Torres v Terence Cardinal Cooke Health Care Ctr.
Annotate this CaseDecided on December 4, 2009
Supreme Court, New York County
Marilexis Torres, as Administratrix of the Estate of Roberto Torres, Decedent, Marilexis Torres, Individually, Plaintiffs,
against
Terence Cardinal Cooke Health Care Center, Defendants.
109359/08
Attorneys for plaintiff: Sinel & Associates, PLLC
Attorneys for defendant: Wilson, Elser, Moskowitz, Edelman & Dicker
Joan B. Lobis, J.
Defendant Terence Cardinal Cooke Health Care Center ("TCC") moves, by order to show cause, for an order pursuant to C.P.L.R. Rule 3212, granting it summary judgment and dismissal of those of plaintiff's statutory, ordinary negligence, medical malpractice, and negligent hiring claims relating to dates of treatment that fall beyond the applicable statute of limitations period for the claims specified; this action was commenced on July 8, 2008. TCC also seeks summary judgment dismissal of the claims of negligent hiring, training, retention, and supervision, on the basis that plaintiff cannot make out a viable cause of action. For the following reasons, defendant's motion is granted in part, and denied in part, as specified below.
Roberto Torres died at Metropolitan Hospital on September 26, 2006. On June 8, 2004, the then 56-year-old Mr. Torres was transferred from New York Presbyterian Hospital ("NYPH") to defendant TCC, following a fall which caused a left femur neck fracture requiring a left hip hemiarthroplasty. While at NYPH, decedent suffered a respiratory arrest secondary to narcotic overdose and a retroperitoneal bleed secondary to vascular catheter placement for hemodialysis. He also had gastrostomy tube inserted for feeding due to dysphagia at some point. Upon his admission to TCC, Mr. Torres had end-stage renal disease, right lower extremity weakness, acute deep vein thrombosis, chronic urinary tract infections, coronary artery disease, prior myocardia infarction, peripheral arterial disease, depression, a prior cerebral vascular accident, hypertension, insulin dependent diabetes, and a hospital-acquired stage III pressure sore of the sacrum. He was incontinent of bladder and stool, and wore a diaper. He was positive for hepatitis. For the two years and three months after his initial admission, decedent remained at TCC for a total of five [*2]separate periods, with only brief periods between each admission when he was admitted at other non-party hospitals. The bill of particulars indicates that he was at TCC during the following periods: June 8, 2004 to May 19, 2005; June 1, 2005 to April 20, 2006; May 4, 2006 to June 10, 2006; June 13, 2006 to July 12, 2006; and, July 14, 2006 to September 9, 2006.
At oral argument, counsel for plaintiff conceded that plaintiff could not pursue claims for incidents of ordinary negligence or statutory violations that occurred prior to July 8, 2005, because of the applicable statute of limitations of three years; as such, those branches of defendant's motion seeking dismissal of those of plaintiff's statutory claims and general negligence claims for incidents occurring prior to July 8, 2005, are granted. Defendant has also moved for summary judgment dismissing all claims for negligent hiring, training, retention, and supervision, on the basis that plaintiff's claims of TCC's vicarious liability for the acts of its employees are inconsistent with a negligent hiring claim, and that plaintiff asserts no facts showing that any employee acted outside the scope of his or her employment. See Karoon v. N.Y.C. Transit Auth., 241 AD2d 323, 324 (1st Dep't 1997). Plaintiff's counsel does not address this argument in his opposition papers. He relies instead on general principles of summary judgment. By not specifically opposing this prong of defendant's motion, it is not disputed. Dismissal of the cause of action for negligent hiring, training, supervision, and retention is granted.
Plaintiff does dispute defendant's entitlement to summary judgment on the medical malpractice claim, on the grounds of the continuous treatment doctrine. The continuous treatment doctrine provides that the time to commence a medical malpractice action is stayed " when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.'" McDermott v. Torre, 56 N.Y. 23 399, 405 (1982), quoting Borgia v. City of New York, 12 NY2d 151, 155 (1962). "The purpose of the continuous treatment doctrine is to avoid the absurdity of requiring a wronged patient to interrupt corrective efforts by serving a summons and complaint upon the treating hospital or physician." Schrank v. Lederman, 52 AD3d 494, 495 (2d Dep't 2008).
The party moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant physician was negligent. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Once the movant satisfies this burden, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Id. (citation omitted). Specifically as to the continuous treatment doctrine, defendant has shown that this action was commenced on July 8, 2008, and that any claims as to treatment prior to January 8, 2006, more than two years and six months after the alleged acts and omissions, are barred. O'Donnell v. Siegel, 49 AD3d 415, 420 (1st Dep't 2008). But, unlike cases where the mere recitation of the dates of the claimed treatment outside the statute of limitations time frame establish the affirmative defense and shift the burden to plaintiff, here we have a span of days where decedent was being cared for by defendant that extends for months prior to the time the [*3]statute of limitations establishes as the cutoff for a medical malpractice claim. The first admission ran for slightly longer than one year. The entirety of the admission was prior to the two-and-one-half year cutoff date for bringing a claim for medical malpractice. But, Mr. Torres was readmitted less than three weeks after his first discharge and this second stay lasted over ten months. The statute of limitations cutoff for medical malpractice, January 8, 2006, occurred during this second admission. In light of the undisputed fact that Mr. Torres was being cared for at TCC for a continuous period prior to January 8, 2006, defendant offered an expert affirmation of Luigi Capobianco, M.D., who reviewed the records of the nursing home and opined that Mr. Torres' underlying medical conditions predisposed him for pressure ulcers. Dr. Capobianco lists eleven locations of sores that were treated at TCC. He claims that the sores on ten of those locations healed on dates that he provides. He opines that all but one sore reported during the second period of admission resolved before discharge. He acknowledges that one pressure sore described as present on December 20, 2005, was present on discharge.
Plaintiff does not provide an expert affirmation in response, but argues that the checklist provided by Dr. Copabianco does not eliminate factual issues regarding the continuous treatment doctrine. Plaintiff's decedent received ongoing and continuous treatment for the care and prevention of bed sores. Because of the continuous treatment doctrine, plaintiff argues that defendant has not demonstrated that, as a matter of law, the statute of limitations precludes claims for treatment prior to January 8, 2006. Plaintiff argues that the care rendered to Mr. Torres is precisely the kind of treatment anticipated by the doctrine. Nykorchuck v. Henriguez, 78 NY2d 255 (1991); McDermott v. Torre, supra. Relying on the record, the lack of specifics in the analysis of the care given, and general principles of summary judgment, plaintiff urges that this motion be denied.
In reviewing the records included in the moving papers, it appears that sores reoccurred on similar parts of Mr. Torres' body over the two years and three months that plaintiff was in and out of TCC. The sores were first noted in the record in February 2005, and present on his final discharge on September 6, 2006. Defendant was responsible for decedent's care and the prevention of pressure sores at all times during his admissions. There are sufficient factual issues regarding decedent's care going back to the first admission to deny defendant's motion to preclude claims of medical malpractice prior to two-and-one-half years before commencement of the action. Therefore, the motion is granted solely to preclude issues of ordinary negligence and statutory violations arising prior to July 8, 2005, and all claims of negligent hiring, training, retention, and supervision, and in all other respects denied.
The parties shall appear for a pre-trial conference on January 12, 2010, at 9:30 a.m.
This constitutes the decision and order of the court.
Dated: December, 2009
JOAN B. LOBIS, J.S.C.
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