D'Esposito v Haym Salomon Home for the Aged

[*1] D'Esposito v Haym Salomon Home for the Aged 2009 NY Slip Op 50788(U) [23 Misc 3d 1116(A)] Decided on April 27, 2009 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 27, 2009
Supreme Court, Kings County

Neil D'Esposito, as Administrator of the Estate of Stella D'Esposito, Deceased, Plaintiff,

against

Haym Salomon Home for the Aged, Defendant.



27961/06



Plaintiff was represented by John Dalli, Esq. of Dalli & Marino, LLP. Defendant was represented by Belinda Dodds-Marshall, Esq. of Kaufman Borgeest & Ryan LLP.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on Defendant's motion for an order, pursuant to CPLR 3211(a), 3212, 3024(b), 3046 (sic), and 3012-a, classifying this matter as one for medical malpractice, compelling Plaintiff's (sic) to comply with CPLR 3012-a to serve a Certification of Merit; compelling Plaintiff to file a Notice of Malpractice Action pursuant to CPLR 3046; dismissing Plaintiff's Third-Cause of Action for Gross Negligence; dismissing all allegations of recklessness, carelessness and wanton conduct, and striking all such allegations from the Complaint and Verified Bills of Particulars; dismissing Plaintiff's claim for punitive damages; and dismissing with prejudice Plaintiff's claim under the theory of res ipsa loquitur; and on Plaintiff's cross-motion for an order, pursuant to CPLR 3025, for leave to amend Plaintiff's Bill of Particulars:

Plaintiff Neil D'Esposito, as Administrator of the Estate of Stella D'Esposito, commenced the instant action by filing a Summons and Verified Complaint on September 15, 2006. Plaintiff filed the Note of Issue and Certificate of Readiness on September 25, 2008. The parties are scheduled to appear in the Jury Coordinating Part on June 8, 2009 for jury selection. Notwithstanding the imminence of trial, with these motions both parties are attempting to effect changes to the bases of Plaintiff's claim.

Plaintiff's Verified Complaint, dated September 14, 2006, purports to assert three causes of action. Plaintiff's First Cause of Action alleges that defendant Haym Salomon Home for the Aged was negligent and reckless in that, among other things, it "allowed a decubitus ulcer or pressure ulcer to occur on [Stella D'Esposito's] body"; "failed and omitted to properly treat a decubitus ulcer or pressure sore"; "failed and omitted to properly supervise Plaintiff's decedent and as a result [Plaintiff's decedent] suffered from a fall on or about May 1, 2003"; "failed and omitted to adequately nourish and hydrate Plaintiff"; and "failed and omitted to properly medicate Plaintiff's decedent as a result was overmedicated." As part of the First Cause of Action, Plaintiff additionally alleges that Defendant violated 42 CFR § 483.20(b)(1), 42 CFR § 483.25(c), 42 CFR § 483.40(c), [*2]10 NYCRR § 415.12, 10 NYCRR § 415.12(a)(1), 10 NYCRR § 415.12(c), and 10 NYCRR § 415.3(a).

Plaintiff's Second Cause of Action alleges violation of New York Public Health Law § 2801-d in that Plaintiff's decedent "sustained one or more decubitus [ulcers] on her buttocks, ulcers that remained untreated and became infected, was overmedicated, failed to be treated for an allergic reaction and was improperly supervised causing the Plaintiff's decedent to suffer falls." Plaintiff's Third Cause of Action alleges, among other things, gross negligence, carelessness, recklessness, and intentional conduct in disregard of Plaintiff's rights and safety.

On the return date of the motion, the parties entered into a "so-ordered" stipulation, dated March 20, 2009, striking allegations of recklessness, gross negligence, carelessness, wanton conduct, res ipsa loquitur, and punitive damages from Plaintiff's Verified Complaint and Bills of Particulars. The Court reserved for decision the remaining branches of Defendant's motion, as well as Plaintiff's cross-motion in its entirety.

In its motion, Defendant contends that, since Plaintiff's action sounds in "medical malpractice", Plaintiff must comply with CPLR 3012-a and CPLR 3406. In this regard, Defendant only addresses Plaintiff's allegations pertaining to the failure to monitor decedent's Coumadin or INR level, and does not address any of the other allegations in Plaintiff's Verified Complaint, including the allegations with respect to decedent's development of decubitus ulcers and her fall or falls at the premises. In opposition to Defendant's motion and in its cross-motion, Plaintiff similarly only addresses his allegations with respect to the failure to monitor Coumadin. As such, the Court will also only address whether Plaintiff's allegations regarding the failure to monitor decedent's Coumadin or INR level constitute medical malpractice for purposes of CPLR 3012-a and 3406. Whether any of Plaintiff's other allegations constitute a claim of medical malpractice for purposes of CPLR 3012-a and CPLR 3406 is not properly before the Court.

In support of its motion, Defendant submits a copy of Plaintiff's Supplemental Verified Bill of Particulars, dated March 26, 2007, alleging, among other things, that Defendant's nursing staff and house physicians, including interns and residents, were negligent "in failing to properly monitor plaintiff's decedent's Coumadin levels." According to Plaintiff's Verified Bill of Particulars, dated October 17, 2006, the "acts and/or omissions made by the defendant occurred over a period of time from February 2003 through May 2003." In the Verified Complaint, Plaintiff alleges that Ms. D'Esposito "came under and/or submitted to the care and attention of [Defendant] during a continuous course of treatment beginning in or about February 2003 and ending on May 14, 2003."

Defendant also submits Plaintiff's Response to Demand for Expert Witness Disclosure Pursuant to CPLR § 3101(d), dated October 7, 2008, in which Plaintiff discloses that his expert, Karim J. Khimani, M.D., will testify that, among other things, "he is generally familiar with standards of Internal/Geriatric Medicine practice, as well as standards applicable to Hospital and Nursing Home/Long-term Care Facility in New York State"; he is "familiar with the appropriate standards of care, as they existed in 2003, concerning the diagnoses and treatments of patients [*3]similarly situated as Stella D'Esposito and being given Coumadin"; that Defendant "improperly monitored the Coumadin levels (INR) during D'Esposito's stay"; that Defendant's "failure to check INR resulted in Coumadin toxicity"; and that Defendant "departed from standards of good and accepted medical practice, as they existed in 2003, by failing to properly monitor and administer Coumadin to Stella D'Esposito", and that such failure was a "proximate cause of conscious pain and suffering, infection and sepsis, further disability, and complication to her other medical conditions."

Defendant also submits another Response to Demand for Expert Witness Disclosure Pursuant to CPLR § 3101(d), dated October 7, 2008, in which Plaintiff discloses that his expert, Carol White-Vutano, R.N., will testify that, among other things, "she is generally familiar with standards of Nursing/Geriatric Medicine practice, as well as the standards applicable to a Nursing Home or Long-term Care Facility in New York"; "she is familiar with the appropriate standards of care, as they existed in 2003, concerning the diagnoses and treatment of patients similarly situated as Stella D'Esposito and being given Coumadin"; that Defendant "departed from standards of good and accepted medical practice, as they existed in 2003, by failing to properly monitor and administer Coumadin given to Stella D'Esposito by failing to adjust the dosage of Coumadin and properly monitor her INR levels," and that such failure was a "proximate cause of conscious pain and suffering, infection and sepsis, further disability, and complication to her other medical conditions."

"The critical question in determining whether an action sounds in medical malpractice or simple negligence is the nature of the duty to the plaintiff which the defendant is alleged to have breached." (Halas v Parkway Hosp., 158 AD2d 516, 516 [2d Dept 1990]; see also Caso v St. Francis Hosp., 34 AD3d 714, 714 [2d Dept 2006]; Rice v Vandenebossche, 185 AD2d 336, 337 [2d Dept 1992].) "When the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician, the claim sounds in medical malpractice." (Caso v St. Francis Hosp., 34 AD3d at 714-15 [internal quotation marks and citations omitted]; see also Bleiler v Bodnar, 65 NY2d 65, 72 [1985]["a negligent act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice"].) "However, if the conduct complained of may be readily assessed on the basis of common, everyday experience of the trier of facts, and expert testimony is unnecessary for such a review, then the cause of action sounds in negligence." (Rice v Vandenebossche, 185 AD2d at 337; see also De Leon v Hosp. of Albert Einstein Coll. of Med., 164 AD2d 743, 748 [1st Dept 1991].)

Here, Plaintiff's Bills of Particulars and expert witness disclosures contain allegations including, among other things, that Defendant's nursing and house physicians departed from standards of good and accepted medical practice by failing to properly monitor Plaintiff's Coumadin level, which allegations clearly bear a substantial relationship to the decedent's medical treatment, and would require expert medical testimony to prove. As such, Defendant demonstrates that Plaintiff's allegations pertaining to the failure to properly monitor decedent's Coumadin level sound in medical malpractice, and that CPLR 3012-a and CPLR 3406 are applicable to this action.

Surprisingly, in his opposition and cross-motion, Plaintiff's counsel asserts that "Plaintiff has not asserted a claim for Medical Malpractice.'" (See Combined Affirmation in Support of Plaintiff's [*4]Notice of Cross-Motion to Amend Plaintiff's Bill of Particulars and in Opposition to Defendant's Motion Classifying This Matter as One for Medical Malpractice, Etc., ¶ 4.) In light of Plaintiff's pleadings and expert witness disclosure statements, which clearly allege departures from good and accepted medical practice, and in light of the fact that Plaintiff only now takes the position that his action sounds only in simple negligence, after Defendant has brought the instant motion, such a statement is disingenuous at best, and can only be fairly understood as a withdrawal of any claim for medical malpractice. (See generally Yavorski v Dewell, 288 AD2d 545 [3d Dept 2001].)

Accordingly, Defendant's motion is DENIED in its entirety as moot. In any event, Defendant's motion is also denied on the merits.

CPLR 3012-a requires, among other things, a plaintiff's attorney prosecuting a medical malpractice action to serve a certificate of merit along with the complaint. CPLR 3012-a(g) allows a plaintiff, "in lieu of serving the certificate required by this section, [to] provide the defendant . . . with the information required by paragraph one of subdivision (d) of section thirty one hundred one of this chapter within the period of time prescribed by this section." Here, Defendant attached to its moving papers two expert witness disclosure statements pursuant to CPLR § 3101(d), each dated October 7, 2008. Even though Plaintiff failed to serve the expert witness disclosure statements with the Verified Complaint within the required time-frame, it is well settled that the failure to timely comply with CPLR 3012-a cannot result in the dismissal of the action. (See Russo v Pennings, 46 AD3d 795, 797 [2d Dept 2007]; Grant v County of Nassau, 28 AD3d 714, 714 [2d Dept 2006]; Kolb v Strogh, 158 AD2d 15, 21 [2d Dept 1990].) Rather, such failure usually results in a conditional order compelling Plaintiff to comply with CPLR 3012-a. (See e.g. Rice v Vandenebossche, 185 AD2d at 338; Kolb v Strogh, 158 AD2d at 22.) Here, Defendant never sought an order compelling Plaintiff to comply with CPLR 3012-a at any time prior to Plaintiff's service of his CPLR 3101(d) expert witness disclosure statement. Under these circumstances, Defendant has no cause to complain about Plaintiff's tardy compliance with CPLR 3012-a. (See e.g. Kolb v Strogh, 158 AD2d at 22; see also e.g. Marsicano v West Coast Co., 148 Misc 2d 651, 656 [Sup Ct, Kings County 1990] ["I, therefore, conclude that the service of the expert witness statement pursuant to CPLR 3101(d)(1)(I), although tardy, sufficiently satisfies the requirements for the filing of a certificate of merit . . ."].)

Accordingly, that branch of Defendant's motion seeking to compel Plaintiff to comply with CPLR 3012-a, or to dismiss Plaintiff's Verified Complaint for failure to comply with CPLR 3012-a, is also denied on the merits.

CPLR 3406(a) provides, in pertinent part: "Not more than sixty days after issue is joined, the plaintiff in an action to recover damages for dental, medical or podiatric malpractice shall file with the clerk of the court in which the action is commenced a notice of dental, medical or podiatric malpractice action, on a form to be specified by the chief administrator of the courts . . . The time for filing a notice of dental, medical or podiatric malpractice action may be extended by the court only upon a motion made pursuant to section two thousand [*5]four of this chapter."

CPLR 3406(b) provides that the chief administrator of the courts shall adopt special calendar control rules in actions to recover damages for dental, podiatric, or medical malpractice. Those rules are set forth in Uniform Rule § 202.56.

"Neither the plain language of CPLR 3406(a) nor the structure of the . . . procedural scheme supports the conclusion that the Legislature intended dismissal to be a sanction for failure to timely file the notice." (Tewari v Tsoutsouras, 75 NY2d 1, 7 [1989]; see also Grant v County of Nassau, 28 AD3d at 714.) "Consistent with the statute, the rules promulgated by the Chief Administrator do not authorize dismissal as a sanction for noncompliance with the notice requirement of CPLR 3406(a)." (Tewari v Tsoutsouras, 75 NY2d at 8.) "The notice requirement [of CPLR 3406(a)] is a rule of calendar practice which functions to trigger the precalendar conference required by CPLR 3406(b)." (See id. at 12.)

Again, here, at no time prior to bringing the instant motion had Defendant ever sought an order compelling Plaintiff to comply with CPLR 3406. (See e.g. Krulik v Meyerowitz, 160 AD2d 770, 771-72 [2d Dept 1990].) Since the case is now on the trial calendar, it serves no purpose to compel Plaintiff to file a notice of medical malpractice, which would result in the scheduling of pre-calendar procedures set forth in CPLR 3406(b) and Uniform Rule 202.56.

Also, Plaintiff does not cross-move for an order, pursuant to CPLR 2004, extending the 60-day period for him to file a notice of medical malpractice, which is the only way that a court can extend the 60-day period. (See CPLR 3406[a]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3406:2; see also Kolb v Strogh, 158 AD2d at 21 n 1 ["Whether such permission to file late notices may be denied outright, so as to doom the plaintiff's case to procedural limbo (since no action can go forward in the absence of the required notice), and so as to subject the plaintiff's action to possible later dismissal for neglect to prosecute (CPLR 3216) is a question we need not decide."].)

Accordingly, the branch of Defendant's motion for an order dismissing Plaintiff's action based upon his failure to comply with CPLR 3406(a), or compelling Plaintiff to comply with CPLR 3406(a), is also denied on the merits.

In his cross-motion, Plaintiff seeks to amend his Bill of Particulars to assert a cause of action under Public Health Law § 2801-d, which provides, in pertinent part: "1.Any residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered a result of said deprivation, except as hereinafter provided. For purposes of this section a right or benefit of a patient of a residential health care facility shall mean any right or benefit created or established for the well-being of the patient by the terms of any contract, by any state statute, [*6]code, rule or regulation or by any applicable federal statute, code, rule or regulation . . . No person who pleads and proves, as an affirmative defense, that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted shall be liable under this section.

. . .

4.. . . The remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings."

Although Plaintiff's cross-motion papers do not alert the Court to this fact, Plaintiff's Verified Complaint already alleges a cause of action under Public Health Law § 2801-d. Here, although inartfully stated by Plaintiff's counsel, Plaintiff seeks to amend his Bill of Particulars to allege the violation of additional Department of Health regulations as predicates for his Public Health Law § 2801-d cause of action. In this regard, Plaintiff alleges that the decedent was deprived of rights or benefits conferred by 10 NYCRR § 415.18, 10 NYCRR 415.15(b)(2)(i) and (ii), 10 NYCRR 415.12(a)(4), and 10 NYCRR 415.12(I)(1). Plaintiff contends that Defendant's "negligence" "arises from the Coumadin overdose that [Plaintiff] suffered while a resident of Defendant's facility", and that the cited New York State Department of Health regulations "discuss a Nursing Home's duty toward residents concerning their medications."

"Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit." (Sampson v Contillo, 55 AD3d 591, 592 [2d Dept 2008][internal quotation marks and citations omitted].) Where, as here, "the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious." (See id. [internal quotation marks and citations omitted].) "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom." (Id.)

In opposition, Defendant contends that Plaintiff's cross-motion must be denied because Plaintiff has failed to proffer an excuse, the proposed amendments lack merit, and Defendant is prejudiced by the late amendment.

While Plaintiff's failure to offer an excuse for his delay balances against granting Plaintiff's motion, such failure cannot alone bar amending a pleading. (See AFBT-II, LLC v Country Village on Mooney Pond, Inc., 21 AD3d 972, 973 [2d Dept 2005].) And, in determining a motion to amend a pleading, "the legal sufficiency or merits of a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt." (See Lucido v Mancuso, 49 AD3d 220, 227 [2d Dept 2008].) [*7]

It has now been held in the First, Third, and, most recently, the Fourth Departments of the Appellate Division that Public Health Law § 2801-d is a distinct statutory cause of action that may be asserted in conjunction with common law causes of action, such as negligence or medical malpractice, even where the Public Health Law § 2801-d cause of action is based upon the same facts as the asserted common law cause[s] of action. (See Kash v Jewish Home and Infirmary of Rochester, __AD3d__, 2009 NY Slip Op 01041, *4 [4th Dept 2009] ; Leclaire v Fort Hudson Nursing Home, Inc., 52 AD3d 1101, 1102 [3d Dept 2008]; Zeides v Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178, 179 [1st Dept 2002].). There has not been any Second Department decision addressing the issue. (See Acevedo v Augustana Lutheran Home, 7 Misc 3d 1005[A], 2004 NY Slip Op 51867[U], *3 [Sup Ct, Kings County 2004].)

"The statutory basis of liability [under Public Health Law § 2801-d] is neither deviation from accepted standards of medical practice nor breach of a duty of care"; "[r]ather, it contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient.'" (Zeides v Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d at 179 [quoting Public Health Law § 2801-d(1), (2)].)

Here, it cannot be stated that the insufficiency or lack of merit of any of the proposed amendments to Plaintiff's Public Health Law § 2801-d cause of action are clear and free from doubt. (See Lucido v Mancuso, 49 AD3d at 227; see also James v Government of Saint Lucia, 2009 NY Slip Op 50700[U], at *4-*5 [Sup Ct, Kings County 2009][holding that the proponent of an amended pleading need only demonstrate that the proposed amended pleading fits within a cognizable legal theory as a cause of action or defense, but is not required to make an evidentiary showing that the amendment has merit].)

To demonstrate prejudice, a defendant must carry the burden in demonstrating that it "has been hindered in the preparation of his or her case or has been prevented from taking some measure in support of his or her position." (See Pansini Stone Setting, Inc. v Crow and Sutton Assoc., 46 AD3d 784, 786 [2d Dept 2007][defining "prejudice"]; see also Lucido v Mancuso, 49 AD3d at 232 [indicating that it is a defendant's burden to establish prejudice or surprise].)

Here, since this case has been certified ready for trial, prejudice will be deemed to have resulted where the proposed claim does not arise out of the same conduct that forms the basis of Plaintiff's previously asserted claims. (See Sheets v Liberty Alliances, LLC, 37 AD3d 170, 171 [1st Dept 2007] ["(P)leading amendments alleging new facts should not be freely granted after the close of disclosure as scheduled in a preliminary conference order, and should be subject to even closer scrutiny after the filing of a facially correct note of issue."].)

In support of his cross-motion, Plaintiff claims that each of the proposed amendments relates to his allegation that Defendant's nursing staff and house physicians, including interns and residents, were negligent "in failing to properly monitor plaintiff's decedent's Coumadin levels," an allegation alleged in his Supplemental Verified Bill of Particulars. Even though Plaintiff may not use this [*8]allegation to support a medical malpractice cause of action (since it was deemed to have been withdrawn), the fact that Plaintiff made such allegation in a prior pleading balances in favor of Plaintiff in determining whether Defendant would be prejudiced by such allegation as part of the pleaded Public Health Law § 2801-d cause of action.

To the extent that any of the proposed amendments asserts a claim that does not relate to the failure of Defendant's nursing staff and house physicians, including interns and residents, to monitor decedent's Coumadin levels, the amendment will not be permitted. The Court accepts Plaintiff's representation that he does not seek to amend his Verified Complaint to add any new allegation of fault to the allegation of failure to monitor Plaintiff's decedent's Coumadin level already pleaded.

Plaintiff seeks to allege a violation of 10 NYCRR § 415.18 as part of his Public Health Law § 2801-d cause of action. According to Plaintiff's counsel, this section "discusses the Facility's duty concerning pharmacy services." Plaintiff does not mention the involvement of any pharmacy services in any prior pleading or expert witness disclosure statement, and does not rebut Defendant's assertion that there has been no disclosure regarding any theory of liability based upon the services of pharmacists. As such, Defendant has sufficiently demonstrated prejudice with regard to a claim based upon 10 NYCRR § 415.18. Moreover, the fact that Plaintiff has failed to proffer any excuse for his delay in asserting this claim militates in favor of denying that branch of Plaintiff's motion. Therefore, that branch of Plaintiff's motion to amend his Bill of Particulars to allege a violation of 10 NYCRR 415.18 as part of his Public Health Law 2801-d cause of action, is DENIED.

As a predicate for his Public Health Law § 2801-d cause of action, Plaintiff also seeks to allege a violation of 10 NYCRR § 415.15(b)(2)(i) and (ii) relating to "Physician Visits and Responsibilities", which require, among other things, that the facility "ensure that the medical care of each resident is supervised by a physician" who will "visit the resident as often as necessary to address resident medical care needs", that the physician "participates as a member of an interdisciplinary care team in the development and review of the resident's comprehensive care plan", and that the "physician visits the resident whenever the resident's medical condition so warrants." These allegations are much broader than the failure to monitor Coumadin, and encompass conduct not within Plaintiff's prior pleadings and expert witness disclosure statements. As such, Defendant has sufficiently demonstrated prejudice with regard to a claim based upon 10 NYCRR § 415.15(b)(2)(i) and (ii). Moreover, the fact that Plaintiff has failed to proffer any excuse for his delay in asserting this claim militates in favor of denying that branch of Plaintiff's motion. Therefore, that branch of Plaintiff's motion to amend his Bill of Particulars to allege a violation of 10 NYCRR § 415.15(b)(2)(i) and (ii) as part of his Public Health Law 2801-d cause of action, is DENIED.

As a predicate for his Public Health Law § 2801-d cause of action, Plaintiff also seeks to allege a violation of 10 NYCRR § 415.12(a)(4), which requires, among other things, that the medical director of a nursing home assure "that each resident's responsible physician attends to the resident's medical needs, participates in care planning, follows the schedule of visits . . . and complies with facility policies." This claim does not, as Plaintiff contends, directly relate to Plaintiff's allegation [*9]with respect to the failure to monitor Coumadin, and there has been no prior allegation involving the medical director of the nursing home. Again, Defendant has sufficiently demonstrated prejudice, and Plaintiff's failure to offer any excuse for his delay in asserting the claim balances in favor of Defendant. Therefore, that branch of Plaintiff's motion to amend his Bill of Particulars to allege a violation of 10 NYCRR § 415.12(a)(4) as part of his Public Health Law 2801-d cause of action, is DENIED.

As a predicate for his Public Health Law § 2801-d cause of action, Plaintiff also seeks to allege violation of 10 NYCRR § 415.12(I)(1), which provides, in pertinent part, that " . . . [t]he drug regimen shall be monitored for evidence of both adverse actions and therapeutic effect. Dose changes or discontinuation of the drug must be made if the drug is ineffective and/or is causing disabling or harmful side effects and/or the condition for which it was prescribed has resolved."

Contrary to Defendant's contentions, Plaintiff's amendment to add 10 NYCRR § 415.12(I)(1) does not prejudice Defendant, because it involves the same allegation contained in Plaintiff's Verified Complaint regarding "overmedication"; in Plaintiff's Supplemental Verified Bill of Particulars, dated March 26, 2007, that Defendant's medical staff were negligent "in failing to properly monitor plaintiff's decedent's Coumadin levels"; and in Plaintiff's expert witness disclosures served in October 2008 regarding the failure to monitor Coumadin levels. Since at least 2007 and possibly earlier, Defendant has known of Plaintiff's allegation pertaining to the failure to monitor Plaintiff's decedent's Coumadin level. As such, Defendant fails to sufficiently demonstrate prejudice with respect to an alleged violation of 10 NYCRR § 415.12(I)(1). Therefore, that branch of Plaintiff's motion to amend his Bill of Particulars to allege a violation of 10 NYCRR § 415.12(I)(1) as part of his Public Health Law § 2801-d cause of action, is GRANTED.

Finally, it should be noted that the Court recognizes that permitting Plaintiff to assert a violation of 10 NYCRR § 415.12(I)(1) as a predicate to his Public Health Law § 2801-d cause of action allows Plaintiff to allege in effect that Defendant departed from good and accepted medical practice by failing to properly monitor decedent's Coumadin level, an allegation that was part of the medical malpractice claim that the Court has deemed to have been withdrawn by Plaintiff. Such incongruity can only be explained by reference to Public Health Law § 2801-d, which provides a nursing home patient with "rights and remedies that are in addition to and cumulative with any other right or remedy available to a patient." (See Public Health Law § 2801-d[4].)

Public Health Law § 2801-d gives a plaintiff, nursing home patient, the right to allege a cause of action for medical malpractice, as well as allege a cause of action pursuant to Public Health Law § 2801-d, based upon the same act or omission. (See Kash v Jewish Home and Infirmary of Rochester,__AD3d__, 2009 NY Slip Op 01041 at *4.) Where a viable claim exists pursuant to the Public Health Law based upon an act or omission that would otherwise only support a claim for medical malpractice, the net effect of the statutory cause of action appears to shift , from the plaintiff to the defendant, the burden of proof on whether there was a departure from good and accepted [*10]medical practice. The statute provides an "affirmative defense" if "the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted" pursuant to the statute. (See Public Health Law 2801-d[1].)

Accordingly, Defendant's motion is DENIED in its entirety. Plaintiff's cross-motion is GRANTED only to the extent that Plaintiff may serve an amended bill of particulars alleging a violation of 10 NYCRR § 415.12(I)(1) as part of his Public Health Law § 2801-d cause of action.

April 27, 2009___________________

Jack M. Battaglia

Justice, Supreme Court