| Carthon v Buffalo Gen. Hosp. @ Deaconess Skilled Nursing FacilityDiv. |
| 2011 NY Slip Op 02562 [83 AD3d 1404] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Ida G. Carthon, as Administratrix of the Estate of Elige Carthon,Jr., Deceased, Respondent, v Buffalo General Hospital @ Deaconess Skilled Nursing FacilityDivision et al., Appellants. |
—[*1]
Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), enteredMarch 16, 2010 in a wrongful death action. The order denied the motion of defendants forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the first and second causes of action except insofar asthey allege ordinary negligence on the part of defendants and as modified the order is affirmedwithout costs in accordance with the following memorandum: Plaintiff, as administratrix of theestate of her husband (decedent), commenced this action seeking damages for his wrongfuldeath. Decedent was a resident of a nursing home owned and operated by defendants when hedied at age 68 while eating dinner at the facility. Decedent suffered from several ailments,including alcohol-related dementia and complications from a stroke, which left him unable tospeak and with difficulty in swallowing. The care plan in effect for decedent at the time of hisdeath called for him to be supervised while eating. According to plaintiff, decedent died as aresult of choking on food during dinner. Following discovery, defendants moved for summaryjudgment dismissing the complaint on the grounds that the causes of action sound in medicalmalpractice rather than in ordinary negligence and that defendants established that the care theyprovided to decedent did not deviate from the accepted standard of medical care. Supreme Courtdenied the motion. We note at the outset that, in moving for summary judgment, defendants didnot address the third cause of action, which alleges the violation of specified sections of thePublic Health Law. We therefore do not address that cause of action either.
We agree with defendants that the complaint, as amplified by the bill of particulars, allegesseveral claims sounding in medical malpractice and that the court erred in denying their motionwith respect to those claims. We therefore modify the order accordingly. For instance, thecomplaint, as amplified by the bill of particulars, alleges that defendants failed to "enact andfollow an appropriate care plan" for decedent, failed to "change and/or adjust [decedent's] care[*2]plan," failed to "update and follow an appropriate plan of carepursuant to a comprehensive assessment," failed to "provide adequate staffing," and failed to"provide adequate services to maintain [decedent's] physical well-being." Those claims "sound inmedical malpractice because they challenge the [nursing home's] assessment of [decedent's] needfor supervision" (Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966, 967[1994]). We further agree with defendants that they met their initial burden on the motion withrespect to those claims of medical malpractice by submitting the affidavit of their expertphysician, who averred that defendants did not deviate from the accepted standard of medicalcare in the treatment and assessment of decedent (see Elliot v Long Is. Home, Ltd., 12 AD3d 481, 482 [2004]), andplaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). Even assuming, arguendo, that a registered nurse isqualified to render a medical opinion with respect to the relevant standard of care (cf.Elliot, 12 AD3d at 482), we conclude that the affidavit of a registered nurse submitted byplaintiff in opposition to the motion is insufficient to raise a triable issue of fact (see Selmensberger v Kaleida Health,45 AD3d 1435, 1436 [2007]).
We conclude, however, that the court properly denied the motion with respect to theremaining claims, which sound in ordinary negligence inasmuch as they are based on allegationsthat defendants' employees failed to carry out the directions of the physicians responsible fordecedent's care plan (see Fields v Sisters of Charity Hosp., 275 AD2d 1004 [2000]). Thecomplaint, as amplified by the bill of particulars, alleges that defendants failed to provide propersupervision and assistance to decedent at dinner on the night in question, thus causing him tochoke to death, and that they failed to follow their own "aspiration precautions" for the nursinghome residents. Although defendants met their initial burden of establishing that their employeesadequately supervised decedent while he was eating, we conclude that plaintiff raised a triableissue of fact sufficient to defeat the motion (see generally Zuckerman, 49 NY2d at 562).In opposition to the motion, plaintiff submitted, inter alia, an incident report signed by thenursing home floor manager stating that the certified nursing assistant assigned to supervisedecedent at dinner was passing trays in the dining room when the incident occurred.
We reject defendants' alternative contention that the court erred in denying its motionbecause decedent died of natural causes while he happened to be eating. Even assuming,arguendo, that defendants met their initial burden of establishing that decedent died of a heartattack or a stroke, we conclude that the evidence submitted by plaintiff in opposition to themotion is sufficient to raise a triable issue of fact whether decedent choked to death. Indeed, themedical records submitted by plaintiff indicate that one of the paramedics who attempted toresuscitate decedent removed large pieces of food from his trachea, and one of defendants'employees testified that decedent appeared to be choking and that several other employeesattempted the Heimlich Maneuver. Present—Smith, J.P., Peradotto, Lindley, Sconiers andMartoche, JJ.