Rucigay v. Wyckoff Heights Med. Ctr.

• Decision Date: 12 May 2021
• Docket Number: Index No. 9540/13,2018–10322, 2018–10454
• Citation: 149 N.Y.S.3d 148,194 A.D.3d 865
• Parties: John D. RUCIGAY, etc., et al., appellants, v. WYCKOFF HEIGHTS MEDICAL CENTER, et al., defendants, Vichai Lotongkhum, et al., respondents. (Appeal No. 1) John D. Rucigay, etc., et al., appellants, v. Wyckoff Heights Medical Center, respondent, et al., defendants. (Appeal No. 2)
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 865

149 N.Y.S.3d 148

John D. RUCIGAY, etc., et al., appellants,

v.WYCKOFF HEIGHTS MEDICAL CENTER, et al., defendants,

Vichai Lotongkhum, et al., respondents. (Appeal No. 1)

John D. Rucigay, etc., et al., appellants,

v.Wyckoff Heights Medical Center, respondent, et al., defendants. (Appeal No. 2)

2018–10322, 2018–10454

Index No. 9540/13

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

Argued—February 25, 2021

May 12, 2021

Paul W. Cutrone (Arnold E. DiJoseph, P.C., New York, NY), for appellants.

Furman Kornfeld & Brennan LLP (Rubin Paterniti Gonzalez Kaufman, LLP, New York, N.Y. [James W. Tuffin and Juan Gonzalez ], of counsel), for respondents in Appeal No. 1.

Arshack, Hajek & Lehrman, PLLC (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Caryn L. Lilling and Katherine Herr Solomon ], of counsel), for respondent in Appeal No. 2.

REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) a judgment of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), entered June 7, 2018, and (2) a judgment of the same court entered June 28, 2018. The judgment entered June 7, 2018, upon a jury verdict in favor of the defendants Vichai Lotongkhum and Jigar Patel, is in favor of those defendants and against the plaintiff, in effect, dismissing the complaint insofar as asserted against those defendants. The judgment entered June 28, 2018, upon the granting of the motion of the defendant Wyckoff Heights Medical Center pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it, is in favor of that defendant and against the plaintiffs, in effect, dismissing the complaint insofar as asserted against that defendant.

ORDERED that the judgments are affirmed, with one bill of costs payable by the plaintiffs to the respondents appearing separately and filing separate briefs.

On June 8, 2012, Emil J. Rucigay (hereinafter the decedent), then 83 years old, was admitted to the defendant Wyckoff Heights Medical Center (hereinafter the hospital) complaining of dizziness and shortness of breath. The defendants Vichai Lotongkhum, a cardiologist, and Jigar Patel, an internist (hereinafter together the defendant physicians), treated the decedent at the hospital. On June 11, 2012, while still admitted to the hospital, the decedent fell after standing quickly to answer the phone, fracturing his cervical spine. He underwent surgery for his injuries on June 17, 2012, after which he experienced complications and was placed on a ventilator. The decedent was removed from life support, and he died on July 7, 2012.

The plaintiffs commenced the instant action, inter alia, to recover damages for medical malpractice, alleging that the defendants failed to evaluate the decedent as being at high risk for falls and to take proper precautions to prevent his fall. The matter proceeded to a jury trial. At the close of the evidence, the Supreme Court granted the hospital's motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it. Thereafter, the jury returned a verdict in favor of the defendant physicians, finding that adequate fall prevention measures were in place on the date of the decedent's fall. Judgment was entered in favor of the hospital upon the court's granting of the hospital's motion for judgment as a matter of law, and judgment was entered in favor of the defendant physicians upon the jury verdict in their favor. The plaintiffs appeal.

Contrary to the plaintiffs' contention, the Supreme Court properly granted the hospital's motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it. "To be entitled to judgment as a matter of law pursuant to CPLR 4401, the defendant has the burden of showing that, upon viewing the evidence in the light most favorable to the plaintiff, the plaintiff has not made out a prima facie case" ( Nichols v. Stamer , 49 A.D.3d 832, 833, 854 N.Y.S.2d 220 ; see CPLR 4401 ; Pieter v. Polin , 148 A.D.3d 1193, 1193, 50 N.Y.S.3d 509 ). "The court may grant the motion only if there is no rational process by which the jury could find for the plaintiff against the moving defendant" ( Nichols v. Stamer , 49 A.D.3d at 833, 854 N.Y.S.2d 220 ; see Feteha v. Scheinman , 169 A.D.3d 871, 872, 94 N.Y.S.3d 371 ). "In order to establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant[ ] breached that standard of care, and (3) that the breach of the standard was the proximate cause of the injury" ( Deadwyler v. North Shore Univ. Hosp. at Plainview, 55 A.D.3d 780, 781, 866 N.Y.S.2d 306 [internal quotation marks omitted]; see Pieter v. Polin, 148 A.D.3d at 1194, 50 N.Y.S.3d 509 ).

Here, the plaintiffs' expert physician, Nicholas DePace, testified on direct examination that the hospital deviated from the standard of care by underestimating, on the Morse scale system, the decedent's risk of falling. He further opined that the decedent should have not have been permitted to get out of bed without assistance. However, on cross-examination, DePace acknowledged that, despite categorizing the decedent as a low fall risk, the hospital implemented fall precautions used for high-risk patients and that he had "no problem" with the fall protocol implemented under the Morse scale. Additionally, while DePace opined that the decedent should have had personal assistance for getting out of bed, he agreed that only a physician can order one-to-one observation and bed rest. "Such admissions were fatal to the [plaintiffs'] establishment of a prima facie case on the issue of liability for medical malpractice" ( Feteha v. Scheinman, 169 A.D.3d at 873, 94 N.Y.S.3d 371 ).

The plaintiffs argue on appeal that the Supreme Court committed reversible error in precluding the admission into evidence of two nursing notes that contained statements of the decedent under the Dead Man's Statute. However, as the defendants correctly argue, the notes at issue were ultimately read to the jury without objection. Accordingly, any error in initially precluding the notes was harmless.

The plaintiffs also argue, on appeal, that the Supreme Court erred in precluding the admission into evidence of the decedent's autopsy report and "expiration report." "[T]he opinion expressed in the autopsy...