Studdivant v Bronx-Lebanon Hosp. Ctr.
Annotate this CaseDecided on October 26, 2009
Supreme Court, Bronx County
Elizabeth Studdivant, as proposed administratrix for the estate of JULIA JENNINGS, Plaintiff,
against
Bronx-Lebanon Hospital Center, Defendant.
15504/2005
For Plaintiff:
David Grossman, Esq.
Kelly Grossman & Flanagan LLP
901 A Motor Parkway
Hauppauge, New York 11788
For Defendant:
Eric Gingold, Esq.
Heidell, Pittoni, Murphy & Bach LLP
90 Park Avenue
New York, New York 10016
Lucindo Suarez, J.
Upon defendant's notice of motion dated July 24, 2009 and the affirmation, affidavits (3), memorandum of law and exhibits submitted in support thereof; plaintiff's affirmation in opposition dated August 27, 2009 and the affidavits (2) and exhibits submitted therewith; defendant's affirmation in reply dated October 15, 2009; and due deliberation; the court finds:
In this medical malpractice action, plaintiff claims that defendant's care rendered to the decedent from November 3, 2003 through and including November 25, 2009, and specifically defendant's failure to adequately treat decedent's decubitus ulcers and the placement of an intravenous line on the dorsal aspect of decedent's right foot, led to decedent's death. Plaintiff's cause of action alleging wrongful death has been withdrawn by stipulation. Defendant moves for [*2]summary judgment on the bases that the care rendered was within acceptable medical standards, that decedent's condition worsened as a result of care decedent received outside of its facilities and by persons other than its employees or agents, and that decedent died from causes unrelated to the decubitus ulcers. It is uncontroverted that plaintiff suffered from a number of serious life-threatening ailments, including end-stage Alzheimer's Disease, congestive heart failure and malnutrition.
Defendant's expert physician averred that the hospital provided adequate care to decedent throughout her numerous admissions, promptly and properly administering care to plaintiff's wounds, and that decedent's daughter and primary caregiver obstructed decedent's care and decreased her likelihood of recovery or stabilization by refusing to participate in decedent's care in a manner recommended by the defendant. Defendant's expert physician averred that the actions of decedent's family members were unreasonable and against medical advice, resulting in a decrease in decedent's condition outside the hospital after plaintiff's condition having improved upon admission. Having established prima facie entitlement to summary judgment, it was incumbent upon plaintiff to come forward with evidence in admissible form creating an issue of material fact.
The affidavits of plaintiff's experts were conclusory and did not set forth adequate bases for the opinions rendered. See DeCintio v. Lawrence Hosp., 33 AD3d 329, 821 N.Y.S.2d 587 (1st Dep't 2006), appeal denied, 2006 NY App. Div. LEXIS 13985 (1st Dep't Nov. 21, 2006). The affidavits were also limited primarily to the wound on the dorsal aspect of plaintiff's right foot and the placement of the intravenous line, and therefore did not address the majority of the allegations in plaintiff's bill of particulars. Both the affidavits of plaintiff's nurse expert and plaintiff's physician expert failed to address how defendant's treatment of decedent worsened the conditions with which decedent presented to defendant, thereby insufficiently addressing the issue of proximate cause. See Nealy v. US Healthcare HMO, 93 NY2d 209, 711 N.E.2d 621, 689 N.Y.S.2d 406 (1999), reargument denied, 93 NY2d 958, 716 N.E.2d 700, 694 N.Y.S.2d 635 (1999). Plaintiff therefore failed to present questions of material fact requiring a trial of the action. See Johnson v. Yeshiva University, 42 NY2d 818, 364 N.E.2d 1340, 396 N.Y.S.2d 647 (1977), rehearing denied, 42 NY2d 1015, 368 N.E.2d 289, 398 N.Y.S.2d 1033 (1977).
Accordingly, it is
ORDERED, that defendant's motion for summary judgment is granted; and it is further
ORDERED, that plaintiff's complaint is dismissed; and it is further
ORDERED, that the clerk of the court is directed to enter judgment in favor of defendant dismissing plaintiff's complaint.
This constitutes the decision and order of the court.
Dated: October 26, 2009
____________________________
Lucindo Suarez, J.S.C.
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