Rosario v. Our Lady of Consolation Nursing & Rehab. Care Ctr.

• Decision Date: 16 September 2020
• Docket Number: 2017-02919,Index No. 18180/11
• Citation: 186 A.D.3d 1426,128 N.Y.S.3d 906 (Mem)
• Parties: Roxanne ROSARIO, etc., respondent, v. OUR LADY OF CONSOLATION NURSING AND REHABILITATION CARE CENTER, et al., defendants, Imtiaz A. Khokhar, etc., appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1426

128 N.Y.S.3d 906 (Mem)

Roxanne ROSARIO, etc., respondent,

v. OUR LADY OF CONSOLATION NURSING AND REHABILITATION CARE CENTER, et al., defendants,Imtiaz A. Khokhar, etc., appellant.

2017-02919

Index No. 18180/11

Supreme Court, Appellate Division, Second Department, New York.

Argued - September 12, 2019

September 16, 2020

DECISION & ORDER

In an action to recover damages for medical malpractice, the defendant Imtiaz A. Khokhar appeals from an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated January 17, 2017. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On April 30, 2009, after suffering a fall at home, 70–year–old Martha Rosario (hereinafter the decedent) was admitted to Good Samaritan Hospital by her primary care physician, the defendant Imtiaz A. Khokhar, who had been her primary care physician for eight years. On May 11, 2009, the decedent was transferred to the defendant Our Lady of Consolation Nursing and Rehabilitation Care Center (hereinafter OLOC) for strengthening and physical rehabilitation. During her admission to OLOC the decedent's condition deteriorated. The decedent began to exhibit increased fatigue, developed pressure ulcers

and fever, experienced urinary and bowel incontinence and loss of appetite, and had periods of forgetfulness and confusion. She was discharged to Good Samaritan Hospital on May 30, 2009. There she was diagnosed with stage II pressure ulcers on her sacrum, an unstageable pressure ulcer on her buttocks, a left heel ulcer, a urinary tract infection with sepsis, hypotension, and pneumonia. On June 6, 2009, the decedent died at Good Samaritan Hospital. Her death certificate lists the immediate cause of death as cardiopulmonary arrest due to coronary artery disease and hypertension, with urosepsis as a significant contributing factor.

On June 2, 2011, the decedent's daughter Roxanne Rosario (hereinafter the plaintiff), as the administrator of the decedent's estate, commenced the instant medical malpractice action against, among others, OLOC and the Roman Catholic Diocese of Rockville Centre, Inc. (hereinafter together the OLOC defendants), and Khokhar, alleging that the decedent was injured as a result of medical malpractice committed during her admission to OLOC. At the completion of discovery, the OLOC defendants and Khokhar separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. By order dated January 17, 2017, the Supreme Court denied the motions. Khokhar appeals from so much of the order as denied his motion.

" ‘The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury’ " ( Hayden v. Gordon, 91 A.D.3d 819, 820, 937 N.Y.S.2d 299, quoting DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674 ). "A defendant moving for summary judgment in a medical malpractice case must demonstrate the absence of any material issues of fact with respect to at least one of these elements" ( DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 [internal quotation marks omitted]; see Hayden v. Gordon, 91 A.D.3d at 820–821, 937 N.Y.S.2d 299 ; Wexelbaum v. Jean, 80 A.D.3d 756, 757, 915 N.Y.S.2d 161 ). Where a defendant makes a prima facie showing on both elements, "the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact as to both the departure element and the causation element" ( Stukas v. Streiter, 83 A.D.3d 18, 25, 918 N.Y.S.2d 176 ). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" ( Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 ). On a motion for summary judgment, the party opposing the motion is entitled to every favorable inference that may be drawn from the pleadings and affidavits submitted by the parties (see Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385, 759 N.Y.S.2d 171 ).

Here, Khokhar established his prima facie entitlement to judgment as a matter of law by submitting an expert affirmation from a physician who opined, based on a review of the medical records, that the care and treatment rendered by Khokhar comported with good and accepted medical practices and was not proximately related to any injuries sustained by the decedent (see Forrest v. Tierney, 91 A.D.3d 707, 936 N.Y.S.2d 295 ; Graziano v. Cooling, 79 A.D.3d 803, 804, 913 N.Y.S.2d 302 ).

In opposition, the plaintiff submitted an affirmation from an expert which raised a triable issue of fact as to the nature of the physician/patient relationship between Khokhar and the decedent while she was at OLOC, specifically, whether Khokhar was still a treating physician of the decedent while she was at OLOC, since while she was there he performed a physical exam of her and did an assessment and plan which included orders for x-rays and a complete blood count

(see Omane v. Sambaziotis, 150 A.D.3d 1126, 1129, 55 N.Y.S.3d 345 ; Elmes v. Yelon, 140 A.D.3d 1009, 1011, 34 N.Y.S.3d 470 ; Nisanov v. Khulpateea, 137 A.D.3d 1091, 1094, 27 N.Y.S.3d 663 ). Further, and contrary to the assertion of our dissenting colleague, the affirmation of the plaintiff's expert, reasonably construed in a light most favorable to the plaintiff, was not speculative or conclusory, but rather sufficiently raised triable issues of fact as to whether Khokhar departed from accepted medical practice and whether his alleged departures were a proximate cause contributing to the decedent's death (see Joyner v. Middletown Med., P.C., 183 A.D.3d 593, 123 N.Y.S.3d 169 ; M.C. v. Huntington Hosp., 175 A.D.3d 578, 106 N.Y.S.3d 382 ). Our dissenting colleague appears to require the use of specific words by a party opposing a motion for summary judgment as opposed to the proper standard of viewing the totality of the submissions in a light most favorable to the non-moving party (see Pierre–Louis v. DeLonghi Am., Inc., 66 A.D.3d 859, 862, 887 N.Y.S.2d 628 ; Nicklas v. Tedlen Realty Corp., 305 A.D.2d at 386, 759 N.Y.S.2d 171 ). In any event, the words "reasonable" and "fair," in the context of the affirmation of the plaintiff's expert, are synonymous.

Accordingly, we agree with the Supreme Court's denial of Khokhar's motion for summary judgment dismissing the complaint insofar as asserted against him.

RIVERA, J.P., LEVENTHAL and IANNACCI, JJ., concur.

AUSTIN, J., dissents, and votes to reverse the order insofar as appealed from, on the law, and grant the motion of the defendant Imtiaz A. Khokhar for summary judgment dismissing the complaint insofar as asserted against him, with the following memorandum:

The majority's recitation of the facts in this case would lead the reader to believe that the defendant Imtiaz A. Khokhar was intimately involved in the ongoing treatment and care of the plaintiff's decedent, Martha Rosario (hereinafter the decedent), from the decedent's initial hospitalization at nonparty Good Samaritan Hospital (hereinafter the hospital) on April 30, 2009, until her death there on June 9, 2009. That is simply not the case.

Properly analyzed, the decedent's care over this period can best be understood in three distinct stages. In the first stage, the decedent was admitted to the hospital for observation as a result of a fall at home wherein she sustained neck trauma. At that time, Khokhar was the decedent's primary care physician, as noted on the hospital's admission paperwork. The decedent was treated at the hospital under Khokhar's care until May 11, 2009, when she was discharged.

The decedent's discharge summary, which was prepared by Khokhar, noted that during her hospitalization the decedent "developed swelling of her left lower extremity along with redness." As a result of an evaluation on May 5, 2009, by another doctor, Lenny Weinstein,¹ the decedent was treated with Clindamycin

and Bacid, intravenously and then orally. A wound care nurse attended to the decedent and applied a dressing. Such treatment was continued for the remainder of the decedent's stay at the hospital.

On May 11, 2009, upon the decedent being discharged from the hospital and Khokhar's care, she was admitted to a subacute rehabilitation facility, the defendant Our Lady of Consolation Nursing and Rehabilitation Care Center (hereinafter OLOC), for gait and strength training. The decedent's treatment plan anticipated that, after her stay at OLOC, the decedent could return home. This began the second stage of the decedent's care.

On her admission to OLOC, the decedent's primary care physician was Alice Kolasa. Throughout the decedent's admission to OLOC, Kolasa remained her primary care physician, even though other physicians examined and treated the decedent during her stay.

The condition of the decedent's skin was noted on OLOC's admission assessment and care screening form. Section M, entitled "Skin Condition," did not specifically indicate that the decedent had any ulcers. However, this section stated that, in the seven days prior to the decedent's admission to OLOC, she had utilized pressure relieving devices for the chair and bed, and had received "ulcer care," "other preventive or protective skin care," "preventive or protective foot care," and had dressings

applied to her feet. Section S, entitled "State Supplement," noted that there were no stage III or IV pressure ulcers "currently reported," although a stage II ulcer was noted upon her admission to OLOC. The progress notes regularly reflected observation of, and treatment for, pressure ulcers which developed.

During her 19–day stay at OLOC, the decedent was only seen once by Khokhar, while he was serving as a covering, per diem physician. The decedent's family asked Khokhar to see the decedent solely with respect to her...