Skylar v Lenox Hill Hosp. 2024 NY Slip Op 33176(U) September 6, 2024 Supreme Court, New York County Docket Number: Index No. 805185/2018 Judge: Kathy J. King 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.805185/2018 SKYLAR, ALAYNE vs. LENOX HILL HOSPITAL

Motion No. 003 Page 1 of 7 The following e

- filed documents, l isted by NYSCEF document number (Motion 003) 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128 were read on this motion to/for JUDGMENT

- SUMMARY

. Upon the foregoing documents, Defendant Lenox Hill Hospital (“Lenox Hill”) moves for an order, pursuant to CPLR § 3212, granting summary judgment and dismissal in its favor, with prejudice; or alternatively pursuant to CPLR § 3212(c) and (g), granting part ial summary judgment in its favor, and dismissing all claims for which plaintiff is unable to raise a triable issue of fact, thereby limiting the issues for trial.
Plaintiff , Alayne Skylar, opposes the motion.
Plaintiff is the daughter and Executrix of t he Estate of Ver r a Katz, the P laintiff’s decedent (“decedent”), and brings this action on behalf of the E state alleging causes of action in medical malpractice and negligence . The complaint alleges that D efendant, Lenox Hill, was negligent, and that said negligence proximately caused decedent , while she was a patient , to sustain injuries includ ing a sacral pressure ulcer , a right lower back pressure ulcer , infection ,



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. KATHY J. KING PART 06 Justice

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MOTION DATE 11/29/2023

MOTION SEQ. NO. 003

DECISION + ORDER ON MOTION ALAYNE SKYLAR AS EXECUTRIX OF THE ESTATE OF VERRA KATZ, Plaintiff,

- v - LENOX HILL HOSPITAL, THE MARY MANNING WALSH NURSING HOME COMPANY, INC. D/B/A MARY MANNING WALSH NURSING HOME, VISITING NURSE SERVICE OF NEW YORK HOME CARE, II Defendant.

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### FILED: NEW YORK COUNTY CLERK 09/06/2024 04:57 PM INDEX NO. 805185/2018 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/06/2024

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Motion No. 003 Page 2 of 7 sepsis , necrosis , deep tissue injury , dehydration , malnutrition , emotional trauma , and pain and suffering. The gravamen of the Plaintiff’s claim is that t he doctors, nurses and aides at Lenox
Hill deviated from good and accepted medical and nursing care, resulting in the development and/or deterioration of decedent’s sacral and right lower back pressure ulcers

. Additionally, Plaintiff alleges that the failure to diagnose and properly treat said pressure ulcers could have been avoided with proper medical and nursing care, including , inter alia , the implementation of a care plan for pressure ulcer prevention and implementation of interventions to avoid the formation of pressure ulcers

. Defendant now moves for summary judgment dismiss ing Plaintiff’s claims pursuant to
CPLR 3212 and contends that there was no depart ure fr om good and accepted medical practice
in its care and treatment of the decedent Verra Kat z resulting in the alleged injuries set forth in the complaint

. O n November 14, 2016, t he decedent was admitted to Lenox Hill due to altered me ntal

status. The medical record indicates that at the time of admission s he was 98 years old , in a state of malnutrition and dehydration, and suffering from a urinary tract infection and incontinen ce
. The record shows that she had a previous history of colon cancer and dem entia

. The record also

note s that decedent had complete dependence with mobility and was incontinent

. Her condition eventually stabilized, and on November 24, 2016, she was discharged and transported to C o
D efendant Mary Manning Nursing Home (“Mary Mannin g”) for hospice care by SeniorCare Emergency Medical Services (“SeniorCare”)

. It is well

- settled that “[t]o 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 

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Motion No. 003 Page 3 of 7 Med. Ctr. , 70 AD3d 15, 24 [1st Dept 2009]; see Roques v Noble , 73 AD3d 204 [1st Dept 2010];
Elias v Bash , 54 AD3d 354 [2d Dept 2008]; DeFilippo v New York Downtown Hosp. , 10 AD3d 521 [1st Dept 2004]). A defendant 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 an alleged departure from accepted standards of medical practice ( Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986]; Frye v Montefiore Med. Ctr. , 70 AD3d 15), and by establishing that the plaintiff was not injured by such treatment ( see McGuigan v Centereach Mgt. Group, Inc. , 94 AD3d 955 [2d Dept 2012]; Sharp v Weber , 77 AD3d 812 [2d Dept 2010]; see generally Stukas v Streiter , 83 AD3d 18 [2d Dept 2011]). To satisfy this burden, a defendant must present expert opinion testimony that is s upported by the facts in the record, which address and rebuts specific allegations of malpractice set forth in the plaintiff's complaint or the bill of particulars, and is detailed, specific, and factual in nature ( see Roques v Noble , 73 AD3d at 206; Joyne r - Pack v. Sykes , 54 AD3d 727 [2d Dept 2008]; Koi Hou Chan v Yeung , 66 AD3d 642 [2d Dept 2009]; Jones v Ricciardelli , 40 AD3d 935 [2d Dept 2007]). Furthermore, to satisfy the burden on a motion for summary judgment, admissible forms of proof include affidav its, pleadings, written admissions, deposition testimony and medical records ( Id. ; Olan v Farrell

Lines , 64 NY2d 1092, 489 NYS2d 884 [1985]; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]). Once the proponent makes a prima facie showing, t he burden shifts to
the opposing party “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 , 508 NYS2d at 925; see also Menzel v Plotnick , 202 AD2d 5 58 [2d Dept 1994]; Salamone v Rehman , 178 AD2d 638 [2d Dept 1991]). ( see Zuckerman v City of New York , 49 NY2d 557, 558

- 59 [1980]). 

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Motion No. 003 Page 4 of 7 In support of the motion, the D efendant submits the affirmation of Dr. Roy J. Goldberg , a board

- certified Internist, who opines with a reasonable degree of medical certainty, based upon a review of the pleadings, bill s of particulars, decedent’s medical records and the deposition transcripts in this matter. Specifically, Dr. Goldberg opines that Lenox Hill 1) provided decedent with proper nutritional supplementation to address her pre

- existing malnutrition ; 2 ) properly
assessed decedent with respect to risk for the development of pressure ulcers and instituted protocols to prevent them, such as turning and pos itioning every two hours and addressing her nutrition issues, which were proper and within the standard of care; and 3 ) conducted d aily skin checks during decedent’s admission which showed that the decedent was free of ulcers while at
Lenox Hill , and that as a result, Lenox Hill did not deviate in any manner from the standard of

care
. Dr. Goldberg’s opinion is consistent with the Patient Care Report created by SeniorCare
which showed that there w ere no lower back abnormalities observed prior to transport to Mary Manning; He points out that the medical records show that the decedent developed a sacral/lower back pressure while under the care of Mary Manning, and notes that on admission to Mary Manning that except for an “abrasion” on her back, the decedent had no open wounds or pressure ulcers

. Dr. Goldberg also opines that the Mary Manning documentation on November 28, 2016, mistakenly indicated that a stage two pressure injury to decedent’s sacrococcygeal ulcer was “present on admission” since there is no documentation four days prior to that date that

a pressure ulcer was observed

. He further opines that P laintiff’s claims of failing to hire proper personnel, failing to institute adequate policies and pr ocedures for the prevention and treatment of pressure ulcers and failing to adhere to such policies are without merit, as evidenced by the preventative measure s employed by the staff at Lenox Hill . Citing the decedent’s medical record, Dr. Goldberg furthe r 

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Motion No. 003 Page 5 of 7 opines that L enox Hill did not deviate from the standard of care in treating the decedent and that
the care and treatment rendered was not the proximate cause of the decedent’s alleged injuries , since the records do not document P laintiff’s claims of inf ection and sepsis ; instead, the records show that decedent was admitted to treat sepsis due to a urinary tract infection, and that she did not acquire any infection, deep tissue injury or necrosis during the admission

. The Court finds that based on Dr. Gol dberg’s affirmation , Defendant has met its burden

to establish prima facie entitlement to judgment as a matter of law that Lenox Hill did not deviate from the standard of care in treating P laintiff during the admission of November 14 to November 24, 2016, and that such deviation was not the proximate cause of plaintiff’s injuries ( see Zuckerman , 49 NY2d 557 ; see also Alv arez , 68 NY2d 320; Frye v Montefiore Med. Ctr ., 70 AD3d 15 [2009]; Bahny uk v Reed , 174 AD3d 481 [1st Dept 2019]). In opposition, P laintiff submits the expert affirmation of “Expert A” 1 who is board
certified in Internal and Geriatric Medicine , to rebut Defendant ’ s prima facie showing. Expert A opines, to a reasonable degree of medical certainty, based on a review of the decedent’s medical records, pleadings, bills of particulars, deposition transcripts, and the exhibits annexed to

D efendant’s moving papers

. Specifically, Expert A opines that t he Lenox Hill doctors, nurses and aides deviated from good and accepted medical and nursing care

. According to Expert A , decedent was at a high risk for developing pressure ulcer s based on her age, past medical history, poor nutritional status,
incontinen ce and limited mobility, and the standard of care required 1) proper turning and positioning every two hours, rather than every four hours as was ordered three days after admission on November 17, 2016 ; 2) implementing a care plan for pressure ulcer preve ntion ;

1 In the affirmation , Plaintiff’s expert name has been redacted ; Plaintiff’s expert is hereinafter referred to as “ Expert A .” 

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Motion No. 003 Page 6 of 7 and 3) interventions to avoid the formation of pressure ulcers . Expert A opines that the se deviation s in the standard of care was the proximate cause in the development and/or deterioration of decedent’s sacral and right lower back pressure ulcers, emotional trauma and pain and suffering. Expert A also disputes Dr. Goldberg’s opinion that decedent did not have a sacral ulcer upon admission to Mary Manning, based on the admission record document ing that on November 24th, 2016, the decedent had a “[s]tage 2 sacral pressure ulcer” and a right lower back
skin breakdown. In opposition, Expert A’s affirmation has raised triable issues of fact as to whether the decedent developed a pressure ulcer during the Lenox Hill admission; whet her the decedent was ordered to be turned and positioned every four hours or every two hours while at Lenox Hill; whether a “body check” was done by the SeniorCare a mbulance personnel, and if so, whether a pressure sore was present; and whether the deceden t had a stage two sacral pressure ulcer and right lower back skin breakdown upon admission to Mary Manning, or whether th ose conditions developed after admission to Mary Manning on November 24, 2016. Here, Expert A established the requisite nexus between the malpractice allegedly committed by Defendants and resulting injury, thereby rebutting the Defendant ’s prima facie showing ( Alvarez, 68 NY2d at 324; Mignoli v Oyugi, 82 AD3d 443, 918 NYS2d 86 [1st Dept 2011]). The Court finds that the conflicting exper t affidavits of Plaintiff and Defendant raise
triable issue s of fact ( see Roques v Noble, 73 AD3d 204, 206, 899 NYS2d 193 [1st Dept 2010]). “Summary judgment is not appropriate in a malpractice action where, as here, the parties adduce conflicting expert opinions” because “[s]uch credibility issues can only be resolved by a jury” ( Hayden v Gordon , 91 AD3d 819, 821 [2d Dept 2012]; Feinberg v Feit , 23 AD3d 517 [2d Dept 

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Motion No. 003 Page 7 of 7 2005]; Griffin v Cerabona , 103 AD3d 420 [1st Dept 2013]; Amendola v Bro okhaven Health Care Facility, LLC , 150 AD3d 1061 [2d Dept 2017]).
The Court notes that Expert A does not refute Dr. Goldberg’s opinion as to Lenox Hill’s negligence , and whether such negligence proximately cause decedent to suffer from infection, sepsis, dehydration; or malnutrition, and therefore these claims must be dismissed. Accordingly, it is hereby
ORDERED , that the prong of Defendant’s motion seeking partial summary judgment , pursuant to CPLR § 3212(c) and (g) , is granted to the extent of dismissin g Plaintiff’s claims that Defendant’s negligence proximately caused the decedent to suffer from infection, sepsis, dehydration and malnutrition , and in all other respects, the motion is denied

. This constitutes the Decision and Order of the Court.

$SIG$ DATE KATHY J. KING, J.S.C.

CHECK ONE: CASE DISPOSED X NON - FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 9/6/24 

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