Zatulovskaya v Four Seasons Nursing & Rehabilitation Ctr.

[*1] Zatulovskaya v Four Seasons Nursing & Rehabilitation Ctr. 2011 NY Slip Op 52222(U) Decided on December 12, 2011 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2011
Supreme Court, Kings County

Larisa Zatulovskaya, as an Administrator of the Estate of the Deceased Grigory Zatulovsky, and Larisa Zatulovskaya, Individually, Plaintiffs,

against

Four Seasons Nursing & Rehabilitation Center, Defendant.



4554/09



Plaintiff Attorney: Frehktman & Associates, 60 Bay 26th Street, Brooklyn, NY 11214

Defendant Attorney: Fumuso, Kelly, Deverna, 110 Marcus Blvd, Hauppauge, NY 11788

David I. Schmidt, J.

In this action to recover damages for medical malpractice, the defendant Parkshore Healthcare, LLC, doing business and sued herein as Four Seasons Nursing & Rehabilitation Center (FNR), moves for summary judgment, pursuant to CPLR 3212, dismissing the complaint of the plaintiff Larisa Zatulovskaya, individually and as the administratrix of the estate of Grigory Zatulovsky (the plaintiff) (motion sequence #2).

Summary

This is an action sounding in medical malpractice allegedly committed by the defendant in connection with its care and treatment of Grigory Zatulovsky (the patient) during his November 12 to November 16, 2007 [FN1] residence at the defendant, resulting in injuries to the patient and his premature death. The principal claim is that the patient was subjected by the defendant to excessive, 60-minute-long physical therapy sessions which led to his suffering a severe post-exercise hypotension (low blood pressure), missing his regularly scheduled dialysis, suffering a cardiogenic [*2]shock,[FN2] and dying three weeks later. The ancillary claim is whether the patient's sacral pressure ulcer was properly treated, and whether its spread was adequately controlled, by the defendant. For the reasons set forth herein, the portion of the defendant's motion for summary judgment seeking the dismissal of the medical malpractice claim regarding the patient's sacral pressure ulcer is granted, and the remainder of its motion is denied.

Background

The following is a chronological summary of the facts, viewed in the light most favorable to the plaintiff as the non-moving party and according her the benefit of every reasonable inference (see Gallagher v New York Post, 14 NY3d 83, 89 [2010]).

Monday, November 12

On November 12 at approximately 9 p.m., the patient, then 59 years old, was transferred to the defendant, a sub-acute rehabilitation facility, from the New York Presbyterian Hospital, Columbia Presbyterian Center (the hospital) for rehabilitation for the duration of one to three months. His principal diagnoses upon his admission to the defendant's facility following his same-day discharge from the hospital were cardiopulmonary collapse, end stage renal disease, post-cardiogenic shock, congestive heart failure, systolic dysfunction, diabetes mellitus, and anemia of chronic disease. He had, since 2005, a bi-V/AICD device (a combination of a bi-ventricular pacemaker and an automatic implantable cardioverter defibrillator) installed so as to curtail rhythm irregularities. His left ventricular ejection fraction, as documented in the hospital's September 11 echocardiographic note, was only 30% (or less than 40%, thereby indicating that his systolic function was not preserved). During his stay at the hospital, he was on dialysis three times per week — Monday, Wednesday, and Friday. He received supplemental oxygen at the flow rate of 3L/min by nasal cannula. Overall, he was very deconditioned, as was noted in the hospital's September 25 rehabilitation medicine follow-up note, as the result of chronic illness and inactivity.

The patient was admitted to the defendant with the hospital referral form, known as the "review instrument,"[FN3] that summarized, among other things, his activities of daily living (ADL) and his physical therapy (PT) at the hospital for the week immediately before his admission to the defendant's facility. According to the ADL section of the review instrument: (1) he required continuous help with eating; otherwise, he would not complete his meal; (2) he walked with constant one-to-one supervision and/or constant physical assistance; and (3) he required an aide to provide constant guidance, steadiness, and/or physical assistance in moving between positions (to or from bed, chair, or standing). According to the PT section of the review instrument, his PT level was "4," indicating that, while he did receive PT for the week immediately preceding his discharge from the [*3]hospital, its level was neither "maintenance" (Level 2) nor "restorative" (Level 3).[FN4] In other words, at the hospital, he underwent PT on an ad hoc basis that depended on his symptomatic response to the exercise and that was dictated, in a large measure, by clinical common sense. In the week immediately before his admission to the defendant's facility, he had PT at the hospital for a total of four days, with the total time of 130 minutes. According to the review instrument, his physical therapy at the hospital consisted of: (1) some bed mobility — supine with moderate assist; (2) some transfer from sit to stand — "contact guard" assistance with a rolling walker (i.e., with the physical therapist providing a direct contact with the patient but without physical assistance); and (3) some ambulation: he ambulated 30 feet one time, and up to 75 feet another time, in each case, with "contact guard" assistance and using a rolling walker.[FN5] The review instrument indicated that his rehabilitation potential with physical therapy was to "maximize [his] functional status."

When the patient was admitted to the defendant's facility in the evening of November 12, a nurse recorded his blood pressure at 98 or 100 over 68; his pulse rate, at 68 beats per minute, and his respiratory rate, at 16 breaths per minute. His functionality upon admission was low: he required "extensive assistance" from one aide for eating, and had "total dependence" on others for ambulation, transfer, dressing, toileting, personal hygiene, bed mobility, and bath. He was placed [*4]on the 3L/min round-the-clock supplemental oxygen via nasal cannula.

A separate pain assessment was performed on the night of his admission. The patient's complaint of sacral pain from his skin ulcer was addressed by an order for Percocet 5/325 (a combination of semisynthetic pure opioid oxycodone and acetaminophen), two tablets, to be taken every four hours as needed. Percocet, according to its manufacturer, has cardiac side effects: it causes respiratory depression and may be associated with orthostatic hypotension.[FN6]

Tuesday, November 13

On November 13, the patient was prescribed PT by Dr. Boris Khorets, a physician affiliated with the defendant. The PT regimen, as prescribed by Dr. Khorets, differed in both its intensity and duration from the one administered to the patient at the hospital before his discharge. Unlike the lower level, or "Level 4," hospital PT, the defendant's PT was at a higher level, "Level 3," known as the "restorative" PT, which is prescribed when there is positive potential for improved functional status within a short and predictable period of time.[FN7] Unlike the duration of the hospital PT sessions (a total of 130 minutes per week, or about 18.6 minutes per day), the defendant's PT was for a total of 300 minutes per week, or 60 minutes of PT per day at the frequency of 5 times per week, with the minimum duration of 4 weeks. The defendant's PT, as ordered by Dr. Khorets on November 13, was co-signed by the defendant's nurse as well as the by defendant's regional care coordinator on November 17, 2007.[FN8]

On November 13, the patient was screened by one of the defendant's physical therapists. On a screening examination, the patient's muscle strength was grossly graded at 3+/5 [FN9] on both of his lower extremities; his endurance was poor; and his standing "dynamic" (movement) and "static" (no movement) were both poor. Although he was able to ambulate about 15 feet with a rolling walker and with the assistance of an aide, his walk was slow, his foot clearance was reduced, and he was short of breath. The screening recommended that the patient ambulate from bed to bathroom with a rolling walker with the maximum assistance of one aide.

In addition, the patient was evaluated by the physical therapist. As part of his evaluation, the [*5]patient was assigned short-term and long-term goals for his PT. His short-term goals were: (1) to "increase muscle strength on both lower extremities by ½ grade through partial resistance with weights to increase muscle control and stability during transfer and ambulation training"; (2) to "increase endurance to [a] prior [condition] through conditioning to increase activity tolerance"; and (3) to "ambulate about 25 feet, with 2-3 repetitions, with a rolling walker with moderate or maximum assistance by one person, plus verbal cues on correct gait pattern and correct breathing techniques." According to the pretrial testimony of the physical therapist assistant, these short-term goals were to be accomplished by the end of one week.

The patient was also assigned long-term goals by the physical therapist. Such goals were ambitious, projecting that the patient would be able to "ambulate unlimited distance indoors and outdoors without acute distress and independently with good dynamic and balance, correct gait pattern and good environmental processing," as well as "negotiate a flight of stairs up and down with one handrail support independently, with good safety skills." Given that the patient's anticipated stay at the defendant's facility was intended to last between one and three months, it is fair to infer that the defendant's long-term goals to have the patient "ambulate unlimited distance indoors and outdoors without acute distress and independently" were to be accomplished by no later than the end of three months.

Also on November 13, the patient was separately evaluated by physical therapist assistant (PTA) Carmen Heredia, who, according to her pretrial testimony (at pages 67-68 of her deposition), was familiar with the patient's review instrument. PTA Heredia found, in her 30-minute evaluation of the patient, that he had "poor (-)" endurance; that his balance on standing "dynamic" (movement) was "poor (+)"; and that he was able to ambulate using rolling walker for 15 feet with the moderate/maximum assistance of one aide with slow cadence and decreased foot clearance.

In the late afternoon on November 13, the patient underwent hemodialysis. According to the nursing notes, he appeared dehydrated and could tolerate only one hour of hemodialysis which was discontinued following his complaints of generalized weakness. According to the nursing notes, whereas his blood pressure before hemodialysis was 138/60, it dropped to 90/56 upon conclusion of hemodialysis at 5:45 p.m.[FN10]

Wednesday, November 14

In the early afternoon on November 14, the patient underwent physical therapy at the direction of PTA Heredia. The November 14th session lasted 60 minutes. According to PTA Heredia (at pages 48 and 13 of her deposition), the patient was pre-medicated (which may have included Percocet), and he was connected to his oxygen tank by nasal cannula. When the plaintiff visited the patient after this PT session, she observed that his complexion was pale and his lips were blue; he told her that he could hardly breathe because the therapy that day had been too rigorous.

Thursday, November 15

In the morning of November 15, the plaintiff telephoned a Mrs. Weiss, an occupational therapist supervisor who shared an office with the PT department at the defendant's facility, advising [*6]her that the previous day's PT session had been too intense for the patient. Although, according to the plaintiff, Mrs. Weiss informed her that the exercise would be lightened, PTA Heredia did not recall whether Mrs. Weiss communicated to her the plaintiff's request, or not.

In the early afternoon on November 15, the patient underwent another 60-minute PT session at the direction of PTA Heredia. By the end of the November 15th session, he had walked a distance of 25 feet with a rolling walker — not once, but twice.

That afternoon, the patient's blood pressure dropped to 70/50, which was too low for the defendant to perform the patient's scheduled hemodialysis. That night, when his son telephoned the patient, he complained that he was out of breath and over-exercised.[FN11]

There are many factual voids in the defendant's medical records. In particular, the defendant's medical records contain no readings of the patient's blood pressure and oxygen saturation levels at rest, peak exercise, and post-exercise for each of his PT sessions. The defendant's medical records do not point, one way or the other, whether a pulse oximeter (a portable device measuring the heart rate and oxygen saturation) was attached to the patient's finger at the beginning, and was taken off at the end, of each PT session; nor is there any evidence that the patient's hands were examined to ensure that his fingers were warm and well perfused before and after each PT session. Likewise, there is no evidence that PTA Heredia was supervised by a physical therapist during her PT sessions with the patient.[FN12] Instead, PTA Heredia's pretrial deposition testimony attempts to fill some of these voids. According to PTA Heredia, it was her custom and practice to measure any patient's blood pressure and oxygen saturation levels before and after every PT session, but that she would record those measurements only if they were outside of "normal" limits.

Friday, November 16

At approximately 7 p.m. on November 16, the patient was removed from the defendant's facility and re-hospitalized with decompensation and acute exacerbations of symptoms, including hypotension (70/40), heart failure, and renal failure. A notation in the November 17th continuation sheet at the hospital indicates that the patient's heart was decompensated because of the "inability to dialyze [secondary to] hypotension." [*7]

According to PTA Heredia's note, the patient's functional status at the time of his removal from the defendant's facility was as follows: (1) endurance — poor requiring rest period after performing a task; (2) muscle strength on bilateral lower extremities — 3+/5; (3) balance dynamic standing using rolling walker as support increased — poor(+)/fair (-); (4) transfer from sit to stand by pushing up from a rolling walker armrest with a moderate assistance/maximum assistance of one aide, plus visual cues for hand placement; and (5) ambulation — able to ambulate using rolling walker for a distance of 25 feet, with two repetitions, with a moderate assistance/maximum assistance of one aide.

The Aftermath

On Saturday morning, November 17, the patient experienced an episode of pulseless electrical activity (a type of arrhythmia) followed by cardiac arrest during a transfusion of fresh frozen plasma. According to a hospital chart note, the patient's cardiac arrest was likely secondary to his underlying cardiac disease, rather than to a circulatory overload or the transfusion-related acute lung injury.

On Sunday, November 18, the patient was noted to be "critically ill, requiring significant pressors [medications used to treat hypotension]." His medical condition further declined throughout his re-hospitalization, and he remained hospitalized until his death on December 10 from heart failure. He is survived by his wife, the plaintiff herein, and three adult sons.

The Lawsuit

The plaintiff's complaint alleges seven causes of action: (1) negligence, (2) negligent supervision, (3) lack of informed consent, (4) medical malpractice, (5) loss of consortium, (6) a claim for funeral and burial expenses pursuant to EPTL 5-4.3 (a), and (7) violation of Public Health Law §§ 2801-d, 2803-c, and 10 NYCRR 415.12. The causes of action are amplified in the plaintiff's bill of particulars to focus on the allegations of negligence arising from the PT regimen as well as the treatment and spread of his skin ulcer. The plaintiff's bill of particulars alleges that the defendant and its physicians (and, particularly, Dr. Khorets), physical therapists, and nurses: (1) failed to review the patient's medical records and history before prescribing and initiating physical therapy; (2) failed to prescribe proper PT according to his medical records and history; (3) subjected the patient to excessive PT; and (4) failed to treat his skin ulcer and stop it from spreading.

Following completion of discovery, the plaintiff filed a note of issue on December 14, 2010, and the defendant served the instant motion on February 11, 2011. The motion was fully submitted on June 30, 2011 and the decision was reserved.

Analysis

Pursuant to CPLR 3212 (b), a "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 408 [1986]). Once a sufficient showing is made, "the burden shifts to the plaintiff to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v Felder, 33 AD3d 645, 645-646 [2d Dept 2006]). In the medical malpractice contest, "a defendant doctor has the burden of establishing the absence of any departure from a good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury" (Yankus v Kelly, 72 AD3d 1068, 1069 [2d Dept 2010]). [*8]

As a general matter, summary judgment is the procedural equivalent of a trial, and thus it should not be granted where there is any doubt as to the existence of a material issue (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). Thus, when the existence of an issue of fact is "fairly debatable," summary judgment should be denied (see Stone v Goodson, 8 NY2d 8, 12 [1960], rearg denied 8 NY2d 934 [1960]). The test that follows from this principle is that the court's function on a motion for summary judgment is issue finding, rather than issue determination (see Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941[1957]). In addition to identifying factual disputes that must be tried, the court will also resolve any issues of law raised by the instant motions and thereby "narrow the issues to be tried to the genuine issues presented" (Alvia v Mutual Redevelopment Houses, Inc., 56 AD3d 311, 314 [1st Dept 2008]).

(a)

The court notes at the outset that, in moving for summary judgment, the defendant does not address the plaintiff's seventh cause of action which alleges the violation of specified sections of the Public Health Law and New York State Rules and Regulations. The court, therefore, does not address that cause of action either (see Carthon v Buffalo Gen. Hosp. Deaconess Skilled Nursing Facility Div., 83 AD3d 1404, 1405 [4th Dept 2011]).

The court further notes that, in her opposition to the instant motion, the plaintiff's medical expert does not address her skin ulcer claim. In light of the defendant's prima facie showing, through an affirmation of its medical expert, that the patient's skin ulcer predated his admission to the defendant, that the defendant's staff appropriately treated it and that it did not deteriorate or spread during his stay at the defendant, the portion of the defendant's motion for summary judgment seeking the dismissal of the medical malpractice claim, solely to the extent that such claim is predicated upon the defendant's failure to properly treat and contain the patient's skin ulcer, is granted (see Rivera v Kleinman, 16 NY3d 757, 759 [2011]).

(b)

Turning to the defendant's prima showing of its defense to the plaintiff's physical therapy claim, the court observes that the defendant's motion is supported by the affirmation of Jeffrey Farber, M.D., who is licensed to practice medicine in New York and is board certified in internal medicine with a sub-specialty in geriatrics. Dr. Farber opines, based on his review of the patient's hospital records, the defendant's medical records, the bill of particulars and the examination before trial transcripts, that the treatment provided by the defendant in regard to physical therapy was at all times within accepted standards of medical care, and that nothing the defendant did or did not do exacerbated the patient's injuries and caused his premature death. Dr. Farber states that the patient's PT regimen at the defendant's facility fit within accepted standards of medical care at a sub-acute rehabilitation facility and was "certainly not excessive'" (¶ 12). Dr. Farber posits — albeit without referring to any supporting medical record — that the patient was "transferred to [the defendant], not because he couldn't tolerate more therapy, but because more frequent physical therapy was not available in the acute hospital setting" (¶ 11).[FN13] Dr. Farber accepts as given that the PT was properly prescribed to this particular patient, and disregards the defendant's failure during the patient's [*9]screening to document any contraindications to exercise, such as worsening congestive heart failure symptoms.

Dr. Farber next designates and separately addresses what he considers to be the three principal characteristics of the patient's PT treatment at the defendant's facility: (1) its brief duration, (2) the limited amount of exercise performed during the sessions, and (3) the lack of complaints or evidence of distress exhibited by the patient during his PT sessions (¶ 12). Regarding the brevity of the PT program, Dr. Farber maintains that the two 60-minute PT sessions that the patient underwent at the defendant's facility on two separate, albeit consecutive, days were not excessive (¶ 13). In this regard, Dr. Farber opines that the defendant's PT program was similar to that employed in the hospital (¶ 13). In discussing this aspect of the patient's PT regimen, however, Dr. Farber fails to note that the hospital had PT only four, not five, therapy days per seven days, thereby allowing for the rest periods of approximately 48 hours between exercise sessions to allow muscle recuperation without deconditioning.

As to the second element — the limited extent of PT performed — Dr. Farber opines that, inasmuch as the PT consisted of the patient walking 25 feet on two occasions (with "rest periods," according to PTA Heredia's testimony), this exercise regimen was similar to, if not less than, the PT regimen that the patient performed at the hospital before his discharge, where at some point the patient had walked up to 75 feet (¶¶ 14-15). Yet, Dr. Farber overlooks the point that for a heart-failure patient on supplemental oxygen, walking 25 feet on two occasions — and the record is unclear whether the patient walked twice on the same day or whether he walked once on each of the two consecutive days at the defendant's facility — is not equivalent to walking up to 75 feet on one occasion at the hospital. More importantly, Dr. Farber disregards the results of the defendant's PT evaluation, which was performed only one day before the commencement of the PT regimen, that the patient could only ambulate about 15 feet, that his walk was slow, his foot clearance was reduced, and he was short of breath. Dr. Farber fails to explain why at the PT sessions that were held 1-2 days after his admission evaluation at the defendant's facility, the patient suddenly succeeded in ambulating 25 feet on two occasions when he could only walk 15 feet at the admission evaluation. As the patient summarized it in a telephone conversation with his son, "they [the defendant] prepared [him] for the body building contest" (Igor Zatulovsky Tr at 24). In this regard, Dr. Farber fails to appreciate the obvious conclusion that flows from the patient's medical records: the functional limitations of heart failure occur not only at high workloads but also at sub-maximal workloads, which are levels that correspond to many activities of daily living for this type of patients. Walking even 25 feet with a rolling walker was difficult for this particular patient.

Dr. Farber's opinion is further weakened by his narrow emphasis on the type of exercises performed by the patient. It may be true that "the exercises performed [at the defendant's facility] — taken alone — were absolutely within the standard of therapeutic care . . ." (¶ 15 [emphasis added]). Yet, physical therapy is geared toward a particular individual whose medical condition is under consideration. The PT cannot be "taken alone" as Dr. Farber maintains, but rather must be viewed against the backdrop of the patient's entire medical condition. Here, the impact of the PT on the patient's cardiovascular health, as well as his overall health, was negative. The patient, who already had been experiencing episodes of hypotension (as evidenced by his inability to tolerate a full hemodialysis session on November 13), suffered a severe post-exercise hypotension of 70/50 following his PT session on November 15. With a severe hypotension, he did not receive [*10]hemodialysis at the defendant's facility; he relapsed and was re-hospitalized on November 16, only a day after his second PT session at the defendant's facility.

With respect to the third and final defense articulated by Dr. Farber — that the patient allegedly did not complain during his PT sessions and that PTA Heredia appropriately monitored his vital signs before and after each PT session — Dr. Farber's conclusion in this regard necessarily rises or falls with the credibility of PTA Heredia's deposition testimony. In accepting at face value PTA Heredia's self-serving deposition testimony that she remembered the patient, that she received no complaints from him during the PT sessions, and that she monitored his vital signs before and after each session, Dr. Farber glibly overlooks the basic requirement that PTA Heredia must correctly describe the patient. Yet, her description of the key features of the patient was wrong. Whereas she described the patient as a medium-sized man with normal weight (PTA Carmen Heredia Tr at 71), the patient was actually short and obese: the patient stood 5'2" tall and weighed 186.7 pounds.[FN14] Equally important, while Dr. Farber has no objection to PTA Heredia's admitted failure to document the patient's vital signs in his chart, the medical rules and regulations are not so forgiving. The lack of supporting medical documentation, in and of itself, constituted unprofessional conduct on PTA Heredia's part (see 8 NYCRR 29.2 [a] [3] [it is unprofessional conduct for a physical therapist assistant to fail "to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient"]). Finally and crucially, both the plaintiff and the patient's son testified that the patient showed obvious distress after each of the two physical therapy sessions, to an extent that the plaintiff was compelled to request the defendant's employee to decrease the exercise.

Moving from the issue of departures to the question of causation, Dr. Farber opines that the patient's prognosis was so grave that nothing the defendant did or did not do caused a worsening of his terminal condition, which he characterized as the "clinical end-stage heart failure" (¶ 19). According to Dr. Farber, "patients with end-stage congestive heart failure can easily develop an acute exacerbation with any number of common occurrences" and that oftentimes "the cause of an acute exacerbation is not known" (¶ 20). Dr. Farber concludes that the deterioration of the patient's heart function during his stay at the defendant's facility was caused by "the grave nature of the underlying advanced stage disease process itself," rather than by his PT regimen at the defendant's facility (¶ 21). Nonetheless, the patient's life in this case was not a "touch and go" proposition as Dr. Farber suggests; rather, when the patient was transferred to the defendant's facility, he was clinically and medically stable. Not only is the defendant's facility a rehabilitation center, rather than a hospice, but also the defendant's physician Dr. Khorets prescribed him a course of restorative PT for a minimum period of 4 weeks. This abbreviated 4-week traditional cardiac rehabilitation program would hardly be suitable for the patient, who, in Dr. Farber's view, taken to its logical conclusion, needed the end-of-life care and was at the death's door. Moreover, Dr. Farber's generalization that patients with heart failure experience a relatively unpredictable course of illness characterized by [*11]acute exacerbations of symptoms, rings hollow, as it is not supported by any statistical evidence; for example, the mortality rate at 30 days post-hospitalization, the death and re-hospitalization rates at 60 days post-discharge, the post-discharge re-hospitalization rate at 6 month, and the annual mortality rates in stable ambulatory patients with chronic heart failure. Lastly, Dr. Farber fails to analyze the prognostic markers to provide at least some insight on the chance of survival of the plaintiff's decedent.

In view of the aforementioned evidentiary deficiencies, Dr. Farber's affirmation fails to establish the defendant's prima facie showing that, with respect to the plaintiff's PT claim, the defendant was free from negligence and that the defendant's alleged act and omission

did not proximately cause any enhanced or aggravated injuries of the patient and his premature death. In any event, the affirmation of plaintiff's medical expert successfully raises triable issues of fact as to the departure and the causation elements of the plaintiff's PT medical malpractice claim.

(c)

Plaintiff's medical expert, Dr. Bruce D. Charash, who is licensed to practice medicine in New York and is board certified in internal medicine and cardiology, enumerates a list of medical departures which he maintains were committed by the defendant. According to Dr. Charash, the defendant implemented an exercise regimen that was too physically intense for the patient as a result of its initial failure to take his medical problems into consideration, and as a result of its repeated failure to measure and document the patient's blood pressure and oxygen saturation. Dr. Charash bases his opinion on what he submits are important evaluations within accepted standards of medical care for patients who are in a compromised cardiac state, but which evaluations were not performed at the defendant's facility. He states that the defendant should have performed a cardiac stress test, such as a twelve-lead EKG with rhythm strip and/or sub-maximal stress test, known as the Persantine Stress Test, before embarking the patient on a regimen of rigorous physical therapy (¶ 5 [a]). He further states that the patient should have been connected to a portable cardiac monitor during his PT sessions, and that his vital signs should have been documented in his chart (¶¶ 5 [a], [k], [l]).

According to Dr. Charash, the extent of PT to which the patient was subjected was drastically and deleteriously increased from a total of 130 minutes in the week immediately before his discharge from the hospital, or about 18.6 minutes per day, to a total of 300 minutes per week, or 60 minutes per day, during his stay at the defendant's facility (¶ 5 [h]).[FN15] Dr. Charash opines that the PT regimen should have been decreased after the plaintiff telephoned the defendant's employee to alert her of the patient's pale color and blue lips (¶ 5 [o]). Dr. Charash further opines that the defendant's physician, Dr. Khorets, should have examined the patient on November 15 when the patient's blood pressure fell to 70/50, which is a dangerously low level; however, no medical action was taken in this regard until the patient was re-hospitalized the following day (¶ 5 [q]).

On the issue of causation, Dr. Charash opines that the defendant departed from good and accepted medical practice by subjecting the patient to an overly aggressive PT regimen and that the patient's over-exertion was "a substantial factor in bringing about [the patient's] cardiac relapse and [*12]death" (¶ 7). According to Dr. Charash, "[t]he patient had stabilized and his cardiac condition was improving while at NY Presbyterian which led them to transfer him to [the defendant's facility]. After only 5 days at [the defendant's facility], he was forced back into a hospital where he died" (¶ 7).[FN16]

The court finds that Dr. Charash's opinion as to both the medical departures and the causation is sufficient for summary judgment purposes to demonstrate that genuine issues of fact exist precluding summary judgment in the defendant's favor. The defendant's alleged acts and omissions in regard to the patient's PT regimen stand in stark contrast to the light and intermittent PT which the patient received at the hospital. For example, on November 6, he performed a 30-minute session of bed-based mobility exercises, knee extensions, and forward arm punches. During that PT session, the hospital therapist monitored and recorded his blood oxygen saturation level and blood pressure, which sunk to a low level when he sat up from supine and recovered when he lay back down.

In sum, upon the opposing expert opinions submitted, triable issues of fact exist with respect to whether the physical therapy program to which the defendant subjected the patient represented a departure from accepted medical standards and whether it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury and premature death. The court rejects the defendant's contention that the patient died of natural causes. Even assuming, arguendo, that the defendant met its initial burden of establishing that the patient died from his preexisting medical conditions, the court concludes that the evidence submitted by the plaintiff in opposition to the motion is sufficient to raise a triable issue of fact whether the patient's death was accelerated by the defendant's administration of a PT regimen. Where, as here, evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased his injury, the "plaintiff's evidence of proximate cause . . . may be found legally sufficient even if his . . . expert is unable to quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased the injury" (Semel v Guzman, 84 AD3d 1054, 1055-1056 [2d Dept 2011]). Accordingly, the defendant's motion, insofar as it seeks dismissal of the PT claim, is denied (see Reyz v Khelemsky, 10 AD3d 714, 715 [2d Dept 2004]).

The parties are reminded to appear at the Settlement Conference Part on January 17, 2012.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:All subsequent references to dates are to the year 2007, unless otherwise indicated.

Footnote 2:Cardiogenic shock is a syndrome of extreme cardiovascular "forward" failure manifesting as reduced systolic blood pressure and low perfusion of vital organs. A "forward" failure is characterized by the end-organ hypoperfusion.

Footnote 3:The full name of this document is the New York State Department of Health Hospital & Community Patient Review Instrument (Form DOH-694 [9/99]).

Footnote 4:According to the review instrument instructions (at pages 15-16), "maintenance therapy" is provided when there is "[n]o potential for increased functional ADL ability. Therapy is provided to maintain and/or retard deterioration of current functional/ADL status. Therapy plan of care and progress notes should support that patient has no potential for further or any significant improvement." In contrast, according to the review instrument instructions (at page 15), "restorative therapy" is provided when "[t]here IS positive potential for improved functional status within a short and predictable period of time. Therapy plan of care and progress notes should support that patient has this potential/is improving" (capitalization in the original). The review instrument instructions are available at http://www.health.ny.gov/forms/instructions/doh-694_instructions.pdf (accessed Nov. 30, 2011).

Footnote 5:For example, his 30-minute PT session at the hospital on November 7 is described as follows:

Vital Signs: His blood pressure was 86/50 at rest, but dropped to 60/40 in after five minutes of sitting. He was asymptomatic. His blood pressure recovered to 70/40 while supine. His oxygen saturation was 96% throughout the session, and both a nurse and a physician assistant were advised by the physical therapist of this reading.

Therapeutic Exercises: Knee extensions bilaterally in sitting position, 30 times; bilateral upper extremity punches forward, 10 times.

Therapeutic Activities: Bed Mobility — Independent in rolling; scooting with moderate assistance to avoid a shearing (a pressure injury) while in the supine position. "Supine to sit with moderate assist[;] Sit to supine with contact guard [i.e., with direct contact from the therapist but without actual physical assistance]." Transfer — Sit to Stand: "deferred today due to decreased BP [blood pressure]."

Footnote 6:See manufacturer's package insert as of November 2006 (reproduced in the 2008 Physicians' Desk Reference, 62nd ed., page 1128).

Footnote 7:See review instrument instructions (at page 15) for the definition of "restorative therapy" (available at http://www.health.ny.gov/forms/instructions/doh-694_instructions.pdf [accessed Nov. 30, 2011]).

Footnote 8:In addition to exercise training, Dr. Khorets prescribed "restorative" occupational therapy (OT) at the frequency of 5 times per week with each session lasting 60 minutes and with a minimal duration of 4 weeks. It bears noting that the patient had no OT at the hospital. Because OT is separate from PT and was performed by a different individual at the defendant's facility, the two must be viewed separately, and the plaintiff's attempt to combine them into one is improper.

Footnote 9:Muscle strength of "3" indicates that the joint can be moved only against gravity with the examiner's resistance completely removed. Muscle strength of "5" means that muscle contracts normally against full resistance.

Footnote 10:It is unclear why the patient underwent hemodialysis on Tuesday, November 13, when he had one at the hospital the day before; moreover, the physician order at the defendant indicated that he was to undergo hemodialysis three times weekly (Monday, Wednesday, and Friday), which in this case would mean November 12, 14, and 16.

Footnote 11:Although the patient also underwent occupational therapy sessions of 60 minute each on November 14 and 15, the plaintiff has not elaborated on the type of activities performed during those sessions, has not deposed an occupational therapist, and has provided no evidence of the significance of these sessions to the plaintiff's decline and subsequent death. Rather, the plaintiff has considered the occupational therapy sessions to be equivalent to the physical therapy sessions. On the record presented to the court at this juncture, the court sees no justifiable basis for doing so and, accordingly, attaches no independent legal significance to the occupational therapy sessions.

Footnote 12:By law, a physical therapist assistant must be supervised by a physical therapist (see Education Law § 6738 [a] ["A physical therapist assistant' means a person certified in accordance with this article who works under the supervision of a licensed physical therapist performing such patient related activities as are assigned by the supervising physical therapist. . . Supervision of a physical therapist assistant by a licensed physical therapist shall be on-site supervision, but not necessarily direct personal supervision. . ."]).

Footnote 13:According to the plaintiff's deposition testimony (at page 45 of her deposition), the patient was transferred to the defendant's facility because he was improving and so could go home soon.

Footnote 14:In this regard, the court notes that defense counsel failed to include the patient's photograph with the defendant's medical records submitted in support of the instant motion, even though, as PTA Heredia testified (at page 79 of her pretrial deposition), the patient's photograph is part of the defendant's medical record. Separately, the court notes that the defense counsel has failed to submit certified deposition transcripts of the plaintiff and her son as part of the record on the instant motion.

Footnote 15:Dr. Charash's assertion (in ¶ 5 [g] of his affirmation) that the patient's physical exercise was increased to two hours per day amounts to overkill. As noted, the patient had one hour of PT per day. The second hour was for occupational therapy.

Footnote 16:Actually, the patient spent under 4 full days, or only 94 hours, in the defendant's facility from 9 p.m. on November 12 to 7 p.m. on November 16.