Halpern v. Rosalind & Joseph Gurwin Jewish Geriatric Ctr. of Long Island
| Decision Date | 15 April 2019 |
| Docket Number | Index 602454/2017 |
| Citation | 2019 NY Slip Op 34563 (U) |
| Court | New York Supreme Court |
| Parties | BARBARA L. HALPERN, as the Administratrix of the Estate of Norman J. Halpern, decedent, Plaintiff, v. ROSALIND & JOSEPH GURWIN JEWISH GERIATRIC CENTER OF LONG ISLAND, INC. & ELLIOTT GROSSMAN, M.D., Defendants. Mot Seq 001 MG, 002, 003 MD RTC Mot Seq 004 MG |
Unpublished Opinion
Motions Submit Date: 08/23/18.
Mots Conf Date: 08/16/18.
PLAINTIFF'S COUNSEL: Edward R. Young & Associates.
DEFENDANTS' COUNSEL: Vaslas Lepowsky Hauss Danke, LLP Fumuso Kelly Swart Farrell Polin Cliristensen LLP.
PRESENT: HON. WILLIAM G. FORD, JUSTICE OF THE SUPREME COURT.
SHORT FORM ORDER
In this electronically filed medical malpractice action, concerning the various motions pending before the Court: defendant's motion to strike plaintiffs notice to admit & for a protective order pursuant to CPLR3103 & 3123(a); plaintiff s motion & cross-motion for partial summary judgment on liability pursuant to CPLR 3212(a); and defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(5) & 3211(a)(7), the following papers were considered: NYSCEF Docket Entries ## 17 -21; 23 - 33; 34 - 47; 50 - 62; 64 - 71; 72 - 75; and upon due deliberation and full consideration consideration of all of the foregoing, it is
ORDERED that the parties' various motions are hereby consolidated for the purposes of judicial economy; and it is further
ORDERED that defendant's motion pursuant to CPLR 3103 & 3123 for a protective order and order to strike plaintiffs notice to admit is granted for the following reasons; and it is further
ORDERED that plaintiffs motion & cross-motion pursuant to CPLR 3212 for partial summary judgment on liability on her third cause of action for medical malpractice/lack of informed consent are denied as set forth below; and it is further
ORDERED that defendant's motion to dismiss plaintiffs complaint, hereby deemed to be a motion to dismiss the complaint for failure to state a claim pursuant to CLR 3211(a)(7) for reasons more fully explained below and for untimeliness under CPLR 3211(a)(5), is granted as follows; and it is further accordingly
ORDERED that the third cause of action in plaintiffs complaint is hereby dismissed; and it is further
ORDERED that plaintiffs counsel serve a copy of this decision and order with notice of entry on counsel for plaintiff by electronic filing forthwith; and it is further
ORDERED that, if applicable, within 30 days of the entry of this decision and order, that defendant's counsel is also hereby directed to give notice to the Suffolk County Clerk as required by CPLR 8019(c) with a copy of this decision and order and pay any fees should any be required; and it is further
ORDERED that counsel for the parties are hereby directed to appear for a discovery compliance conference before this Court for purposes of entering into a new binding discovery schedule for the completion of all pretrial disclosure on May 30, 2019 at 10:00 a.m.
As relevant to the pending applications, this action can be summarized in the follow fashion. Plaintiff Barbara Halpern by her complaint brought this action against defendants Gurwin Nursing Home and surgeon Elliott Grossman, M.D. alleging wrongful death of their patient, her husband Norman Halpern, as well as seeking recovery for medical malpractice premised on lack of informed consent for a bedside surgical debridement of a decubitus ulcer, and nursing home negligence violative of Public Health Law.
This action arises out of plaintiff s decedent's death on November 3, 2015. Prior to his passing, since December 19, 2012, decedent was a resident patient in defendant's skilled nursing facility and in their hospice protocol with diagnoses of diabetes, congestive heart disease and failure, pneumonia, and dementia. Due to his dementia, decedent had in place healthcare proxies naming inter alia plaintiff his wife and his daughter Debra Votta.
On or around October 27, 2015, while residing at defendant's facility, decedent developed a bedsore on his right buttock which became infected and required treatment and care by his primary care physician and defendant's nursing staff. During the course of their topical wound care treatment regimen of decedent's wound, chemical enzymatic debriding agents were applied until such time that decedent's wound became infected, with nursing staff observing a foul odor emanating from decedent's wound. Decedent was then prescribed a course of antibiotics to deal with the infection due to a suspected MRSA infection without success. Due to decedent's infection, the nursing home sought a surgical consult with defendant Grossman. At this time, it was clear to defendant's that decedent's healthcare proxies, plaintiff and his daughter Votta, had expressly declined and refused consent for any surgical procedure such as a debridement. This appears partly due to the fact that the proxies both sought conservative treatment for decedent who was at that time prescribed Coumadin, a blood thinner.
Despite noting and acknowledging the proxies wishes for decedent's care, on November 3, 2015, after conducting a surgical consult on decedent, Grossman performed a bedside debridement of decedent's wound, described as removal of necrotic eschar covering the wound.
After the procedure, decedent's plan of care was updated to hold off his Coumadin prescription for 3 days and to receive vitamin K as a countermeasure. Subsequently, defendant's staff made mixed observations with doctors and staff making varying observations of oozing or bleeding from decedent's wound. At some point thereafter, it became obvious to staff that decedent had been suffering persistent bleeding from the wound. Additional to observation of bleeding, defendant's staff also noticed decedent appeared blotchy and mottled on his stomach and legs. Defendants then sought consent, which was obtained from the proxies for a hospitalization at St. Catherine's Hospital. Shortly after his presentation to the emergency room, decedent was found to have no electrical activity in his heart and was pronounced dead, as a DNR was present in his medical chart.
As plead in the complaint and implicated in the motions presently pending, plaintiff seeks recovery and now judgment as a matter of law on the third cause of action for lack of informed consent for the bedside debridement. Plaintiffs theory is that defendants noted and acknowledged that decedent's proxies expressly rejected consent for the procedure, and further that it was contraindicated for a patient like the decedent on Coumadin. Thus, plaintiff argues that proceeding with the procedure absent informed consent constituted medical malpractice, a departure from good and accepted medical practice, which proximately caused decedent's death. On this point, plaintiff alleges that Grossman's debridement of the defendant resulted in persistent bleeding with caused cardiac arrest and death.
I. The Parties' Various Applications
Taking each motion in turn, first comes defendant's motion for a protective order and to strike a notice to admit dated July 13, 2017 wherein plaintiff seeks admissions or concession by defendants that no surgical consent for decedent's bedside debridement existed in the chart or file. Relying on CPLR 3103 and 3123(a), defendant seeks to strike the notice to admit as improper, seeking an admission on a material or significant ultimate issue of fact for the factfinder's determination in this matter. Further, defendants oppose the discovery demand arguing that pretrial disclosure, to include depositions, has not yet completed. Defendants then contend that under the law plaintiff cannot pick and choose to substitute routine and ordinary discovery via the notice to admit. Plaintiff opposes the motion denying that it seeks a concession of an ultimate fact. Here, plaintiff claims that while the presence or absence of the consent may be significant or outcome determinative on the lack of consent claim, it merely seeks confirmation of a plain fact. Both parties agree that the record evidence produced thus far in discovery include defendant's progress notes which appear to acknowledge that decedent's proxies declined consent for the bedside debridement.
Generally, under CPLR § 3103(a) court may issue a protective order" 'denying, limiting, conditioning or regulating the use of any disclosure device' to 'prevent unreasonable annoyance, expense embarrassment, disadvantage, or other prejudice to any person or the courts' "(Nimkoff v Cent. Park Plaza Assoc, LLC, 123 A.D.3d 679, 680-81, 997 N.Y.S.2d 698, 699 [2d Dept 2014]).
Further, it is settled that a court has discretion to limit disclosure and issue a protective order (Accent Collections, Inc. v Cappelli Enters., Inc., 84 A.D.3d 1283, 924 N.Y.S.2d 545 [2d Dept 2011]). The burden of showing that discovery is improper is upon the party asserting it (Koump v Smith, 25 N.Y.2d 297 [1969]; Bombard v Arnica Mut. Ins. Co., 11 A.D.3d 647, 783 N.Y.S.2d 85 [2d Dept 2004]).
CPLR 3123(a) authorizes the service of a notice to admit upon a party, and provides that if a timely response thereto is not served, the contents of the notice are deemed admitted . However, the purpose of a notice to admit is only to eliminate from contention those matters which are not in dispute in the litigation and which may be readily disposed of. Further, a notice to admit is not to be employed to obtain information in lieu of other disclosure devices, or to compel admissions of fundamental and material issues or contested ultimate facts (32nd Ave. LLC v Angela Holding Corp., 134 A.D.3d 696, 698, 20 N.Y.S.3d 420, 422 ...
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