| Novick v South Nassau Communities Hosp. |
| 2016 NY Slip Op 01304 [136 AD3d 999] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| Esther Novick et al., Appellants, v SouthNassau Communities Hospital et al., Respondents. |
Rich & Rich, PC (Pollack, Pollack, Isaac & De Cicco, LLP, New York,NY [Brian J. Isaac and Michael H. Zhu], of counsel), for appellants.
Bartlett, McDonough & Monaghan, LLP, Mineola, NY (Robert G. Vizza ofcounsel), for respondent South Nassau Communities Hospital.
Connick, Myers, Haas & McNamee, P.L.L.C., Mineola, NY (Barbara A. Myersof counsel), for respondent Andrew Goldstein.
Lewis Johs Avallone Aviles, LLP, Islandia, NY (Robert A. Lifson of counsel), forrespondent Long Beach Medical Center.
Kaufman Borgeest & Ryan LLP, Valhalla, NY (Jacqueline Mandell and DavidBloom of counsel), for respondent Long Beach Memorial Nursing Home, Inc., doingbusiness as The Komanoff Center for Geriatric and Rehabilitative Medicine.
In an action to recover damages for medical malpractice, violation of the PublicHealth Law, and wrongful death, the plaintiffs appeal from a judgment of the SupremeCourt, Queens County (O'Donoghue, J.), entered June 4, 2013, which, upon an order ofthe same court entered February 14, 2013, granting the separate motions of thedefendants for summary judgment dismissing the complaint insofar as asserted againsteach of them, is in favor of the defendants and against them, dismissing the complaint inits entirety.
Ordered that the judgment is affirmed, with one bill of costs.
The plaintiffs' decedent, Abraham Novick (hereinafter the decedent), was involved ina motor vehicle accident on August 31, 2006. He was 75 years old at the time. Severaldays after the accident, the decedent was unable to hold a spoon and complained of painin his neck. His wife called an ambulance, and went with him in the ambulance to thedefendant South Nassau Communities Hospital (hereinafter SNCH). The decedent wasdiagnosed with fractures in his cervical spine. On September 18, 2006, he underwentneurosurgery to repair a crushed vertebra in his neck. The decedent was treated by thedefendant Dr. Andrew Goldstein while at SNCH. Goldstein had treated the decedent fora number of conditions prior to the accident at issue, including diabetes andcomplications arising therefrom. He testified at his deposition that the decedent's diabeteswas "inadequately controlled."
The decedent developed a number of infections while at SNCH, includingbacteremia, [*2]a respiratory infection, and MRSA. Healso developed a sacral decubitis ulcer, which had progressed to stage III by October 26,2006. The decedent had a feeding tube inserted the day before.
The decedent was admitted to the defendant Long Beach Memorial Nursing Home,Inc., doing business as The Komanoff Center for Geriatric and Rehabilitative Medicine(hereinafter Komanoff) on November 3, 2006, with a diagnosis of a fractured vertebralcolumn, with symptoms involving his digestive system. According to Komanoff'srecords, the decedent's sacral ulcer was stage III on November 8, 2006—a deepcrater involving the fat layer. By November 15, 2006, it had progressed to stageIV—a crater involving muscle and/or bone, with necrotic tissue.
The decedent was transferred from Komanoff to the defendant Long Beach MedicalCenter on January 29, 2007, with diagnoses of urosepsis, proteus, clostridium difficilecolitis, and sacral decubitus, grade 4. The decedent was started on intravenous fluids,antibiotics, and a decubitus ulcer protocol.
The decedent was transferred to nonparty Grandell Rehabilitation and NursingCenter on February 9, 2007. He died on February 12, 2007. The death certificate listedthe causes of death as cardiorespiratory failure, diabetes mellitus, and hypertension.
The plaintiffs, on behalf of the decedent, thereafter commenced this action to recoverdamages for medical malpractice, violation of the Public Health Law, and wrongfuldeath. The defendants all separately moved for summary judgment dismissing thecomplaint insofar as asserted against each of them.
In an order entered February 14, 2013, the Supreme Court, Queens County(O'Donoghue, J.), granted the motions. In a judgment entered June 4, 2013, thecomplaint was dismissed in its entirety.
"In order to establish liability for medical malpractice, a plaintiff must prove that thedefendant deviated or departed from accepted community standards of practice and thatsuch departure was a proximate cause of the plaintiff's injuries. On a motion for summaryjudgment, a defendant has the burden of establishing the absence of any departure fromgood and accepted medical practice or that the plaintiff was not injured thereby" (Leavy v Merriam, 133 AD3d636, 637 [2015] [citations omitted]; see Alvarez v Prospect Hosp., 68 NY2d320 [1986]; Nichols vStamer, 49 AD3d 832 [2008]). "Expert testimony is necessary to prove adeviation from accepted standards of medical care and to establish proximate cause"(Lyons v McCauley, 252 AD2d 516, 517 [1998], citing Koehler vSchwartz, 48 NY2d 807 [1979]).
Here, the defendants all established their respective prima facie entitlement tojudgment as a matter of law dismissing the medical malpractice and wrongful deathcauses of action insofar as asserted against them by submitting the affirmations of expertphysicians, who stated, among other things, that the decedent's sacral ulcer wasinevitable considering his neck fracture, his uncontrolled diabetes, his nutritionaldifficulties, and his aspirational pneumonia. The experts further noted that the sacralulcer did not contribute to the decedent's death.
The affirmation of an expert physician submitted by the plaintiffs in opposition to themotions, failed to address these issues. The affidavit of a registered nurse, also submittedby the plaintiffs in opposition, was insufficient to raise a triable issue of fact, since thenurse was not a medical doctor and lacked the qualifications to render a medical opinionas to the relevant standard of care, and whether the defendants deviated from suchstandard (see Elliot v Long Is.Home, Ltd., 12 AD3d 481, 482 [2004]). Therefore, the Supreme Court properlygranted those branches of each of the defendants' motions which were for summaryjudgment dismissing the medical malpractice and wrongful death causes of action insofaras asserted against each of them.
The Supreme Court also properly granted those branches of each of the defendants'motions which were for summary judgment dismissing the Public Health Law cause ofaction insofar as asserted against each of them. Since Public Health Law§ 2801-d only applies to nursing homes, it only applies to Komanoff in thiscase (see generally Doe v Westfall Health Care Ctr., 303 AD2d [*3]102, 109 [2002]; Randone v State of New York, 30 Misc 3d 335 [Ct Cl2010]). The basis for liability under the statute "is neither deviation from acceptedstandards of medical practice nor breach of a duty of care. Rather, it contemplates injuryto the patient caused by the deprivation of a right conferred by contract, statute,regulation, code or rule" (Zeides v Hebrew Home for Aged at Riverdale, 300AD2d 178, 179 [2002]). Here, the affirmation of an expert physician established, primafacie, that Komanoff did not violate any contract, statute, regulation, code or rule, andthat the decedent was not injured by any such violation.
In opposition, the plaintiffs submitted the affidavit of a registered nurse. However,the opinion of the nurse was conclusory, as it failed to identify any specific action orinaction by Komanoff that violated a regulation and led to the decedent's injury (see generally DiGeronimo vFuchs, 101 AD3d 933, 936 [2012]).
The plaintiffs' remaining contentions are without merit. Chambers, J.P., Hall, Austinand Barros, JJ., concur.