Eckert v. Gold Spring Hills Ctr. for Nursing & Rehab.

• Decision Date: 09 November 2020
• Docket Number: Index 612826/18
• Citation: Eckert v. Gold Spring Hills Ctr. for Nursing & Rehab., 2020 NY Slip Op 34728(U), Index 612826/18 (N.Y. Sup. Ct. Nov 09, 2020)
• Court: New York Supreme Court
• Parties: NANCY E. ECKERT, Individually, and as Administratrix of the Last Goods, Chattels, and Credits of GERARD E. MCGINNIS a/k/a JERRY MCGINNIS, deceased, Plaintiff, v. GOLD SPRING HILLS CENTER FOR NURSING & REHABILITATION and PLAINVIEW HOSPITAL NORTHWELL HEALTH, Defendants.

2020 NY Slip Op 34728(U)

NANCY E. ECKERT, Individually, and as Administratrix of the Last Goods, Chattels, and Credits of GERARD E. MCGINNIS a/k/a JERRY MCGINNIS, deceased, Plaintiff, v. GOLD SPRING HILLS CENTER FOR NURSING & REHABILITATION and PLAINVIEW HOSPITAL NORTHWELL HEALTH, Defendants.

Index No. 612826/18

Supreme Court, Nassau County

November 9, 2020

Unpublished Opinion

Motion Date: 08/26/2020.

PRESENT: HON. DENISE L. SHER, Acting Supreme Court Justice.

SHORT FORM ORDER

DENISE L. SHER, A.J.S.C.

The following papers have beep read on this motion:

Papers Numbered

Notice of Motion, Affirmations and Exhibits 1

Affirmation in Opposition to Motion and Exhibits 2

Reply Affirmation to Motion and Exhibits 3

Upon the foregoing papers, it is ordered that the motion is decided as follows:

Defendant Plainview Hospital i/s/h/a Plainview Hospital Northwell Health ("Plainview Hospital") moves, pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs Verified Complaint as against it severing it from this action and deleting it from the caption. Plaintiff opposes the motion.

Plaintiff commenced the instant medical malpractice action with the filing Of a Summons and Verified Complaint on or about September; 21, 2018. See Defendant Plainview Hospital's Affirmation in Support Exhibit A. Issue was joined by defendant Plainview Hospital on or about October 15, 2018. See Defendant Plainview Hospital's Affirmation in Support Exhibit B.

In support of defendant Plainview Hospital's motion (Seq No. 01), its counsel asserts, in pertinent part, that "[i]n this medical malpractice action, the plaintiff alleges that the decedent (her father) was negligently treated by the defendants during a course of treatment between February and March 2018, leading to his premature expiration on April 6, 2018. More specifically, the plaintiff claims that PLAINVIEW HOSPITAL allowed the decedent to develop a pressure ulcer during a February 2018 hospitalization, ; Which subsequently Worsened and purportedly hastened his demise. As detailed below and in the annexed affirmation of board-certified geriatrician/wound care physician Jeffrey Levine, M.D., PLAINVIEW HOSPITAL did not depart from accepted standards of care at any time. When the decedent's pressure ulcer was identified during the February 2018 admission, PLAINVIEW HOSPITAL appropriately treated the ulcer, and it was small at the time of discharge. When the decedent was re-hospitalized in March 2018 for a blood transfusion, the pressure ulcer was properly treated medically and surgically, Moreover, no aspect of PLAINVIEW HOSPITAL'S treatment caused or contributed to the decedent's expiration. His years of uncontrolled diabetes and metastatic prostate cancer, among other significant comorbidities, meant that the development of an ulcer was unavoidable and its healing impossible. As Such, because the plaintiff will not be able to carry her burden of proof at trial, PLAINVIEW HOSPITAL respectfully submits that it (sic) entitled to summary judgment in its favor.... In sum and substance, the plaintiff alleged that PLAINVIEW HOSPITAL departed from the standard of care by falsifying records, failing to prevent the decedent from developing pressure wounds, failing to order appropriate consultations, and failing to treat the pressure wounds appropriately once appreciated. She further alleged that, as a result of these purported departures, the defendants hastened the decedent's demise" See Defendant Plainview Hospital's Affirmation in Support Exhibits C and D.

In further support of the motion, defendant Plainview Hospital submits the transcripts from the Examination Before Trial ("EBT") testimonies of plaintiff, BSN Sutantar Dias, who testified on behalf of defendant Cold Spring Hills, and RN Siny Koshy, who testified on behalf of defendant Plainview Hospital, and me Expert Affirmation of Jeffrey M. Levine, M.D., A.G.S.F., C.MD, C.W.S.-P. ("Dr. Levine"). See Defendant Plainview Hospital's Affirmation in Support Exhibits E-G; Defendant Plainview Hospital's Expert Affirmation.

Counsel for defendant Plainview Hospital asserts, in pertinent part that, “[t]he plaintiff alleges that PLAINVIEW HOSPITAL departed from the standard of care by failing to prevent the formation of her father's bedsores and failing to appropriately treat them once appreciated.... She also baselessly asserted that PLAINVIEW HOSPITAL deliberately 'falsified' records without any specifics.... However, as wound care expert Dr. Levine explained, these allegations are completely without merit. As Dr. Levine opined, the standard of care required PLAINVIEW HOSPITAL to implement pressure wound prevention measures, which include turning and positioning, the use of pressure pads, heel elevation, maintaining skin dryness, the use of pressure-dispersing mattresses, and nutrition monitoring. In addition, when pressure wounds were appreciated, the standard of care required PLAINVIEW HOSPITAL to treat them with dressings, medication, further prevention measures, and, if necessary, surgery.... In the case at bar, there can be no credible dispute that PLAINVIEW HOSPITAL'S care and treatment was (sic) within the standard of care at all times. As the medical records demonstrate, the decedent's pressure wound was appreciated by PLAINVIEW HOSPITAL RN Abraham on February15, 2018 at approximately 01:30 in tie morning.... Thereafter, as the medical records, Dr. LeVine, and PLAINVIEW HOSPITAL deposition witness RN Siny Koshy evidence, pressure wound prevention and treatment measures were implemented the same day and every day of the remainder of that admission. Such measures included turning and positioning, heel elevation, pressure pads, pressure mattresses, topical medication, maintaining skin dryness, and nutrition consultations. These measures were clearly effective, as the decedent's sacral pressure ulcer measured only 1.5cm x 1.0cm when he was transferred from PLAINVIEW HOSPITAL to COLD SPRING on February 26, 2018.... When the decedent was transferred to PLAINVIEW HOSPITAL from COLD SPRING on March 21, 2018 for a blood transfusion, there was no doubt that PLAINVIEW HOSPITAL was aware of the decedent's sacral pressure wound on admission. As the medical records and Dr. Levine's affirmation indicate, the same pressure prevention and treatment measures that were employed during the February 2018 hospitalization were utilized during the March 2018 admission.... Moreover, general surgeon Dr. Brett Keck performed surgical debridements of the sacral wound on both March 25 and 28, 2018., . . While the treatment may not have resulted in the same positive: Outcome as during the February 2018 admission, it does not change the fact that the correct measures were taken. The fact that the decedent was already in terminal decline and that his ulcer had no chance of healing was due to factors that arose before the decedent's initial February 2018 admission and were completely outside of PLAINVIEW HOSPITAL'S control, ... Finally, PLAINVIEW HOSPITAL must emphasize that the plaintiff bears the burden of proof, and she has submitted absolutely no evidence whatsoever to support her utterly spurious allegation that PLAINVIEW HOSPITAL staff 'falsified' records. Of course, the plaintiff-failed to describe this supposed instance of record falsification with any specificity in her supplemental verified bill of particulars, likely because she is aware that it is without merit. PLAINVIEW HOSPITAL acknowledges that its records indicate that on February 14, 2018, at or about 21:58, the decedent arrived at the ED without any integumentary compromise, but less than four (4) hours later, on February 15, 2018 at or about 01:30, it is noted that the decedent had pressure ulcer.., . Although unclear because of the plaintiff s vague bills of particulars, PLAINVIEW HOSPITAL must assume that the plaintiff claims in this issue constitutes 'falsification' of records. However, her position holds no water. The plaintiff has not provided any evidence demonstrating that the decedent's ulcer could not have formed within the four (4) hours between his arrival at the ED and the first note describing his pressure wound. In addition, even if PLAINVIEW HOSPITAL stipulated that these are erroneous arguendo, a point not conceded, the plaintiff has not submitted any evidence demonstrating that this was due to 'falsification' rather than mere human error. Furthermore, the plaintiff cannot submit any evidence showing that this four (4) hour gap was material. As stated above, Dr. Levine explained, and the medical records demonstrate, that PLAINVIEW HOSPITAL implemented pressure wound treatment and prevention protocols every day of the decedent's February 2018 admission.. . The records show that measures such as turning and positioning, topical medications; pressure point padding, and skin dryness maintenance were employed starting on February 15, 2018, the first fall day of the decedent's February 2018 admission.... Dr. Levine affirmed that this alleged discrepancy would not change his opinion that PLAINVIEW HOSPITAL'S treatment conformed to accepted standards of practice at all times.... Therefore, even if the plaintiffs allegation that PLAINVIEW HOSPITAL'S records show a discrepancy is accepted arguendo, a point vehemently contested, it does not constitute an issue of material fact sufficient to preclude summary relief in favor of PLAINVIEW HOSPITAL, As such, because the plaintiff will not he able to show any departures from the standard of care, PLAINVIEW HOSPITAL respectfully submits that it should be granted summary judgment," See Defendant Plainview Hospital's Affirmation in Support Exhibits C, D, L and N; Defendant Plainview Hospital's Expert Affirmation....