Opinion
105463/05.
May 4, 2009.
Decision and Order
Motion Sequence Numbers 004, 005, and 006 are consolidated for disposition. By these motions, defendants Long Beach Memorial Nursing Home, Inc., d/b/a Komanoff Center for Geriatric and Rehabilitative Medicine ("Komanoff"), Long Beach Medical Center ("LBMC"), and The New York and Presbyterian Hospital s/h/a New York Presbyterian Hospital ("NYPH"), respectively, move for summary judgment pursuant to C.P.L.R. Rule 3212; alternatively, Komanoff also moves to dismiss plaintiff's claim for punitive damages.
The causes of action brought against the defendants encompass allegations of negligence, medical malpractice, wrongful death, and violations of the Public Health Law, arising out of defendants' treatment of plaintiff's decedent, Robert E. Yakkey, after a fall caused him to fracture his shoulder. The moving defendants are all medical facilities where Mr. Yakkey received treatment following his fall. On December 21, 2002, Mr. Yakkey, who was 77 years old at the time, presented to South Nassau Communities Hospital ("SNCH") after fracturing his right humerus in a fall. He was admitted to SNCH by Dr. Leonard Ingber, his primary care physician. On December 26, 2002, Mr. Yakkey was transferred from SNCH to NYPH for shoulder surgery, because the surgery was deemed too complicated to perform at SNCH. He remained at NYPH for approximately one month after the surgery, and received physical and occupational therapy. On January 24, 2003, he was discharged from NYPH and transferred to Komanoff for rehabilitation. Between January 24, 2003, and his death on May 16, 2003, Mr. Yakkey was admitted to LBMC for treatment of acute issues on four occasions (March 12-20, 2003; April 6-11, 2003; April 16-24, 2003; and May 11-16, 2003), which will be discussed in greater detail, infra. He was always transferred back to Komanoff after each of the first three hospitalizations at LBMC. Mr. Yakkey died during the fourth admission to LBMC.
Plaintiff's complaint as against George Ascher and Tillie Ascher — purported owners of the property where Mr. Yakkey fell — was dismissed pursuant to a judgment entered on December 13, 2006.
Mr. Yakkey presented to SNCH with numerous underlying conditions which affected his treatment and recovery from the shoulder surgery. The patient's records from Dr. Ingber reflect that his past medical history included chronic obstructive pulmonary disease ("COPD"), prostate cancer, gallstones, colonic polyps, sigmoid diverticula, hypothyroid, alcoholic cirrhosis, and alcohol withdrawal seizures. He was taking Dilantin, Synthroid, and Aldactone. The discharge summary prepared by Dr. Ingber upon Mr. Yakkey's transfer from SNCH to NYPH in December 2002 reflects that Mr. Yakkey also had anemia, and coagulopathy secondary to the anemia; he was given vitamin K to try to correct the coagulopathy, but given his history of cirrhosis, Dr. Ingber believed that Mr. Yakkey would need fresh frozen plasma prior to the shoulder surgery to try to correct the coagulopathy. At SNCH, Mr. Yakkey also had leukocytosis; dehydration, causing a rise in his blood urea nitrogen levels; and, elevated ammonia levels, although not clinically encephalopathic.
Upon admission to NYPH, the above conditions were noted. Mr. Yakkey's white blood cell count, platelets, and baseline potassium were elevated. His medications were Dilantin for seizures, Synthroid for hypothyroidism, Aldactone for fluid retention, Protonix for gastroesophageal reflux, and Albuterol and Flovent for COPD. After the surgery on December 26, 2002, Mr. Yakkey was highly agitated and had to be physically restrained so as not to interfere with his medical devices. His doctors believed him to be suffering from dementia or delirium. He was at an increased risk for hepatic encephalopathy, or brain injury due to the inability of his liver to remove ammonia; he was prescribed Lactulose to help draw the ammonia from his blood. He was prescribed Haldol for the agitation. He was at times a difficult patient and sometimes refused to cooperate with treatment, including taking his medications. Mr. Yakkey was transferred from the orthopedic service to the medical floor to manage his underlying medical issues. His mental status improved with the administration of Haldol and Lactulose, and he returned to baseline mental status by December 29, 2002. On January 7, 2003, he was found to be suffering from a bacterial infection of the intestine, Clostridium difficile ("C. diff."); contact precautions were put in place and antibiotics were prescribed. He experienced incontinence of diarrhea as a result of the C. diff., which in turn caused him to have a rash on his groin and inner thigh on January 17, 2003. Mycolog II cream was applied to the area. By January 20, the bacterial infection had resolved. Although attempts at physical therapy were sometimes successful, they were also sometimes successful, they were also sometimes thwarted by Mr. Yakkey's various medical conditions, either due to his agitated mental state, his refusal to participate or cooperate, or discomfort due to his co-morbid conditions.
Many of the same difficulties plagued Mr. Yakkey's rehabilitation at Komanoff. He had recurrent C. diff. infections, which became antibiotic-resistant; his cirrhosis was determined to be very advanced; he was diagnosed with cellulitis of the bilateral lower extremities; and, his overall condition declined. Progress in his physical and occupational therapy waxed and waned in connection with his health issues. His progress in both areas plateaued at the end of February 2003, with some significant improvement.
On March 12, 2003, he was admitted to LBMC by Mungala Reddy, M.D., for abnormal labs and blood in his urine. He was experiencing severe health complications due to the C. diff. infection and cirrhosis. He was diagnosed with nephrosclerosis, complicated with hepatic cirrhosis and possible cardiomyopathy, indicating kidney, liver, and heart failure. On March 20, Mr. Yakkey was transferred back to Komanoff with a diagnosis of acute renal failure, cirrhosis, prostate cancer, COPD, and seizure disorder. He again began a course of physical and occupational therapy and made some progress, and was discharged from both within the first week of April. On April 6, 2003, Mr. Yakkey was noted to be markedly confused and was sent to LBMC's emergency room for treatment. He was diagnosed with advanced cirrhosis of the liver and chronic renal failure; upon examination, he had body edema, ascites, venostasis edema and dermatitis. His presentation was consistent with hepatic encephalopathy and possible sepsis. A reduced-protein diet was recommended in order to relieve the stress to his liver and kidneys. He had a compromised vascular system and cerebral atrophy. On April 11, he was transferred back to Komanoff. He was bowel and bladder incontinent. On April 16, he was noted to be extremely agitated and he struck his hand on the side rail of his bed, sustaining a skin tear; he was readmitted to LBMC for hepatic encephalopathy and delirium. Upon admission, he was noted to have mental status changes due to hepatic encephalopathy, elevated ammonia levels, and diarrhea with C. diff. Mr. Yakkey's family signed a "Do Not Resuscitate" order. His prognosis was noted to be very poor. On April 24, Mr. Yakkey was transferred back to Komanoff from LBMC. Upon his admission, it was noted that he had decubitus ulcers present on his buttocks. Attempts at physical therapy were made, but Mr. Yakkey repeatedly refused to participate. His medical status declined. On May 11, 2003, Mr. Yakkey was admitted to LBMC due to fever; diarrhea; decubitus ulcers and inflamed scrotal area; cramps; loose, foul-smelling stools; and, refusal to eat. He succumbed to hepatic encephalopathy due to cirrhosis of the liver, with COPD complications, on May 16.
Plaintiff alleges that defendant medical facilities negligently allowed decubitus ulcers to develop and failed to properly treat the decubitus ulcers once they manifested, and that this negligence contributed to Mr. Yakkey's death. Specifically, as to NYPH, plaintiff alleges that NYPH physical and occupational therapists failed and/or refused to provide physical therapy to Mr. Yakkey, causing him to develop hepatic encephalopathy, C. diff. infection, ecchymotic areas, excoriated inner thighs, and edematous lower extremities, leading to a "downward spiral" in Mr. Yakkey's health, and ultimately leading to his death on May 16, 2003. As to Komanoff, plaintiff alleges that Komanoff provided improper and negligent care, which consisted of a failure to provide competent physical and occupational therapy to Mr. Yakkey, and failure to clean his bed pans and/or diapers, thereby allowing him to develop "serious and severe bed sores" which purportedly became infected, resulting in decedent's death. Plaintiff's allegations against Komanoff include, inter alia, claims that Komanoff aggravated excoriated bed sores, permitted pressure sores to develop, aggravated hepatic encephalopathy, caused an onset of sepsis, and failed to maintain adequate nutrition. Plaintiff also asserts a cause of action against Komanoff under Public Health Law § 2108-d. As against LBMC, plaintiff alleges that it provided improper and negligent care, including failing to perform required physical therapy, causing Mr. Yakkey to sustain injuries including a rash to the groin area, bed sores, sepsis, and dehydration, proximately leading to his death.
At the outset, it must be noted that plaintiffs inartful pleadings do not definitively distinguish whether plaintiff's claims against the defendant medical facilities are claims for medical malpractice or ordinary negligence. See generally Miller v. Albany Med. Ctr. Hosp., 95 A.D.2d 977 (3d Dep't 1983).
Although, as a general matter, '[w]hen the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence', a personal injury action against a medical practitioner or medical facility may also be based on negligence principles. Negligence principles are applicable where 'the alleged negligent act may be readily determined by the trier of facts based on common knowledge.'
Osborne v. Rivington House, 19 Misc. 3d 1132A (Table) (Sup.Ct. N.Y. Co. 2008) (internal citations omitted). Some of the allegations with respect to nutrition, hydration, hygiene, sepsis, and bed sores could be the result of actions by facility staff members and not medical professionals, and thus would sound in ordinary negligence. See Bush v. Cobble Hill Health Ctr, 17 Misc. 3d 1135 (A) (Table) (Sup. Ct. Bronx Co. 2007). However, plaintiff's allegations with respect to implementing physical therapy, aggravating medical conditions, and treating recurring infections could also be related to the assessment of Mr. Yakkey's condition and degree of supervision, which are claims that sound in medical malpractice. See Pacio v. Franklin Hosp., N.Y.L.J. June 19, 2008, at 29, col. 1 (Sup.Ct. Nassau Co. 2008). Defendants' motions for summary judgment are predicated on the medical malpractice standard only. Given that the pleadings assert claims sounding in ordinary negligence, as well as medical malpractice, these motions shall be treated as motions for partial summary judgment only.
References to "negligence" by defendants' experts in their affirmations are insufficient to support a motion for summary judgment under the negligence standard, because these references are fleeting and do not substantively support any arguments for summary judgment under the standard for ordinary negligence.
Medical Malpractice Claims
The party moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant was negligent. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). "[B]are allegations which do not refute the specific factual allegations of medical malpractice in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law."Grant v. Hudson Val. Hosp. Ctr., 55 A.D.3d 874 (2d Dep't 2008). Once the movant makes a prima facie showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez, supra at 324 (citation omitted). Specifically, this requires, in a medical malpractice action, that a plaintiff opposing a summary judgment motion
must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact. . . . General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion.
Id. at 324-25 (citations omitted).
NYPH
In support of its motion for summary judgment, NYPH submits an affirmation from Anthony J. Lechich, M.D., a physician duly licensed to practice medicine in the State of New York and board certified in internal medicine with a subspeciality in geriatrics. He reviewed Mr. Yakkey's medical records, the depositions of Mr. Yakkey's son and daughter-in-law, and plaintiff's bill of particulars as to NYPH. Dr. Lechich opines that plaintiff's allegations that physical and occupational therapists at NYPH failed or refused to provide therapy to Mr. Yakkey, causing him to develop the medical conditions that culminated in his death, are without merit. He opines, to a reasonable degree of medical certainty, that the care and treatment provided at NYPH did not proximately cause or contribute to the decline in Mr. Yakkey's condition or his death. Dr. Lechich sets forth that the records indicate that physical therapy services were rendered to Mr. Yakkey on an almost daily basis, but that on several occasions, Mr. Yakkey refused to get out of bed and ambulate, despite appropriate efforts to cajole him into participating. In-bed physical therapy exercises were then provided as an accommodation. Dr. Lechich opines that NYPH provided proper and appropriate physical therapy, and that the physical therapy rendered did not cause or contribute to Mr. Yakkey's decline in health.
Dr. Lechich maintains that NYPH did not cause Mr. Yakkey to develop hepatic encephalopathy, C. diff. infection, excoriated inner thighs, decubitus ulcers, ecchymotic areas, and edematous lower extremities, leading to a "downward spiral" in his health culminating in his death. He opines that Mr. Yakkey's death was the natural result of his various co-morbidities, which included cirrhosis, pulmonary compromise, hypothyroidism, fluid and electrolyte difficulties, coagulopathy, vitamin D deficiency, hypersplenism, portal hypertension, anemia, cardiomyopathy, and his advanced age of 77 years. He notes that Mr. Yakkey was treated for these and other serious conditions over the thirteen years of records from his primary treater, Dr. Ingber. Based on Mr. Yakkey's history, Dr. Lechich opines that Mr. Yakkey's development of post-operative hepatic encephalopathy was a "definite risk" and in no way indicative of negligent treatment by NYPH. As far back as 1990, Dr. Ingber's records indicate that Mr. Yakkey had an enlarged liver and spleen, likely due to alcohol abuse. In 2000, Mr. Yakkey was diagnosed with cirrhosis, a chronic progressive liver disease with loss of liver function. Dr. Lechich states that one of the liver's functions is to synthesize coagulation factors, and that severe liver disease decreases the production of these coagulation factors. Liver disease also leads to malabsorption of vitamin K, which is also involved in coagulation. The fact that while at SNCH, Mr. Yakkey had serious coagulopathy, which failed to correct with vitamin K, indicates that the liver damage was extensive. With severe liver damage, toxic substances normally removed by the liver accumulate in the blood and impair the function of brain cells, causing hepatic encephalopathy, which is manifested by impaired cognition and delirium. Given this condition, and his other metabolic imbalances, Dr. Lechich opines that the development of hepatic encephalopathy was practically unavoidable, and that even a healthy geriatric patient undergoing orthopedic surgery would have a 20-40% risk of developing persistent post-operative delirium due to metabolic disturbance precipitated by an invasive procedure and medication.
Dr. Lechich opines that NYPH's treatment of Mr. Yakkey's post-operative delirium was within the standard of care: a CT scan was appropriately performed and indicated no acute cause; medicine, psychiatry, and neurology consults were appropriately ordered; the medications Haldol and Ativan were correctly and appropriately administered; and, Dilantin toxicity tests were appropriately given to ensure that he was not delirious as a result of too much Dilantin. Mr. Yakkey was appropriately prescribed Lactulose to treat the hepatic encephalopathy, and he returned to baseline mental status by December 29, 2002.
Regarding the C. diff. infection, Dr. Lechich opines that NYPH rendered treatment within the standards of good and accepted medical care, and did not cause Mr. Yakkey to develop the infection. According to Dr. Lechich, C. diff. is the most common hospital-acquired infection, and Mr. Yakkey was at an especially high risk because of his age, number of co-morbidities, and liver disease, which can lead to immune dysfunction. NYPH appropriately diagnosed and treated the infection by administering a fourteen-day course of Flagyl, an antibiotic. After his discharge from NYPH, Mr. Yakkey developed a relapse of the infection; Dr. Lechich sets forth that 20% of successfully treated patients relapse, and that Mr. Yakkey was at an increased risk of relapse. Therefore, he opines that Mr. Yakkey's relapse was not attributable to any negligence by NYPH.
Similarly, as to the rash that Mr. Yakkey developed on his groin and inner thigh, Dr. Lechich opines that this rash was due to contact with fecal matter, and that appropriate nursing care was timely and properly provided, so that by the time of Mr. Yakkey's discharge, the redness had diminished. Furthermore, Dr. Lechich sets forth that the rash was in no way related to Mr. Yakkey's subsequent development of decubitus ulcers. He sets forth that bed sores do not form on the groin or inner thigh, but over areas with a bony prominence, such as the spine, coccyx, hips, heels, or elbows. He avers that there is no documentation of decubitus ulcers anywhere in the NYPH nursing notes, and its nursing care checklists, completed at every shift change, do not indicate any skin breakdown related to ulcers. Additionally, the Komanoff intake records do not note the presence of decubitus ulcers. Therefore, he opines that it does not appear that Mr. Yakkey ever developed bed sores at NYPH. Dr. Lechich contends that NYPH took appropriate measures to prevent bedsores, such as turning and repositioning every two hours and placing Mr. Yakkey on an egg crate mattress.
Dr. Lechich attributes the ecchymoses, or bruises, to Mr. Yakkey's fall and coagulopathy due to liver failure, not to any negligence by NYPH. Furthermore, these bruises did not contribute to or exacerbate Mr. Yakkey's decline and eventual death. Finally, Dr. Lechich finds unsupportable plaintiff's allegation regarding edematous lower extremities. He sets forth that Mr. Yakkey was at an increased risk for volume overload and dependent edema due to congestive heart failure and liver disease, both of which can cause water retention. Dr. Ingber's records note edematous extremities as far back as 1990. NYPH used appropriate and proper measures to regulate Mr. Yakkey's fluids, such as judicious use of hydration. While Mr. Yakkey did develop 1+ edema in his lower extremities, progressing to 2+ edema by January 22, 2003, Dr. Lechich opines that the development of edema was caused by liver damage and congestive heart failure, and did not arise due to any negligence by NYPH, nor did the edema cause, contribute to, or exacerbate Mr. Yakkey's decline and eventual death.
Dr. Lechich attributes Mr. Yakkey's decline in health and eventual death to serious, long-term conditions pre-existing Mr. Yakkey's admission to NYPH. He attributes Mr. Yakkey's death to the natural result of his advanced age and various co-morbidities, which was in no way related to or caused by the treatment and care he received at NYPH. Therefore, Dr. Lechich opines that NYPH treated Mr. Yakkey correctly, properly, appropriately, adequately, and in accordance with good and accepted medical practice. Dr. Lechich sets forth that there were no deviations, departures, or breaches of duties on the part of NYPH. Additionally, the care and treatment rendered by NYPH was not a proximate cause of Mr. Yakkey's subsequent decline in condition or death.
NYPH has demonstrated its prima facie entitlement to summary judgment as to the claim against it sounding in medical malpractice. It has provided a highly-detailed affirmation from a qualified expert who addresses each of plaintiff's allegations and opines, to a reasonable degree of medical certainty, that there were no departures from the standard of care, and that no acts or omissions proximately caused Mr. Yakkey's decline and death. NYPH has demonstrated an absence of triable issues of fact as to whether it was negligent under the medical malpractice standard. It remains for plaintiff to rebut this showing with evidence demonstrating a material issue of fact.
Komanoff
In support of its motion for summary judgment, Komanoff submits the affirmation of Luigi M. Capobianco, M.D., a physician duly licensed to practice medicine in the State of New York and board certified in family practice with a subspeciality in geriatric medicine, and board certified in wound care by the National Alliance of Wound Care. He reviewed the allegations and all relevant medical records and testimony. Dr. Capobianco opines, within a reasonable degree of medical certainty, that there were no departures in the care and treatment rendered by Komanoff that proximately caused or contributed to Mr. Yakkey's alleged injuries and death. Dr. Capobianco sets forth that the record reveals that Mr. Yakkey did not develop or aggravate any pre-existing decubitus ulcers or rashes; did not aggravate hepatic encephalopathy; nor, become septic and or die as a result of any departures by Komanoff or as a result of Komanoff's alleged failure to conform to the applicable regulations governing nursing homes, i.e., 10 N.Y.C.R.R § 415.12(c)(1) and (2), which plaintiff claims Komanoff violated. Mr. Yakkey's decline and death resulted from his multiple co-morbidities, including alcohol-induced end-stage liver disease, Laennec's cirrhosis and resulting hepatic portal hypertension, hepatic encephalopathy, chronic renal failure, and compromised immune system. Dr. Capobianco opines that Mr. Yakkey did not develop bed sores at Komanoff, nor did Komanoff contribute to the worsening of any sores, as the condition of the ulcers remained essentially unchanged during the two-and-one-half week period he resided at Komanoff with stage II bilateral ulcers on his buttocks, measuring 1 cm. by 1 cm. Likewise, Mr. Yakkey did not become septic as a result of any wrongdoing by Komanoff. Finally, Dr. Capobianco opines that the physical and occupational therapy provided to Mr. Yakkey conformed to accepted standards of care and did not cause nor contribute to any injuries or damages.
Dr. Capobianco's affirmation echos Dr. Lechich's affirmation in recounting Mr. Yakkey's chronicle of illnesses in Dr. Ingber's records. He recounts Mr. Yakkey's compromised recovery at NYPH due to his co-morbidities, thrombocytosis, anemia, hepatic encephalopathy, and his refusal to participate in physical therapy. Dr. Capobianco notes that the NYPH discharge summary revealed intact skin with lower extremity edema and a rash on the right calf and thigh. Komanoff treated the groin rash appropriately with Mycolog cream, which was discontinued due to burning and itching to Mr. Yakkey's penis and anus. No decubitus ulcers were noted upon admission. Mr. Yakkey presented with C. diff., and was treated with Flagyl. Measures were instituted to prevent skin breakdown, including lotion; multivitamin with folate; specialized mattress; and, turning and positioning every two to three hours. He was monitored by Dr. Munagala Reddy, a private attending physician. Mr. Yakkey's stay at Komanoff was marked by appropriate treatment for all of the pre-existing conditions affecting his recovery, appropriate physical and occupational therapy regimens, subspeciality consultations when necessary, and hospitalization at LBMC for acute serious conditions, all of which Dr. Capobianco recounts in great detail. On April 24, 2003, Mr. Yakkey was re-admitted to Komanoff from LBMC with bilateral stage II decubitus ulcers on his buttocks. Komanoff treated these lesions with saline; application of a Comfeel patch; and, Mycolog cream for redness. The lesions were treated and monitored by the staff daily, and assessed and documented on wound care rounds weekly. Nursing notes reflect that the skin tears were not infected and healing. He was seen by a dietician, who noted that he needed more protein to promote the healing of the bed sores, but that in light of his hepatic encephalopathy, such an increase was contraindicated, as such would result in increased ammonia levels. Mr. Yakkey was maintained on antibiotics for the C. diff. infection. He was provided with physical therapy, which occurred five times per week for thirty minutes, if and when Mr. Yakkey agreed to participate; he was discharged from physical therapy after repeatedly refusing to participate.
Dr. Capobianco opines that Komanoff did not contribute to the development and worsening of Mr. Yakkey's pressure sores. He sets forth that the record is devoid of any evidence of wrongdoing by Komanoff that may have caused or contributed to the worsening of these small, relatively minor skin lesions on Mr. Yakkey's buttocks that were not present until his final admission to Komanoff, on April 24, 2003, when he was readmitted from LBMC with stage II pressure sores on his buttocks. He maintains that plaintiff's allegations that Mr. Yakkey was not provided with adequate nutrition are without merit. The lesions never changed in size or worsened in stage. As such, it does not appear to Dr. Capobianco that the ulcers deteriorated during the roughly two-and-one-half week period that Mr. Yakkey remained at Komanoff, notwithstanding the rapid decline in his overall medical condition that occurred during this time period. Dr. Capobianco opines that Komanoff did not aggravate decedent's bruises or excoriated areas, which were present on his initial admission; Komanoff implemented a comprehensive care plan to monitor Mr. Yakkey's skin integrity and prevention of skin breakdown was implemented. Dr. Capobianco submits that Mr. Yakkey's multitude of co-morbidities affected the ability of his relatively minor bed sores to heal, but he claims that the sores did not increase or change, a fact which suggests that Mr. Yakkey was receiving good care regarding those lesions. Finally, Dr. Capobianco opines that Mr. Yakkey did not die of sepsis secondary to infected decubitus ulcers, as alleged by plaintiff. He sets forth that the record is devoid of any evidence that Mr. Yakkey's small, stage II, hospital acquired ulcers ever became infected or caused him to become septic; rather, the record reveals that Mr. Yakkey died from hepatic encephalopathy that was secondary to Laennec's cirrhosis of the liver.
Dr. Capobianco echos NYPH's expert, Dr. Lechich, in that Dr. Capobianco opines that Komanoff did not aggravate Mr. Yakkey's hepatic encephalopathy, which resulted from Mr. Yakkey's pre-existing condition of cirrhosis. In order to treat the encephalopathy, Mr. Yakkey's protein levels were restricted; the damage to the liver was self-inflicted by Mr. Yakkey's many years of alcohol abuse, and not by any deficiencies in the care by Komanoff. He opines that the liver damage was done before Mr. Yakkey ever entered Komanoff, was irreversible, and would eventually contribute to his death, which unfortunately, it did.
Finally, Dr. Capobianco opines that plaintiff's allegations that Komanoff negligently failed or refused to provide Mr. Yakkey with physical or occupational therapy are without merit. Komanoff provided therapy during each of Mr. Yakkey's four admissions, and was successful at various times, to varying degrees, in improving his ability to transfer, move himself in bed, maintain balance, and ambulate. Mr. Yakkey was appropriately discharged from the therapies only after it was determined that he had reached the maximum benefits from the therapy, with instructions to continue with nursing rehabilitation. Mr. Yakkey's periodic refusal to participate in therapy was within his right as a nursing home resident, and was not due to any malfeasance on Komanoff's part. In any event, Dr. Capobianco opines that Mr. Yakkey's decline in health was secondary to his multiple co-morbidities, and his participation or lack thereof in the prescribed therapy sessions did not cause or contribute to that decline, nor to his death.
Komanoff has demonstrated its prima facie entitlement to summary judgment as to the claim against it sounding in medical malpractice. It has provided a highly-detailed affirmation from a qualified expert who addresses each of plaintiffs allegations and opines, to a reasonable degree of medical certainty, that there were no departures from the standard of care, and that no acts or omissions by Komanoff proximately caused Mr. Yakkey's decline and death. Komanoff has demonstrated an absence of triable issues of fact as to whether it was negligent under the medical malpractice standard, which plaintiff must rebut by demonstrating a material issue of fact.
LBMC
In support of LBMC's motion for summary judgment, LBMC notes that Mr. Yakkey was admitted to LBMC on four separate occasions, each of which was precipitated by one or more critical medical conditions. LBMC avers that plaintiff has not alleged any medical malpractice claims against LBMC as they relate to the treatment of Mr. Yakkey's critical medical conditions, and that there are only vague, unspecified allegations of medical malpractice regarding LBMC's failure to provide physical therapy. LBMC states that it is not the hospital staff's function to issue orders for the course of medical and physical therapy. LBMC also points out that on each occasion that Mr. Yakkey was admitted, he was admitted under the care of his private physician, Mungala Reddy, M.D., who is not an employee of LBMC. As plaintiff has not pled a claim for vicarious liability, LBMC argues that it cannot be held liable for the failure to make or carry out either an order issued or medical decision made by a private physician.
In support if its motion, LBMC provides an affirmation from Poonam Alaigh, M.D., a physician licensed to practice medicine in the State of New York and board certified in internal medicine. Dr. Alaigh reviewed plaintiff's allegations in the verified bill of particulars, the transcripts of deposition testimony, and Mr. Yakkey's medical records. She sets forth the reasons for each of Mr. Yakkey's admissions to LBMC. On March 12, 2003, he was admitted with dehydration, electrolyte imbalance, and blood in his urine, and was found to have advanced cirrhosis, anasarca, and significant edema of the lower extremities. He required treatment for multiple medical conditions, including metabolic derangement with C. diff. colitis, acute rental failure, dehydration, electrolyte imbalance, infection, cellulitis, urinary tract infection, and upper GI bleed. Dr. Alaigh opines that appropriate care was rendered based on Mr. Yakkey's overall medical condition and physician care plan, and he was discharged to Komanoff on March 20. He was next admitted to LBMC on April 6, 2003, with altered mental status, sepsis, hepatic encephalopathy, and fluid overload. Mr. Yakkey's activity level was minimal, due to respiratory distress and acute medical conditions, which precluded him from continuing physical therapy. LBMC stabilized him, and discharged him back to Komanoff on April 11. On April 16, 2003 — the third admission to LBMC — Mr. Yakkey presented with acute encephalopathy and delirium; he was medically unstable to continue physical therapy, but upon improvement of his mental condition, he was discharged to Komanoff on April 24. On his final admission to LBMC on May 11, 2003, Mr. Yakkey presented with complaints of fever, diarrhea, decubitus ulcers, and an inflamed scrotal area with edema of the penis and scrotum. Dr. Alaigh sets forth that Mr. Yakkey quickly deteriorated and died on May 16, 2003, due to hepatic encephalopathy due to cirrhosis of the liver, with COPD as a contributing factor.
Dr. Alaigh notes that on each occasion, Mr. Yakkey was admitted to LBMC under the care and supervision of Dr. Reddy, a private physician, who saw Mr. Yakkey and wrote progress notes and orders in the chart. Dr. Alaigh contends that these orders were appropriately carried out by nursing home staff and other hospital personnel. She sets forth that it is clear that each of Mr. Yakkey's admissions to LBMC was for treatment and stabilization of various critical medical conditions. While the healthcare providers made every effort to control Mr. Yakkey's deteriorating skin condition, Dr. Alaigh asserts that these conditions were secondary to treating Mr. Yakkey's chief complaints upon each admission. She notes that during every hospitalization at LBMC, once Mr. Yakkey was stabilized, he was alert, oriented, and able to make his needs known; had good oral intake; and, was therefore discharged back to Komanoff once it was appropriate. Dr. Alaigh maintains that while physical therapy was suspended upon each admission to LBMC, the suspension was warranted because of Mr. Yakkey's underlying critical illnesses; even had therapy been provided, she states that it would not have impacted the clinical course or outcome. She opines that Mr. Yakkey's death was in no way the result of any negligence by LBMC; that the care and treatment rendered by the staff at LBMC was at all times within acceptable standards of medical care; and, that the care and treatment by LBMC was in no way a cause of the injuries which plaintiff alleges. Like the other defendants, LBMC has also demonstrated a prima facie showing of entitlement to judgment as a matter of law as to the claim against it sounding in medical malpractice, thereby shifting the burden to plaintiff to rebut that showing.
Plaintiff's Opposition
In opposition to the three summary judgment motions, plaintiff argues by counsel's affirmation that if plaintiff "proves the existence of decubitus ulcers and nothing else, plaintiff has still set forth viable causes of action against each of the various defendants." As to NYPH, plaintiff argues that Mr. Yakkey's son testified to the development of sores during Mr. Yakkey's hospitalization there; but, a review of Mr. Yakkey's son's testimony indicates only the presence of a rash. As to Komanoff, plaintiff argues that several complaints were registered regarding Komanoff's failure to clean Mr. Yakkey's soiled diapers, specifically, complaints concerning the development of rash and sores as a direct result of this failure. Further, plaintiff claims that Mr. Yakkey was left in an unsanitary condition at Komanoff as a result of an ant infestation in his room. Plaintiff sets forth that on January 24, 2003, upon his admission to Komanoff, both of his inner thighs were red and excoriated and he was evaluated as a "high risk" for pressure ulcers. Komanoff's Nursing Assessment records indicate that he was admitted with no pressure ulcers, but that he had a history of stage II pressure ulcers. The Patient Review Instrument ("PRI") prepared by a NYPH staff member upon Mr. Yakkey's transfer to Komanoff indicates that Mr. Yakkey had a stage II pressure ulcer; a nurse, Mary Quinn, who was deposed on behalf of Komanoff, acknowledged the discrepancy between the Nursing Assessment records and the PRI, but could not explain it. By January 27, he was experiencing loose stools and requested to remain in bed; by January 30, entries reveal that Mr. Yakkey complained of burning and itching to his penis, groin and anus; on February 4, an entry documents rash to the groin and buttocks; and, on March 2, progress records reveal excoriation between the toes on both feet, and a rash on his groin, thighs, scrotum, and buttocks.
In support of plaintiff's opposition, plaintiff annexes the affirmation of Samuel H. Kelman, D.O., C.P.M.R., a physician duly licensed to practice medicine in the State of New York, and board certified in physical medicine and rehabilitation. Dr. Kelman sets forth that he reviewed the various summary judgment motions and deposition testimony. He begins by summarizing information that he presented in May 1990 at St. Vincent's Hospital concerning the non-surgical approach and prevention of decubitus ulcers, in general, including the definition of a decubitus ulcer; how the ulcers form and progress; where the ulcers usually develop (tissue over bony structures); and, prevention protocol, including protective padding and maintaining hydration, nutrition, and hygiene. Dr. Kelman notes that "there are numerous entries in Mr. Yakkey's deposition which indicate that his adult diapers were continually and not properly cleaned." He also points out an entry in the chart of the physical therapist at NYPH where Mr. Yakkey complained that his backside was bothering him. Dr. Kelman describes treatment protocol, in general, once decubitus ulcers develop, and sets forth that "[g]iven Mr. Yakkey's various co-morbidity problems . . . it became increasingly important in Mr. Yakkey's case that he remain ambulatory and that his diapers remained clean and that he was otherwise kept in a sanitary environment." He opines that the deposition testimony from Mr. Yakkey's son "constitutes sufficient evidence to establish that appropriate prevention and/[or] treatment measures were not taken throughout Mr. Yakkey's care at each of the respective defendant institutions." Dr. Kelman contends that appropriate prevention was not evidenced in Mr. Yakkey's charts, "given that often times many paralyzed or terminal individuals with very poor nutrition can remain free of decubitus ulcers with good appropriate patient care such as constantly repositioning the patient, keeping the patient's diapers clean and encouraging ambulatory therapy, which if appropriately conducted would prevent the onset of decubitus." Plaintiff's expert concludes by setting forth,
Although plaintiff's expert is named as Samuel H. Kellman, Komanoff's reply papers to this motion point out that plaintiff's submissions misspell this expert's name, as revealed by a search of the New York State Physician Profile website, www.nydoctorprofile.com, annexed to Komanoff's reply papers.
within a reasonable degree of medical certainty that had Mr. Yakkey been given more appropriate care with regard to decubitus prevention measures, specifically keeping his diapers sanitary and clean, positioning him appropriately, notwithstanding the use of special mattresses, and being appropriately attended to by nursing personnel, he would not have developed decubitus ulcers. Although I cannot state that given his various co morbidity problems, the development of the stage 2 decubitus ulcers contributed to his ultimate demise, it must be noted that the excoriated sores noted to his anus and scrotum together with decubitus on various parts of his lower extremities constitutes painful conditions which easily could have been prevented and certainly did not help his situation.
Nevertheless, the existence of decubitus ulcers in and of itself constitutes neglect on the part of the healthcare providers as these sores are preventable in nearly all cases and certainly in Mr. Yakkey's case based on my review of the charts and records in this case.
(Emphasis added).
Plaintiff's submissions are insufficient to defeat summary judgment as to the claims for medical malpractice. Plaintiff alleges numerous and separate departures as against the three defendant medical facilities. However, plaintiff's expert only generally addresses the allegation that defendants permitted Mr. Yakkey's decubitus ulcers to develop and/or worsen, without opining as to the specific alleged departures raised in the pleadings. Dr. Kelman relies on information he purportedly prepared for a presentation almost two decades ago, but fails to set forth his familiarity with current standards of care in preventing and treating decubitus ulcers; indeed, he fails to set forth, apart from generalized statements that appropriate care was not provided, any applicable standards of care whatsoever. Assuming, arguendo, that a proper foundation has been laid for Dr. Kelman's opinions, the remainder of his affirmation is conclusory, highly speculative, and fails to differentiate between the three facilities, which treated Mr. Yakkey at different times. See Peters v. Goldner, 50 A.D.3d 350, 352 (1st Dep't 2008). Dr. Kelman fails to address the highly detailed affidavits of each of the moving defendants. See Browder v. N.Y.C. Health Hosps. Corp., 37 A.D.3d 375, 376 (1st Dep't 2007). His references to the medical records are to unspecified entries, and he relies on the anecdotal testimony of Mr. Yakkey's son as evidence that "appropriate prevention and/[or] treatment measures were not taken throughout Mr. Yakkey's care at each of the respective defendant institutions." He opines that it was important to keep Mr. Yakkey ambulatory, but does not address the efforts each of the defendants took in order to do so. He admits that he cannot opine that Mr. Yakkey's decubitus ulcers contributed to his death. Dr. Kelman sets forth that decubitus ulcers are preventable in nearly all cases (emphasis added), and on that basis, declares that decubitus ulcers in and of themselves constitute negligence; but, he does not address plaintiff's various co-morbidities as they related to an increased risk for decubitus ulcers nor the measures that the medical facilities did take to prevent and treat the ulcers. As such, defendants' motions, with respect to summary judgment on the claims against them sounding in medical malpractice, are granted.
Wrongful Death Claims
Defendants demonstrated their prima facie entitlement to summary judgment on the wrongful death allegations by their expert affidavits, wherein their experts lay a proper foundation and opine that Mr. Yakkey's death was not proximately caused by any alleged wrongful conduct of defendants; rather, defendants made a showing that Mr. Yakkey died from his underlying medical conditions. Anzolone v. Long Is. Care Ctr., Inc., 26 A.D.3d 449, 451 (2d Dep't 2006). Plaintiff made no effort to refute this showing; in fact, plaintiff's expert Dr. Kelman admits that he cannot opine that Mr. Yakkey's decubitus ulcers contributed to his death, given his various co-morbidities. See p. 21, supra. Plaintiff's submissions are insufficient to defeat summary judgment as to the claims for wrongful death.
Statutory Cause of Action
As set forth in Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 A.D.2d 178, 179 (1st Dep't 2002),
[t]he statutory basis of liability [under Article 28 of the Public Health Law] 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, subject to the defense that the 'facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient.'
Plaintiff's claims against Komanoff under Public Health Law § 2801-d are predicated on violations of Public Health Law § 2803-c(3)(e), specifically, violations of 10 N.Y.C.R.R. § 415.12(c)(1)-(2), which set forth that a residential care facility shall ensure that:
(1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable despite every reasonable effort to prevent them; and
(2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.
Relying on his contention that the pressure ulcers did not develop while Mr. Yakkey was at Komanoff, Dr. Capobianco opines that 10 N.Y.C.R.R. § 415.12(c)(1) is inapplicable, because it relates only to preventing pressure sores on a patient who enters the facility without pressure sores. Regarding § 415.12(c)(2), Dr. Capobianco sets forth that Mr. Yakkey received treatment conforming to the statute, i.e., necessary treatment and services to promote healing, prevent infection and prevent new sores. He was assessed upon readmission to Komanoff on April 24, 2003, when the pressure sores were noted for the first time; treatment with normal saline and Comfeel patches was ordered; and, Mycolog was applied to reduce redness. The skin lesions were monitored and treated daily, and re-assessed weekly. The ulcers did not deteriorate, become infected, or increase in number.
In order to make a prima facie case for summary judgment, the movant must demonstrate the absence of material issues of fact. Although Dr. Capobianco concluded that Mr. Yakkey never developed pressure sores at Komanoff, a review of the PRIs in Komanoff's files indicate that on March 24, 2003, Mr. Yakkey had a pressure ulcer level I, as reported by Komanoff; on April 11, 2003, Mr. Yakkey had no pressure ulcers, as reported by LBMC; on April 15, 2003, Mr. Yakkey had no pressure ulcers, as reported by Komanoff; and, on April 24, 2003, Mr. Yakkey had a pressure ulcer level II, as reported by LCMC. After April 24, Mr. Yakkey continued to have level II pressure ulcers on his buttocks. It cannot be concluded as a matter of law that Mr. Yakkey did not develop pressure sores at Komanoff. Given that there are issues of fact surrounding when and at which facility Mr. Yakkey developed the pressure ulcers, Komanoff has not shown a prima facie entitlement to summary judgment on the § 415.12(c)(1) claim. As to the § 415.12(c)(2) claim, issues of fact remain as to whether Mr. Yakkey received the "necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." There is conflicting evidence in the medical records and testimony that Mr. Yakkey did not receive treatment necessary to promote the healing of the decubitus ulcers on his buttocks because he was left in an unsanitary state due to soiled diapers and other conditions. Dr. Capobianco's statement that the treatment Mr. Yakkey received at Komanoff "conformed to the statute" does not address the allegation that Mr. Yakkey was left in soiled diapers for extended periods of time and whether this might have affected the healing of sores on his buttocks, nor whether Komanoff exercised "'all care reasonably necessary to prevent and limit'" the pressure sores on Mr. Yakkey. See Zeides,supra at 179. Komanoff's motion is denied with respect to summary judgment on the § 2801-d claim.
Komanoff also asks that this court dismiss any claims for punitive damages plaintiff might have under Pub. Health Law § 2801-d. Plaintiff's complaint and amended complaint do not plead punitive damages under § 2801-d; however, § 2810-d(2) sets forth that "where the deprivation of any such right or benefit [under § 2801-d(1)] is found to have been willful or in reckless disregard of the lawful rights of the patient, punitive damages may be assessed." Komanoff's highly detailed description of the care it rendered to Mr. Yakkey establishes "the absence of any conduct that could be viewed as so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others."Everett v. Loretto Adult Community, Inc., 32 A.D.3d 1273, 1274 (4th Dep't 2006). Plaintiff failed to rebut that aspect of Komanoff's motion seeking to dismiss any claims for punitive damages under § 2801-d (id.); that aspect of Komanoff's motion is granted.
Accordingly, it is
ORDERED that defendants' respective motions for summary judgment are granted in part: the claims in the complaint alleging medical malpractice and wrongful death are severed and dismissed as against all defendants, and the claim for punitive damages under Pub. Health Law § 2801-d(2), is severed and dismissed as against Komanoff.
Plaintiff's complaint survives to the extent that it makes out claims sounding in ordinary negligence as to all three defendants, since defendants' motions treated the case at bar solely as a medical malpractice action, and also survives to the extent that it makes out a statutory claim against Komanoff under Pub. Health Law § 2801-d, except to the extent that this claim has been limited by the paragraph above.
The parties are directed to appear for a pre-trial conference on May 19, 2009. This constitutes the decision and order of the court.