Giandana v. Providence Home

• Citation: 2006 NY Slip Op 04189,32 A.D.3d 126,815 N.Y.S.2d 526
• Decision Date: 30 May 2006
• Docket Number: 6896.
• Parties: NANCY GIANDANA, Individually and as Administratrix of the Estate of ANNA E. DEMUTH, Deceased, Respondent, v. PROVIDENCE REST NURSING HOME et al., Defendants. PROVIDENCE REST NURSING HOME, Third-Party Plaintiff, v. RAMAR SERVICES, INC. Third-Party Defendant, and BECKY AKOSAH, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

32 A.D.3d 126

815 N.Y.S.2d 526

2006 NY Slip Op 04189

NANCY GIANDANA, Individually and as Administratrix of the Estate of ANNA E. DEMUTH, Deceased, Respondent, v. PROVIDENCE REST NURSING HOME et al., Defendants.

PROVIDENCE REST NURSING HOME, Third-Party Plaintiff, v. RAMAR SERVICES, INC. Third-Party Defendant, and BECKY AKOSAH, Third-Party Defendant-Appellant.

6896.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 30, 2006.

Fiedelman & McGaw, Jericho (James K. O'Sullivan of counsel), and Law Offices of Alan I. Lamer, Elmsford, for appellant.

Marshall E. Bloomfield, Bronx (Michael P. Bloomfield of counsel), for respondent.

OPINION OF THE COURT

MAZZARELLI, J.

Anna E. Demuth, 91 years old at the time and now deceased, was a patient at the Providence Rest Nursing Home. At some time between 11:00 P.M. on Monday, October 25 and 7:00 A.M. on Tuesday, October 26, 1999, she sustained a fractured femur and multiple bruises to her extremities. These injuries allegedly occurred either while she was being transferred from her bed to a wheelchair, or from the wheelchair to the shower.

An "Accountability Book" was maintained by Providence Rest. This book contained patient charts with details of the specific treatment protocol for each of the residents. Ms. Demuth's chart indicates that she was considered a "high risk" patient, who required the highest level of assistance. She had "impaired mobility, balance, unstable gait, CVA,[¹] and Parkinson's disease." A box was checked on her chart in the Accountability Book indicating that "two people and/or a lifter"² were required any time she was moved or transferred from one place to another.

Monica English was a licensed practical nurse employed by defendant Providence Rest. She was working the 11:00 P.M to 7:00 A.M. shift on the day Ms. Demuth was injured. Becky Akosah, a certified nurse's assistant employed by defendant Health Care Professionals, Inc., was also on duty that morning and she had been assigned to assist Ms. Demuth. Veronica Douglas, LPN, Nancy Fitzgerald, RN, and Eleanor Flanagan, RN were three nurses employed by Providence Rest who participated in the nursing home investigation of Ms. Demuth's injury. Ms. Fitzgerald also prepared a report of the incident for defendant Providence Rest.

Plaintiff commenced this action against Providence Rest and Health Care Professionals, Inc. The nursing home then brought a third-party action against Ms. Akosah and Ramar Services. Defendant Health Care Professionals was the agency through which Ms. Akosah and other nurses aides were provided to Providence Rest. Ramar Services is the payroll company for Health Care Professionals.

Plaintiff moved for summary judgment in the main action, arguing that the nursing home was negligent for violating its own protocol as set forth in its Accountability Book. Specifically, plaintiff asserted that Providence Rest was negligent by allowing Akosah to move Ms. Demuth without the necessary assistance, and that this negligence was the proximate cause of her injuries.

Plaintiff presented a New York State Department of Health (DOH) report, signed by Eleanor Flanagan. That report stated:

"On Tuesday, October 26, 1999, LPN Veronica Douglas came on duty at 7:00 am and heard [Ms. Demuth] calling for the nurse. Ms. Douglas responded immediately. The resident was in her wheelchair and stated that she had fallen. The CNA [Akosah] was transferring her from bed to chair and had fallen on top of her. The resident was now experiencing severe pain. Ms. Douglas notified the Day Clinical Coordinator and an investigation was begun . . . . My findings of the event in the fall of resident Anna Demuth, who sustained a fracture of the femur and multiple bruises to the upper and lower right extremities, are that Becky Akosah, who was assigned to the resident and showered her, dropped her. The care of Anna Demuth by CNA Becky Akosah resulted in negligence to the resident."

Plaintiff also quoted a statement by Ms. Fitzgerald, who made a "nurse's bedside report" on the date of the incident, and who prepared a report for Providence Rest in connection with its investigation of the incident. In both documents, Fitzgerald recounts "I was called to 2GM by Ms. V. Douglas. She came into the Nursing Office and stated, `Ms. Fitzgerald, you have to come to 2GM to hear what Ms. Demuth is saying. She said she thinks her leg is broken.' I went to 2GM immediately and Ms. Demuth was sitting in [a] wheel chair in [the] hallway, just beyond the desk. She told me when I asked her what was wrong that she thought her leg was broken and I asked what happened, she stated I have so much pain in my right leg. The girl fell on me, she pointed to the area of her leg which she stated was so painful. The other nurses, Ms. Douglas, Ms. English, assisted me to get the resident out of the wheel chair back in her bed with very easy careful movements."

In support of the motion, plaintiff provided the original and amended complaints and answers. She also submitted evidence which had been collected as part of Providence Rest's investigation of the incident.

On one of its forms, Providence Rest had asked Ms. Akosah to respond to Ms. Demuth's allegation that "She fell on [Demuth] when trying to take her out of bed." Ms. Akosah described the incident as follows:

"I had to give her shower [sic] so I went for the chair and put it right to the end of the bed on the left side. I asked her whether she could stand and she replied yes so I swung her on the bed into a sitting position and went to get her head and shoulders. I asked her to hold on to my waist and put [illegible] in between hers. But then she told me she couldn't make it to the chair so I swung back on the bed to get help to put her on the chair. Then, the nurse came in and I asked her to help me put her in the chair of which we did. But I realize there was blood on the sheet the nurse ask me where that was from. I checked the chair and realize the blood was from the elbow. I took her to the shower room and gave her a shower. Then I asked her to hold to onto [sic] the rail to get the shower chair of [sic] and put her wheelchair. She complained of pain in the hip I asked her to relax so that we tried again. The second time she stood and I put her in the wheelchair. She complained of pain in her hip when I was trying to put on the chair I and [illegible] to get the doctor."

A DOH report sent to Providence Rest and Ms. Akosah was also annexed to plaintiff's motion. In that report, an attorney at DOH concluded that Ms. Akosah had violated Public Health Law § 2803-d.³ Plaintiff also submitted the deposition testimony of Ms. English. English testified that when Ms. Akosah came on duty at 6:00 A.M., she gave Akosah those charts from the Accountability Book pertaining to the patients to which Akosah had been assigned. One of those charts contained instructions for Ms. Demuth's care. Ms. English also stated that she told Akosah that if she had any questions, she should ask for help. English related that:

"At approximately 7:15 on that morning, incoming nurse reported to me that Ms. Demuth had called her and told her that someone had dropped her and fell on top of her and asked me if I knew anything about it. My reply was `No, that was not reported to me' . . . . [W]e assist[ed] [Demuth] back to bed. She was complaining of pain in her right hip."

Also included by plaintiff in support of the motion was a copy of Ms. Demuth's chart from the Accountability Book.

In opposition to summary judgment, Providence Rest submitted a staffing agreement between the nursing home and Health Care Professionals (HCP) and the deposition testimony of Vicki Ragin, an employee of HCP. These were to support its argument that Ms. Akosah was not an employee of the nursing home, and thus not someone for whose actions it could be held vicariously liable. These submissions established that HCP was an employment agency which placed individuals at nursing homes such as Providence Rest, and that it had sent Ms. Akosah to Providence Rest. Providence Rest also argued that Ms. Akosah had disregarded the nursing home's rules. It relied upon its Accountability Book, the DOH report, and Ms. English's deposition testimony to support this claim. The nursing home also referenced the Flanagan report and it submitted a copy of the third-party complaint and answer.

Providence Rest argued that there was insufficient evidence that it violated any internal rules. Alternatively, it claimed that if any alleged violation had occurred, breach of an internal guideline constituted only some evidence of negligence, not negligence per se. The nursing home asserted that because Akosah was an independent contractor, it was not liable for her actions.

Ms. Akosah also interposed an answer to plaintiff's motion for summary judgment against Providence Rest. She submitted her attorney's affirmation, in which her counsel stated that she is familiar with the facts and circumstances surrounding the action "by virtue of personal knowledge." However, counsel never explained how she gained this "personal knowledge." Her counsel also disavowed both the authenticity and the truth of Ms. Akosah's statement submitted by plaintiff. Counsel stated that there are issues of fact as to the happening of the accident, without further specification. Ms. Akosah herself did not submit any affidavit detailing her recollection of the incident or posing any explanation for Ms. Demuth's injuries. Akosah's counsel also argued that most of plaintiff's submissions were inadmissible hearsay. She asserted that if Akosah's statement made in the nursing home's investigation of the incident were considered a "party admission" against the nursing home, there was nothing in the statement that implicated Ms. Akosah personally. The IAS court granted plaintiff's motion for summary judgment on liability against the nursing home. We affirm.

The...