Weitzman v. Bon Secours Charity Health Sys.
| Decision Date | 09 March 2021 |
| Docket Number | Index 60980/2018 |
| Parties | MICHAEL WEITZMAN as Executor of the Estate of GLORIA WEITZMAN, and MICHAEL WEITZMAN, Individually, Plaintiff, v. BON SECOURS CHARITY HEALTH SYSTEM, INC. d/b/a GOOD SAMARITAN HOSPITAL and NORTHERN MANOR MULTICARE CENTER, INC., Defendants, Motion Seq. Nos. #1 and #2 |
| Court | New York Supreme Court |
2021 NY Slip Op 33254(U)
MICHAEL WEITZMAN as Executor of the Estate of GLORIA WEITZMAN, and MICHAEL WEITZMAN, Individually, Plaintiff,
v.
BON SECOURS CHARITY HEALTH SYSTEM, INC. d/b/a GOOD SAMARITAN HOSPITAL and NORTHERN MANOR MULTICARE CENTER, INC., Defendants,
Motion Seq. Nos. #1 and #2
Index No. 60980/2018
Supreme Court, Westchester County
March 9, 2021
Unpublished Opinion
DECISION & ORDER
Hon. James W Hubert, Supreme Court Justice.
Plaintiff Michael Weitzman commenced the instant action on July 19, 2018, on behalf of himself and his late mother, decedent Gloria Weitzman, against Bon Secours Charity Health System, Inc. d/b/a/ Good Samaritan Hospital ("GSH") and Northern Manor Multicare Center, Inc. ("Northern Manor ") for medical malpractice, wrongful death, negligence, and violations of New York's Public Health Law.
The events leading to this action began on January 13, 2016, when decedent, an elderly woman with an extensive prior medical history, was transported to GSH by ambulance with a number of different ailments. Upon her admission, decedent was diagnosed with respiratory failure, anemia, c-diff, renal disease, hypertension, high cholesterol, E coli sepsis, lymphoma and chronic malnutrition. In addition, she had recently undergone chemotherapy and was suffering fi-om malnutrition and abnormal blood cell counts.
As all parties acknowledge, decedent had a complicated hospital course at GSH. She required transfusions of red blood cells and platelets, and developed acute respiratory distress. More than once, decedent was intubated and placed on a ventilator and feeding tube. Decedent
also developed a significant sacral pressure ulcer that worsened during her hospitalization at GSH. According to the medical records, by early February, the sacral wound had increased to 3 X 4 cm and was documented as a necrotic sacral ulcer with blanching in the surrounding erythema. On February 4, 2016, decedent was discharged and transferred to Select Specialty Hospital, a long-term acute care hospital, where she underwent six sacral debridements.
On March 21, 2016, decedent was discharged irom Select Specialty Hospital and transferred to Northern Manor, a skilled nursing facility. As of that date, the sacral ulcer was documented as a Stage IV pressure ulcer[1] measuring 5 x 5 x 2.5 cm, with the entire wound area measuring 10 x 10.5 cm. In addition to the sacral ulcer, Northern Manor nursing staff documented a Stage II left buttock pressure ulcer measuring 3x4 cm. At the time, decedent was wheelchair bound and on a ventilator. She imderwent seventeen additional sacral debridement procedures at Northern Manor, and was prescribed Percocet and Fentanyl for severe pain. Decedent also developed a heel pressure ulcer while under the care of Northern Manor staff. However, by the time that decedent was discharged from Northern Manor on June 8, 2017, the heel ulcer and buttock ulcer had both healed, and the sacral ulcer measured 1.0 x 0.4 x 0.3 cm.
Decedent died two months later, on August 6, 2017. The cause of death on decedent's death certificate was listed as cardiopulmonary arrest due to coronary artery disease and hypertension. Plaintiff's bill of particulars alleges that as a result of medical malpractice and negligence of the staff at each Defendant facility, the decedent suffered, inter alia, a sacral pressure ulcer, a buttock pressure ulcer, debridement, infection, necrosis, sepsis, deep tissue
injury, malnutrition, emotional trauma, pain and suffering, and death.
On the motions before the Court, GSH and Northern Manor move separately for summary judgment dismissing the complaint insofar as asserted against them. In support of their respective motions, the Defendants have each submitted, inter alia, expert physician affirmations and decedent's medical records.
GSH's expert opines that the sacral pressure ulcer that decedent developed at GSH was an unavoidable consequence of her grave medical condition and GSH's life-saving measures, and there was no deviation from the standard of care. For its part, Northern Manor's expert opines that decedent's pressure ulcers were not caused by any act of negligence by Northern Manor, inasmuch as she had developed the ulcers prior to her admission, and that "[a]ll reasonable, necessary and appropriate interventions were in place for the decedent as is evidenced by the records, which show that the wounds were closely followed and, with the exception of the sacral ulcer, all wounds had resolved less than two months after treatment, "
In opposition, Plaintiff relies primarily on his own expert affirmations which dispute the Defendants' expert opinions, and opine that with a reasonable degree of medical certainty, each Defendant departed from the standard of care in treating decedent's pressure ulcers and proximately caused her injuries.
"[T]he requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage." Raucci v. Shinbrot, 127 A.D.3d 839, 841, 5 N.Y.S.3d 314, 317 (2d Dep't 2015)(citations omitted).
Thus, "a physician moving for summary judgment dismissing a cause of action to recover damages for medical malpractice must establish, prima facie, either that there was no departure
from good and accepted medical practice or that any alleged departure was not a proximate cause of the plaintiffs injuries." Id., citing Bhim v. Dourmashkin, 123 A.D.3d 862, 863-64, 999 N.Y.S, 2d 471 (2d Dep't 2014).
"[W]here a defendant physician makes a prima facie showing that there was no departure from good and accepted medical practice, as well as an independent showing that any departure that may have occurred was not a proximate cause of the plaintiffs injuries, 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, 182 (2d Dep't 2011). However, "the party opposing the motion is entitled to every favorable inference that may be drawn from the pleadings and affidavits submitted by the parties." Rosario v. Our Lady of Consolation Nursing & Rehabilitation Care Ctr., 186 A.D.3d 1426, 128 N.Y, S.3d 906 (2d Dep't 2020).
Additionally, "[s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury." Feinberg v. Feit, 23 A.D.3d 517, 806 N.Y.S, 2d 661 (2d Dep't 2005); see Rodriguez v, Bursztyn, 187 A.D.3d 1230, 1231, 131 N, YS.3d 569, 570 (2d Dep't 2020).
GSH's Motion for Summary Judgment
The Court first addresses GSH's motion for summary judgment, designated as Motion Sequence No. 2 in NYSCEF, for the sake of chronological clarity.
In support of its motion, GSH has submitted decedent's medical records, deposition testimony of the parties, and an expert affirmation from Dr. Jeffrey Levine, a board certified physician in internal medicine and geriafric medicine. Dr. Levine opines that based on his review of the relevant medical records, the pressure ulcer that decedent developed at GSH was
an unavoidable consequence of her grave medical condition and GSH's life-saving measures, and there was no deviation from the standard of care.
Dr. Levine notes that in addition to lymphoma of the spleen and stomach, decedent also had a history of kidney disease, anemia, urinary retention, left pleural effusion, hypertension and hyperlipidemia. She also suffered from pancytopenia, low levels of all three blood cell types, and was "nutritionally compromised." He further states upon her admission to GSH, decedent required transfiisions of red blood cells and platelets, and two days later, on January 15, 2016, she developed acute respiratory distress and was transferred to the ICU. On January 17, decedent went into respiratory distress a second time and was intubated and placed on a ventilator. Dr. Levine states that decedent's bed had to be elevated while she was on the ventilator in order to avoid aspiration and ventilator associated pneumonia, and that "[u]nfortunately, keeping the head of the bed elevated puts greater pressure on the sacrum, resulting in the imavoidable development of sacral pressure ulcers."
On January 18, decedent was extubated but still required a ventilator for oxygenation. On January 21, she suffered respiratory fatigue and was re-intubated. According to the medical records, neither a nasogastric tube nor a percutaneous endoscopic gastrostomy could be used due to her low platelet count and pulmonary status.
Dr. Levine states that when decedent was admitted, hospital staff determined that she was at risk of skin breakdown and pressure ulcer prevention measures were put into place. She received a pressure redistribution bed, heel lift boots, regular skin assessments, blood glucose control, position changes, and nutrition promotion. Dr. Levine further states that GSH nursing staff checked decedent's skin on a daily basis, and that turning and repositioning was done every two hours with pillows and wedges, "when it was safe."
According to Dr. Levine, a nurse first noticed a small deep tissue injury to decedent's sacrum on January 21, 2016, and applied a foam dressing to the wound. On January 27, 2016, decedent was evaluated by a wound care nurse. At that point, the injury measured 3 x 1 cm with discoloration on the sacrum and surrounding area. The nurse classified the wound as an "unstageable deep tissue injury, skin failure and multi-organ failure." She recommended continued foam dressing every 72 hours and preventative care, noting that decedent had a high risk of skin breakdown due to multi-organ failure, immobility, and malnutrition.
By February 3,...
To continue reading
Request your trial