting "a classic conflict between experts" - a blatant issue of fact- requiring denial of summary judgment (Peebles v. New York City Hous. Auth., 295 AD 2d 189, 191 [1st Dept 2002]).
As to the branch of the MSHU defendants' motion for summary judgment seeking dismissal of plaintiff's claim for lack of informed consent, plaintiff, in opposition, has failed to rebut MSHU's prima facie showing on the issue of lack of informed consent. The law is well settled that in order to establish a cause of action for the lack of informed consent, the plaintiff must prove that: 1) the person providing the treatment failed to disclose the reasonably foreseeable risks and alternatives to the procedure; 2) a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he had been fully informed; and 3) the lack of informed consent was a proximate cause of the injuries (see Public Health Law § 2805-d; Evart v. Park Ave. Chiropractic, P.C., 86 A.D.3d 442 [1st Dept 2011]; Messina v. Alan Matarasso, M.D., F.A.C.S., P.C., 284 A.D.2d 32 [1st Dept 2001]). Here, the record, together with Dr. Silberman's opinion that "any reasonable patient in a similar situation would have undergone the non-invasive treatment that was provided to Mr. Taylor" when undergoing emergency care, are sufficient to establish judgment as a matter of law as to the MSHU defendants on the issue of the lack of informed consent.
Based on the foregoing, it is hereby, ORDERED, that the motion of defendant TERENCE CARDINAL COOKE HEALTH CARE CENTER (Motion Seq. No. 01) is denied in its entirety; and it is further
ORDERED, that the motion of defendants THE MOUNT SINAI HOSPITAL and KEVIN HU, M.D. (Motion Seq. No. 02), is granted only to the extent that plaintiff's fourth cause of action based on lack of informed consent is dismissed. In all other respects, the motion is denied.
This constitutes the Decision and Order of the Court.