HON. ALEXANDRA D. MURPHY, J.S.C.
Unpublished Opinion
DECISION & ORDER
HON. ALEXANDRA D. MURPHY, J.S.C.
In an action to recover damages for medical malpractice, the defendants Owen Golden, M.D., Owen Golden, M.D., PC (motion seq. 1), Judith Lynn Home for Adults, LLC, Amber Court Assisted Living, LLC, and Amber Court of Pelham Gardens (motion seq. 2), Gold Crest Care Center, Inc. (motion seq. 3), Robert S. Bressner (motion seq. 4), and Jonathan T. Chang (motion seq. 5) separately move for summary judgment, pursuant to CPLR 3212, dismissing the complaint insofar as asserted against them:
Papers Considered NYSCEF Doc. No. 282-386; 389-391; 395-424; 426-441
Motion Seq. 1
1. Amended Notice of Motion/Affirmation of Peter R. Taglia, Esq./Expert Affirmation of Rosario Romano, M.D./Exhibits A-L;
2. Affirmation of Danielle T. Bruno, Esq. in Limited Opposition;
3. Affirmation of Linda M. Oliva, Esq. in Opposition/Exhibits A-B;
4. Reply Affirmation of Peter R. Taglia, Esq./Appendix/Expert Additional Affirmation of Rosario Romano, M.D./Affidavit of Owen Golden, M.D.;
Motion Seq. 2
5. Notice of Motion/Affirmation of Danielle T. Bruno, Esq./Exhibits A-V;
6. Affirmation of Linda M. Oliva, Esq. in Opposition/Exhibits A-B;
7. Reply Affirmation of Danielle T. Bruno, Esq./Supplemental Expert Affirmation of Jeffrey Farber, M.D.;
Motion Seq. 3
8. Notice of Motion/Affirmation of Victoria L. Ronemus, Esq./Exhibits A-P;
9. Affirmation of Linda M. Oliva, Esq. in Opposition/Exhibits A-B;
10. Reply Affirmation of Victoria L. Ronemus, Esq./Exhibit A;
Motion Seq. 4
11. Notice of Motion/Affirmation of Robert J. Reilly, Esq ./Exhibit A-S;
12. Affirmation of Danielle T. Bruno, Esq. in Limited Opposition;
13. Affirmation of Linda M. Oliva, Esq. in Opposition/Exhibits A-B;
14. Reply Affirmation of Robert J. Reilly, Esq.
Motion Seq. 5
15. Amended Notice of Motion/Affirmation of Kevin R. Natale, Esq./Exhibits A-N;
16. Affirmation of Danielle T. Bruno, Esq. in Limited Opposition;
17. Affirmation of Linda M. Oliva, Esq. in Opposition/Exhibits A-B;
18. Reply Affirmation of Kevin R. Natale, Esq.
Factual and Procedural Background
The plaintiff commenced this medical malpractice action related to the treatment of the decedent Annie Williams at Gold Crest Care Center, Inc. (Gold Crest) and her transfer and subsequent care at Amber Court of Pelham Gardens between January 2012 and July 2012.
While at Gold Crest Care Center, the decedent was under the care of Owen Golden, M.D, Robert S. Bressner, M.D. and Jonathan T. Chang, M.D. The decedent fell three times while at Gold Crest on March 10, 2012, April 7, 2012 and May 16, 2012.
On May 30, 2012, the decedent was discharged from Gold Crest and transferred to Amber Court of Pelham Gardens, where she remained until June 3, 2012. On June 3, 2012, the decedent fell in the bathroom and was transferred to Montefiore Medical Center, where she was diagnosed with an acute subdural hematoma superimposed upon a chronic subdural hematoma. Thereafter, the decedent died on July 10, 2012.
The plaintiff Richard Buckeit, Kings County Public Administrator d/n/a of the Estate of Annie Williams, deceased, commenced this medical malpractice action against Dr. Golden and Owen Golden, M.D., P.C. (collective referred to as Dr. Golden), Dr. Chang, Dr. Bressner, Gold Crest, and Judith Lynn Home for Adults, LLC, Amber Court Assisted Living, LLC and Amber Court of Pelham Gardens (collectively referred to as Amber Court).
Dr. Golden moves for summary judgment dismissing the complaint on the grounds that no material issues of fact exist. In support of the motion, he submits an expert affirmation of Rosario Romano, M.D., board certified in internal medicine.
Amber Court moves for summary judgment dismissing the complaint. Amber Court submits an affidavit of Robert Snyder, the Chief Operating Officer and Managing Director of Amber Court Assisted Living Communities. Snyder attests that the decedent was a resident of Amber Court of Pelham Gardens and was never a resident of Amber Court Assisted Living, LLC located in Westbury, New York. Amber Court Assisted Living, LLC is a separate legal entity from Amber Court of Pelham Gardens. Snyder attests that in 2012 Amber Court of Pelham Gardens had a certificate to operate as an assisted living program. For the residents in the assisted living program, home health aides were provided by ALJUD Licensed Home Care Services Agency, another separate legal entity.
Judith Lynn Home For Adults did business as Amber Court of Pelham Gardens.
In further support of the motion, Amber Court submits an expert affirmation of Jeffrey Farber, M.D., board certified in internal medicine and geriatrics.
Gold Crest moves for summary judgment dismissing the complaint. In support of its motion, Gold Crest submits an expert affirmation of Gisele Wolf-Klein, M.D., board certified in internal medicine and geriatrics.
Dr. Bressner moves for summary judgment dismissing the complaint and submits an expert affirmation of Lawrence N. Diamond, M.D., a Diplomate of the American Board of Family Practice.
Dr. Chang moves for summary judgment dismissing the complaint and submits an expert affirmation of Sanford Goldberg, M.D., board certified in internal medicine and gastroenterology.
The plaintiff opposes each of the defendants' motions arguing that they failed to make a prima facie showing of entitlement to summary judgment. In opposition to all the defendants' motions, the plaintiff submits an expert affirmation of a board-certified doctor in internal and geriatric medicine. The plaintiff's expert opines that the defendants' departures from the standard of care were a substantial factor in causing the decedent's injuries, including her fall on June 3, 2012, a subdural hematoma, multi-organ failure and ultimately her death.
Discussion
Initially, the Court finds that the defendant Amber Court Assisted Living, LLC demonstrated entitlement to summary judgment dismissing the complaint. The evidence establishes that Amber Court Assisted Living, LLC is a separate entity located in Westbury, New York, and that the decedent was not a resident of that facility. In opposition to that branch of Amber Court's motion, the plaintiff failed to raise an issue of fact.
"In order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiffs injuries" (Leavy v Merriam, 133 A.D.3d 636, 637 [2d Dep't 2015]). A physician moving for summary judgment in a medical malpractice action must establish, prima facie, either that there was no departure from accepted community standards of medical practice or that any alleged departure was not a proximate cause of the plaintiffs injuries (see Aronov v Soukkary, 104 A.D.3d 623, 624 [2d Dep't 2013]; DiGeronimo v Fuchs, 101 A.D.3d 933, 936 [2d Dep't 2012]). Once a defendant has made such a showing, the burden shifts to the plaintiff to "submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).
Here, the defendants made a prima facie showing of entitlement to summary judgment by demonstrating, through expert opinion, that they did not deviate from the accepted standards of medical practice or that any alleged departure was not a proximate cause of the decedent's injuries or death (see Alvarez v Prospect Hosp., 68 N.Y.2d 320; Reustle v Petraco, 155 A.D.3d 658 [2d Dept 2017]). The affirmations of the defendants' experts establish that the treatment of the decedent while at Gold Crest and Amber Court was within the standard of care and did not proximately cause her injuries or death.
Specifically, Dr. Romano avers that Dr. Golden rendered appropriate treatment to the decedent that conformed to the standard of care and did not cause the decedent's injuries or death. Dr. Romano states that based on the evidence, Dr. Golden never saw the decedent as his involvement was limited to adjusting her medication based on laboratory results. The visit-to-visit care was rendered by Dr. Bressner and Dr. Chang. Dr. Romano further opines that the three falls at Gold Crest were non-injurious and did not involve trauma to the decedent's head. She was kept on Coumadin with adjustments of dose, ranging from three to five milligrams per day, based on periodic coagulation profiles. Dr. Romano opines that neither the timing of the last INR, which is the periodic blood test to determine how long it takes for the blood to clot, at Gold Crest nor the dosages of Coumadin given between May 23, 2012 and June 3, 2012 were factors in the decedent developing an acute subdural hematoma. There is also no evidence that any subdural hematoma was related to her falls at Gold Crest because those falls did not involve head trauma.
Dr. Farber opines that the care provided by Amber Court met the standard of care for personal care services in the adult home/assisted living community and that any actions on the part of Amber Court were not a contributing factor to the decedent's injuries. Dr. Farber states that the decedent's death was not caused by the June 3rd fall at Amber Court, rather her death was caused by respiratory, kidney, liver and brain failure. According to Dr. Farber, the decedent received proper and timely care from Amber Court. The decedent was discharged from Gold Crest to Amber Court of Pelham Gardens on May 20, 2012. Dr. Farber states that while the decedent was at Amber Court on June 3, 2012, the decedent was toileted at 7:32 a m., 10:56 a.m. and 12:31 a.m. At approximately 2:30 a.m., an Amber Court staff member found the decedent on the floor of her apartment bathroom, and she was transferred and admitted to Montefiore Medical Center. A CT scan of the decedent's head taken in the emergency department showed a largely chronic subdural hematoma with a small, superimposed, acute bleed. Dr. Farber states opines that the CT scan indicates that the vast majority of the accumulated blood in the subdural space was not from the June 3, 2012 fall at Amber Court.
Dr. Wolf-Klein opines that the treatment provided to the decedent at Gold Crest was within the standard of care and did not proximately cause the decedent's injuries or death. Dr. Wolf-Klein states that testing was performed weekly at Gold Crest, the doctors were notified of the INR values by Gold Crest nurses in a timely fashion, and the ordered dose of Coumadin was properly administered by Gold Crest staff. According to Dr. Wolf-Klein, mild fluctuations in INR levels are expected and do not indicate a departure from the standard of care. In fact, Dr. Wolf-Klein points out that the decedent's INR levels were stable during her stay at Gold Crest. There is no evidence that the decedent suffered any injury or internal bleeding as a result of the INR levels while she was a resident at Gold Crest.
Dr. Diamond opines that the care and treatment provided by Dr. Bressner was in accord with good and accepted standards of medical care and practice and did not cause the decedent's injuries or death. Dr. Bressner was involved in the decedent's care between February 7, 2012 and May 16, 2012. During that time, there was no head injury or any change in the decedent's medical condition or mental status. According to Dr. Diamond, Dr. Bressner appropriately responded to the decedent after each fall while she was at Gold Crest. There was no reason for Dr. Bressner to suspect any trauma to the decedent's head as a result of the falls, and radiological imaging was therefore not required. Moreover, Dr. Bressner's management of the decedent's coagulation was appropriate and did not constitute a deviation from the standard of care. Dr. Bressner made appropriate adjustments to the decedent's Coumadin dosage in response to subtherapeutic and supratherapeutic INR levels.
Dr. Goldberg opines that Dr. Chang rendered appropriate treatment to the decedent and that such treatment was not a proximate cause of her alleged injuries or death. Dr. Chang first treated the decedent on January 5, 2012, while she was at Gold Crest. Dr. Goldberg states that the fall prevention and safety measures undertaken at Gold Crest were appropriate. There is no indication that Dr. Chang was involved in the decedent's discharge planning because it was not his role. Moreover, Dr. Goldberg states that Dr. Chang did not perform any invasive treatment or procedure on the decedent for which consent was needed. Dr. Goldberg opined that Dr. Chang's monitoring of the INR levels was appropriate. Dr. Goldberg further states that neither Dr. Chang's monitoring nor the dosage of Coumadin received in connection with his monitoring of the INR levels played any role in increasing the decedent's risk of bleeding and had no bearing on the development of an acute or chronic subdural hematoma.
The defendants demonstrated entitlement to summary judgment, and the burden shifted to the plaintiff to raise a triable issue of fact. In opposition, the plaintiffs expert affidavit, submitted in opposition to the defendants' motions, raises triable issues of fact as to whether the defendants departed from good and accepted medical practice in the care and treatment of the decedent and whether such departures were a proximate cause of her injuries and death (see Reustle v Petraco, 155 A.D.3d 658).
As to Dr. Golden, Dr. Chang, Dr. Bressner and Gold Crest, the plaintiffs expert states that they were negligent in transferring the decedent from a skilled nursing center to Amber Court, which is a lower acuity assisted living facility because the decedent required more care and was not stable. The expert further opines that these defendants failed to properly perform a thorough and accurate fall risk assessment after each fall at Gold Crest and failed to appropriately document and communicate pertinent medical information to the Amber Court staff prior to her admission. The plaintiffs expert further opines that Dr. Golden, Dr. Chang, Dr. Bressner and Gold Crest were negligent in failing to perform a complete discharge physical examination of the decedent, failing to properly monitor and manage her INR levels and Coumadin administration, failing to order a hematology consult, failing to reassess her for physical therapy after each fall or order a CT scan, failing to perform a gait analysis and failing to order a neurological consult.
As to Amber Court, the plaintiffs expert opines that Amber Court was negligent in accepting the decedent as a resident when she was unsuitable for an assisted living facility and failing to transfer her to a facility that would provide a higher level of care. The expert further states that Amber Court was negligent in failing to obtain pertinent medical information, failing to prevent the decedent's fall, failing to properly administer medications including Coumadin, failing to arrange for the decedent to be seen by a physician and have a physical therapy evaluation within one or two days of her transfer and failing to have a thorough, interdisciplinary evaluation of the decedent to determine if her needs could be met by Amber court.
As a result of the foregoing, issues of fact exist requiring the denial of summary judgment. The Court has considered the parties' remaining contentions, which are found to be without merit.
Accordingly, it is
ORDERED that the motion of the defendants Owen Golden, M.D. and Owen Golden, M.D., PC is DENIED (motion seq. 1); and it is further
ORDERED that the branch of the motion of the defendants Judith Lynn Home for Adults, LLC, Amber Court Assisted Living, LLC, and Amber Court of Pelham Gardens for summary judgment dismissing the complaint against Amber Court Assisted Living, LLC is GRANTED, and the complaint is DISMISSED solely insofar as asserted against it, and the remaining branches of the motion are DENIED (motion seq. 2); and it is further
ORDERED that the motion of the defendant Gold Crest Care Center, Inc. is DENIED (motion seq. 3); and it is further
ORDERED that the motion of the defendant Robert S. Bressner is DENIED (motion seq. 4); and it is further
ORDERED that the motion of the defendant Jonathan T. Chang is DENIED (motion seq. 5).
Counsel for all parties are directed to appear for a Settlement Conference on JANUARY 12, 2023 at 2:00 P.M. A Teams link will be sent from the part clerk Brenda Jordan Williams prior to the conference date.