Kaffl v. Glen Cove Hosp.

• Decision Date: 21 March 2019
• Docket Number: Index 606346/14
• Citation: 2019 NY Slip Op 34348 (U)
• Parties: GEORGE KAFFL and DOROTHY KAFFL, Plaintiffs, v. GLEN COVE HOSPITAL, ELENA BELKIN, M.D., GLENGARIFF HEALTHCARE CENTER, WINTHROP UNIVERSITY HOSPITAL and NORTH SHORE UNIVERSITY HOSPITAL, Defendants. Motion Seq. Nos. 06, 07, 08
• Court: New York Supreme Court

2019 NY Slip Op 34348(U)

GEORGE KAFFL and DOROTHY KAFFL, Plaintiffs,
v.
GLEN COVE HOSPITAL, ELENA BELKIN, M.D., GLENGARIFF HEALTHCARE CENTER, WINTHROP UNIVERSITY HOSPITAL and NORTH SHORE UNIVERSITY HOSPITAL, Defendants.

Motion Seq. Nos. 06, 07, 08

Index No. 606346/14

Supreme Court, Nassau County

March 21, 2019

Unpublished Opinion

Dates: 10/15/18 10/15/18 10/22/18

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

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

The following papers have been read on these motions:

Papers Numbered
Notice of Motion (Seq. No. 06), Affirmations and Exhibits	1
Notice of Motion (Seq. No. 07). Affirmation and Exhibits	2
Notice of Motion (Seq. No. 08). Affirmation and Exhibits	3
Affirmation in Opposition to Motions (Seq. Nos. 06 and 07) and Exhibits	4
Affirmation in Reply to Motion ('Seq. No. 06)	5
Affirmation in Reply to Motion (Seq. No. 07)	6
Reply Affirmation to Motion (Seq. No. 08)	7

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

Defendants Glen Cove Hospital ("Glen Cove"), Elena Belkin, M.D. ("Dr. Belkin") and North Shore University Hospital ("North Shore") move (Seq. No. 06), pursuant to CPLR § 3212(b), for an order granting summary judgment dismissing the Verified Complaint as against them; and move, pursuant to CPLR § 3211(a)(7), for an order dismissing the Verified Complaint as against them. Plaintiffs oppose the motion.

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Defendant Glengariff Healthcare Center ("Glengariff') moves (Seq. No. 07), pursuant to CPLR § 3212, for an order granting summary judgment dismissing the Verified Complaint as against it. Plaintiffs oppose the motion.

Defendant Winthrop University Hospital ("Winthrop") moves (Seq. No. 08), pursuant to CPLR § 3212, for an order dismissing the Verified Complaint as against it, and any and all cross-claims as against it. No opposition was submitted to this motion.

This is an action for medical malpractice and violation of the Public Health Law alleging the failure to properly and timely diagnose, treat and/or prevent the development and/or progression of a pressure ulcer on plaintiff George Kaffl's buttocks and the sequelae therefrom. Plaintiffs commenced the action with the filing of a Summons and Verified Complaint on or about November 25, 2014. See Defendants Glen Cove, Dr. Belkin and North Shore's Affirmation in Support Exhibit A. Issue was joined by defendants Glen Cove, Dr. Belkin and North Shore on or about January 22, 2015. See Defendants Glen Cove, Dr. Belkin and North Shore's Affirmation in Support Exhibit B. Issue was joined by defendant Glengariff on or about May 7, 2015. See Defendant Glengariff s Affirmation in Support Exhibit C. Issue was joined by defendant Winthrop on or about December 18, 2014. See Defendant Winthrop's Affirmation in Support Exhibit A.

In support of defendants Glen Cove, Dr. Belkin and North Shore's motion (Seq. No. 06), their counsel submits, in pertinent part, that, "[a]s outlined in more detail in the Affidavit of [non-party Heidi Huddleston Cross, R.N., M.S.N., FNP-BC, CWON], the plaintiff [George Kaffl] was admitted to NSUH on March 13, 2013, for inter alia, fever and abdominal pain. At NSUH, he had surgery and later developed lower extremity weakness and incontinence. The

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plaintiff remained at NSUH until April 23, 2013, when he was transferred to the GLEN COVE HOSPITAL Rehabilitation ('GCHR') unit. The plaintiff was at GCHR until May 2, 2013, when he was transferred to the GLEN COVE HOSPITAL ('GCH') medical unit until May 8, 2013 for suspected sepsis. The plaintiff was then at GCHR from May 8, 2013 until June 6, 2013. On June 6, 2013, the plaintiff was transferred to GLENGARRIF (sic) HEALTHCARE CENTER where he remained until June 29, 2013. On June 29, 2013, the plaintiff returned to GCH (medical unit) for a urinary tract infection and underwent surgical debridement of a sacral ulcer. Thereafter, he returned to GLENGARRIF (sic). As per the bills of particulars, the dates of negligence vis-a-vis NSUH are March 13, 2013 to April 23, 2013.... By comparison, the dates of negligence with respect to GCH are April 23, 2013 to June 6, 2013 ... and for Dr. Belkin April 23, 2013 to June 6, 2013 and June 29, 2013 to July 11, 2013.... In the bill of particulars and amended bill of particulars as to NSUH, it is alleged, inter alia, that NSUH departed from the following accepted standards of care while treating the plaintiff. As a result, the plaintiff suffered, inter alia, the following injuries: pressure ulcers of the right and left buttocks, osteomyelitis of the sacrum, sepsis, necrotic sacral ulcer and stage IV sacral pressure ulcer with exposed bone. The plaintiff made similar allegations against GCH and DR. BELKIN." See Defendants Glen Cove, Dr. Belkin and North Shore's Affirmation in Support Exhibits C-H and Y.

Counsel for defendants Glen Cove, Dr. Belkin and North Shore further contends, in pertinent part, that, "[h]erein, the affidavit of Nurse Cross fully supports the moving defendants' position that they are entitled to summary judgment and/or dismissal... as to all of plaintiffs (sic) cause (sic) of action. More specifically, therein, the expert opines, inter alia, that the care provided to the plaintiff by the moving defendants was timely, proper, and not a cause of

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injury. In fact, the expert opines (sic) the plaintiffs skin breakdown was unavoidable due to his comorbidities. Thus, summary judgment should be granted since the moving defendants have made aprima facie showing of entitlement to summary judgment by demonstrating compliance with the standard of care, no injury, and no proximate cause of injury, [citations omitted], Inasmuch as Nurse Cross has refuted, inter alia, proximate cause, not only are NSUH and GCH entitled to summary judgment so, too, is Dr. Belkin [citations omitted]. As an aside, NSUH submits it cannot be vicariously liable for Dr. Belkin since there is no evidence Dr. Belkin treated the plaintiff at NSUH nor was such alleged. Similarly, GCH asserts it is not vicariously liable for Dr. Belkin since plaintiff failed to specifically allege such [citation omitted]." See Defendants Glen Cove, Dr. Belkin and North Shore's Affirmation in Support Exhibit Y.

Counsel for defendants Glen Cove, Dr. Belkin and North Shore also argues, in pertinent part, that, "[w]ith respect to plaintiffs cause of action premised upon PHL § 2801-d, such cannot stand against any of the moving defendants because, inter alia, they are not 'residential health care facilities' for the purpose of the statute [citations omitted]. Indeed, New York Public Health Law section 2801-d is entitled 'Private actions by patients of residential health care facilities' and Public Health Law section 2801(3) defines a 'residential health care facility' as 'a nursing home or a facility providing health-related service'. Inasmuch as NSUH and GCH are hospitals ..., the plaintiffs cause of action premised upon PHL § 2801-d must be dismissed.... Furthermore, and importantly, that particular statute 'authorizes a private right of action for the violation of rights enumerated in section 2803-c of the statute' [citation omitted]. However, according to the Second Department, New York PHL § 2803-c does not provide a private right of action against hospitals and physicians such as NSUH, GCH, and Dr. Belkin, which is further reason to grant the instant application [citations omitted]. Accordingly, the moving defendants are entitled to

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summary judgment and/or dismissal based on existing precedent, [citations omitted]. Assuming, arguendo, that PHL § 2801-d applied to the moving defendants, the moving defendants have demonstrated their prima facie entitlement to summary judgment vis-a-vis said statute by way of, inter alia, the affidavit of Nurse Cross ... who has opined that the plaintiffs 'alleged injuries did not arise through any action or negligence of its employees' [citation omitted]." See id.

Counsel for defendants Glen Cove, Dr. Belkin and North Shore further contends, in pertinent part, that, "[i]n this matter, the plaintiffs (sic) lack of informed consent cause of action must be dismissed due to lack of proximate cause [citations omitted]. Moreover, the plaintiff has failed to identify any procedures by the moving defendants that were performed without informed consent and has not alleged any unconsented to affirmative violation of the plaintiffs physical integrity. In point of fact, the plaintiffs (sic) bills of particulars at para.4 ... are silent with respect to any overt acts by the moving defendants vis-a-vis skin integrity. Thus, dismissal and/or summary judgment are the proper remedies herein, [citation omitted]. To the extent nonparty Dr. Reid performed debridement surgery on the plaintiff in July, 2013, the moving defendants submit that the burden to obtain informed consent was on Dr. Reid, not the movants, and in any event, the hospital chart contained informed consent documents vis-a-vis Dr. Reid's procedures [citations omitted]. In addition, where a hospital has no reason to suspect malpractice, i.e., that the plaintiffs physician is acting without informed consent, the hospital has no duty to obtain a patient's informed consent [citation omitted]." See Defendants Glen Cove, Dr. Belkin and North Shore's Affirmation in Support Exhibits C-H and Y-Z.

Counsel for defendants Glen Cove, Dr. Belkin and North Shore also asserts, in pertinent part, that, "[i]n the present matter, the plaintiff claims that while at the defendants' hospitals, he suffered skin breakdown. Furthermore, the plaintiffs (sic) summons and complaint asserted

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causes of action for both negligence and medical malpractice, but the negligence cause of action is duplicative of the cause of action for medical malpractice and...