### Ranker v VillageCare 2024 NY Slip Op 31632(U) May 8, 2024 Supreme Court, New York County Docket Number: Index No. 805064/2020 Judge: Judith N. McMahon Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.INDEX NO. 805064/2020 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/08/2024

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### SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDITH N. MCMAHON PART Justice



### --------------- 30M



### ·--------------------------·--- -----X INDEX NO. 805064/2020 GARY RANKER, Plaintiff,

- V - VILLAGECARE, VILLAGECARE REHABILITATION AND NURSING CENTER, DENNIS KARTER Defendant. ---------------------------------------------X MOTION DATE 05/02/2024 MOTION SEQ. NO. 002 003
DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 002) 44 , 45, 46, 47, 48, 49, 50, 51, 52 , 53, 54, 55, 56, 57, 58, 59, 95 were read on this motion to/for JUDGMENT-SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 003) 60, 61, 62, 63 , 64, 65,66,67,68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,80, 81, 82, 83,84 , 85,86, 87, 88, 89,90,91 , 92, 93, 94, 96 were read on this motion to/for 

### JUDGMENT-SUMMARY Upon the foregoing documents, it is ordered that the motion for summaryjudgmentby the defendant, Dennis Karter, M.D. (Motion Seq. No. 002), is granted in its entirety and the complaint and all cross claims are severed and dismissed against Dr. Karter. The motion for summaryjudgmentby the defendant, VillageCare Rehabilitation and Nur sing Center s/h/a VillageCare and VillageCare Rehabilitation and Nursing Center (hereinafter "VillageCare") (Motion Seq. No. 003), is granted to the extent that plaintiffs ' causes ofaction for alleged
violations ofthe Public Health Law, failure to furnish informed consent, and negligent hiring are
seve red and dismissed. The balance ofthe motion is denied.

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2 of 8 This medical malpractice action involves the March 28, 2019, death ofplaintiffs' decedent, 76-year-old Gary Ranker, during the latter part ofhis second admission 1to VillageCare where he was undergoing occupational and physical therapy. Decedent's extensive medical history at that time included Guillain-Barre Syndrome with paralysis, myasthenia gravis, sarcoidosis, Kaposi 's Sarcoma with gastrointestinal organ involvement, chronic obstructive pulmonary disease, recurrent UTis, hypothyroidism, depression, hypertension, lower extremity deep vein thrombosis, recurrent aspiration pneumonia, and opioid-induced constipation2• Plaintiffs allege that defendants failed to prevent, timely diagnose, and properly treat a bowel obstruction, aspiration, sepsis, and aspiration pneumonia resulting in Mr
. Ranker's death. 

### It appears undisputed that decedent developed abdominal pain and complained of constipation on March 24, 2019, for which he was given one dose ofMilk ofMagnesia. Physical examination at that time revealed that his abdomen was soft and not distended. On the morning ofMarch 25, 2019, he was given two doses ofDulcolax along with an enema and lactulose. These treatments did not induce a bowel movement. During the daytime hours ofMarch 25, 2019, Mr. Ranker's vital signs remained normal, and he was in no apparent distress, having participated inroutine physical therapy which included ambulating 90 feet. Sometime after 7:00 p.m., however, decedent complained of increasing abdominal pain. His skin became cold and clammy, and he vomited coffee ground emesis indicative ofan upper GI bleed. At 10:26 p.m. Relistor 12 mg was administered and at 10:35 p.m. IV hydration was given. At 10:49 p.m. EMS was called for emergent transfer to the hospital.

Decedent was admitted toVillageCare between February 5, 2019, and March 3, 2019, and again from March 11 , 2019, to March 26, 2019. Between admissions he was re-hospitalized atMt. Sinai Beth Israel. 2 According to VillageCare' s records, decedent generally had weekly bowel movements during his stay. His last bowel movement was on March 17, 2019.

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3 of 8 EMS arrived at VillageCare at 12:08 a.m. on March 26, 2019, and an initial assessment revealed normal respirations, normal pulses, and baseline mental status. Mr. Ranker's blood pressure was 138/90. On the way to New York Presbyterian Downtown Hospital decedent purportedly became combative and pulled out his IV. He suffered cardiopulmonary arrest and arrived at the hospital pulseless, with ongoing CPR. The hospital staffsuccessfully restored spontaneous circulation, but Mr. Ranker's condition quickly deteriorated, and he was found to have minimal brainstem reflexes. On March 28, 2019, Mr. Ranker went into cardiopulmonary arrest andpassed away. A preliminary autopsy report reflects the probable cause ofdeath as "aspiration pneumonia in the setting ofintestinal obstruction" (see NYSCEF Doc. No. 92)
. The final autopsy report reads: "gross examination showed a redundant sigmoid colon loop with distension ofthe entire colon and abundant digestive material present through the small bowel, with no definitive evidence of volvulus" (id.). Defendants move for summaryjudgment on the grounds that theirtreatment adhered to the standard ofcare, and that their action or inaction did notcause or contribute to Mr. Ranker's injuries and death. Notably, VillageCare maintains, inter alia, that "there was no evidence that decedent suffered from a bowel obstruction at any time prior to his death" (see Expert Affirmation ofLawrence N. Diamond, M.D.; NYSCEF Doc. No. 63, para. 6) and further, that "plaintiffs' claims that defendant failed to prevent, timely diagnose, and properly treat bowel obstruction cannot be medically supported" (id.), since Mr. Ranker's cause ofdeath was ultimately acute or chronic aspiration pneumonia. Dr. Karter, an infectious disease specialist whose sole examination ofdecedent during his second VillageCare admission was on March 21, 2019, maintains through his expert , Dial Hewlett, M.D
., that "there were no findings present at

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### the time ofthis evaluation which would suggest the presence ofabowel obstruction" (see 

### NYSCEF Doc. No. 47, para. 40). Plaintiffopposes bothmotions. The standards for summaryjudgment are well settled. The proponent "must makeprima facie 

### showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues offact from the case" (Winegrad v. New York Univ. Med Ctr. , 

### 64 NY2d 851, 853 [1985]; 

### [internal citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York, 

### 49 NY2d 557,562 [1980]), and the facts must be viewed in the light most favorable to the nonmoving party (see Vega v. Restani Constr. Corp., 

### 18 NY3d 499, 503 [2012]). "In determining whether summaryjudgment is appropriate, the motion cour t should draw all reasonable inferences in favor ofthe nonmoving party and should not pass on the issues ofcredibility" (Garcia v. JD. Duggan, Inc., 

### 180 AD2d 579, 580 [1 st 

### Dept. 1992]). "[P]ointing to gaps in an opponent's evidence is insufficient to demonstrate a movant's entitlement to summaryjudgment" (Koulermos v. A.O. Smith Water Prods., 

### 137 AD3d 575,576 [1 st 

### Dept. 2016]). "The drastic remedy of summary judgment, which deprives a party ofhis day in court, should not be granted where there is any doubt as to the existence oftriable issues orthe issue is
even 'arguable"' (DeParis v. Women's Natl. Republican Club, Inc., 

### 148 AD3d 401 [P1 

### Dept. 2017]; [internal citations omitted]). 

### "It is not the court's function on a motion for summary judgment to assess credibility" (Ferrante v. American LungAss n., 

### 90 NY2d 623, 631 (1997]). To sustain a cause ofaction for medical malpractice, the plaintiffmust prove two essential elements: (1) a deviation ordeparture from acceptedpractice, and (2) 

### evidence that such de parture
was a proximate cause ofthe claimed injury. A medical provider moving for summaryjudgment, therefore, must make a primafacie 

### showing of entitlement to judgment as a matter of

### law by

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### establishing the absence ofa triable issue offact as to his or her alleged departure from accepted standardsof medicalpractice (Frye v. Montefiore Med Ctr., 

### 70 AD3d 15 [l51

### Dept. 2009]; [internal citations omitted]), 

### or by establishing that the plaintiff was not injured by such treatment (see 

### generally Stukas v. Streiter, 

### 83 AD3d 18 [2d Dept. 2011]). To satisfy the burden on the motion, 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 ofparticulars, and is detailed, specific, andfactual innature (see Roquesv. Noble, 

### 73 AD3d 204,206 [1 st 

### Dept. 2010]). If

### the expert's opinion is not based on facts inthe record, the facts must be personally known to the expert and the opinion should specify "in what way" the plaintiffs treatment was proper and "elucidate the standard ofcare" (Ocasio-Gary v. Lawrence Hospital , 

### 69 AD3d 403,404 [1 st 

### Dept. 2010]). Once a defendant has made such a showing, the burden shifts to the plaintiffto "submit evidentiary facts or materials to rebut theprimafacie 

### showing by the defendant" (Alvarez v. Prospect Hosp. , 

### 68 NY2d 320, 324 [1986]), but only as to those elements
on which the defendant met the burden (see Gillespie v. New York Hosp. Queens , 

### 96 AD3d 901 [2d Dept. 2012]). Accordingly, a plaintiffmust produce expert testimony regarding the specific acts of malpractice, and not just testimony that alleges " [g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence" (Alvarez v. Prospect Hosp., 

### 68 NY2d at 325). In most instances, the opinion ofa qualified expert that the plaintiffs injuries resulted from a deviation from relevant industry ormedical standards is sufficientto defeat summaryjudgment (Frye v. Montefiore Med. Ctr., 

### 70 AD3d 15, 24). Where the expert's "ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summaryjudgment" (Diaz v. New York Downtown Hosp., 

### 99 NY2d 542, 544 [2002]). The plaintiffs expert must address the

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6 of 8 specific assertions ofthe defendant's expert with respect to negligence and causation (see FosterSturrup v. Long, 95 AD3d 726, 728-729 [1 st Dept. 2012]). Where the parties' conflicting expert opinions are adequately supported by the record, summaryjudgment must be denied. "Resolution ofissues of credibility ofexpert witnesses and the accuracy oftheir testimony are matters within the province ofthejury" (Frye 

### v. Montefi.ore Med Ctr., 70AD3d 15, 25; see also Cruz v. St. BarnabasHospital, 50 AD3d 382 

### [1 st Dept. 2008]). The defendant infectious disease physician, Dr. Karter, has established entitlement to summaryjudgment dismissing plaintiffs' complaint by submitting, inter alia, the factually based and detailed affirmation of Dr. Hewlett. Plaintiffs' expert has not identified any departures from the standard of care on the part of Dr. Karter, whose role was infectious disease consultant. Accordingly, Dr. Karter's motion for summaryjudgmentdismissing the complaint is granted. VillageCare has established entitlement to summary judgment by submitting, inter alia, the factually based and detailed affirmation ofDr. Diamond. In opposition, plaintiffs have met their burden in rebutting VillageCare's 

### prima facie showing by submitting, 

### inter alia, the affirmation of an expert internist and geriatric specialist (see NYSCEF Doc. No. 94), who specifically refuted the assertions made by Dr. Diamond. Relevant here is plaintiffs' expert's findings that VillageCare departed from the standard ofcare by (1) continuing to feed Mr. Ranker
on March 24· 2019; (2) failing to recognize a bowel obstruction from impacted stool (i.e., "the large quantity ofstool found inthe postmortem exam along with the presence offood particles in the lungs" supports the finding of a bowel obstruction from impacted stool, requiring a more aggressive treatment ofhis routine constipation (see NYSCEF Doc. No. 94, para. 57), and (3) failing to provide life-saving treatment upon bowel impaction, by immediately transferring decedent to the hospital for a nasogastric tube placement or invasive surgical intervention (id. ,

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7 of 8 para. 59). Plaintiffs' expert opines that "Mr. Ranker required regular monitoring due to his ongoing conditions and the risks posed by his prescribed medications, which are known to cause bowel obstruction, that was not considered by his care team, and that when he began to show obvious signs ofobstruction on March 24th (or sooner) it was not treated as a medical emergency, and that his death
...was in fact proximately caused by the actions or omissions ofthe defendants herein" (id., para. 60). While evidence of injury alone does not mean that the defendants were negligent (see 

### Landau v. Rappaport, 306 AD2d 446 [lst Dept. 2003]), the facts in this record together with plaintiffs' expert's opinion as to the departures from good and acceptedmedical practice mandates
a trial on whether VillageCare's departures from the standard ofcare were a proximate cause of plaintiffs injuries. For a claim oflack ofinformed consent to be actionable, a defendant must have engaged in a "non-emergency treatment, procedure or surgery" or "adiagnostic procedure which involved invasion or disruption ofthe integrity ofthe body" (Public Health Law §2805-d [2]). Underthese facts, plaintiffs' cause of action for lack of informed consent must be dismissed. Likewise, plaintiffs' expert has not identified specific violations ofthe Public Health Law, nor set forth any facts to support a cause ofaction for negligent hiring. Accordingly, it is ORERED that the motion for summary judgment by defendant, Dennis Karter, M.D., is granted and the complaint and all cross claims are severed and dismissed; and itis further ORDERED that the motion for summary judgment by the defendant VillageCare Rehabilitation and Nursing Center s/h/a VillageCare and VillageCare Rehabilitation and Nursing Center is granted to the extent that plaintiffs' causes ofaction for violations ofthe Public Health

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### Law, failure to furnish informed consent, and negligenthiring are severed and dismissed; and it is further ORDERED that the balance ofVillageCare's motion is denied; and it is further ORDERED that the Clerk is directed to enterjudgmentin favor ofDr. Karter severing and dismissing plaintiffs' complaint; and it is further ORDERED that the Clerk is directed to enterjudgment in favor ofVillageCare severing and dismissing plaintiffs' causes ofaction for alleged violations the Public Health Law, failure to furnish informed consent, and for negligent hiring as against defendant VillageCare; and it is further ORDERED that counsel for plaintiffs and VillageCare shall appear for a virtual pre-trial conference via Microsoft Teams onJuly 25, 2024, at 10:30 a.m.

5/8/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

805064/2020 RANKER, GARYvs. VILLAGECARE Motion No
. 002 003 NON-FINAL DISPO GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE 

### Hon. Judith 

### N.

### McMahon J.S.C
.

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