Burns v Rockville Skilled Nursing & Rehabilitation Ctr., LLC

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Burns v Rockville Skilled Nursing & Rehabilitation Ctr., LLC 2012 NY Slip Op 31176(U) April 17, 2012 Supreme Court, Nassau County Docket Number: 601828/09 Judge: Jeffrey S. Brown Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. --------------------------------------------------------------------------- [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRIAL/IAS PART 17 KATHRYN BURNS, as Executrix of the Estate of WILLIAM BURNS, Deceased, Plaintiff, Index No. 601828/09 - against - Mot. Seq. Mot. Date 12. ROCKVILLE SKILLED NURSING & REHABILITATION CENTER, LLC and SOUTH NASSAU COMMUNITIES HOSPITAL, Defendants. Submit Date 2. 27. The following papers were read on this motion: Papers Numbered Amended Notice of Motion , Affidavits (Affirmations), Exhibits Annexed.......... Answering Affidavit............................................................................................. Reply Affidavit..................................................................................................... This motion by the plaintiff Kathrn Bums as Executrix of the Estate of Wiliam Bums (Bums) for an order pursuant to CPLR 3212(e) granting her partial summar judgment: (1) holding defendant Rockvile Skiled Nursing & Rehabilitation Center (Rockville) liable on its third cause of action pursuant to Public Health Law 9 2801- d; dismissing Rockvile ' s 16 affirmative defense in response to said cause of action; and holding Rockvile liable for punitive damages based upon a finding of " reckless disregard" with respect to that cause of action is determined as provided herein. [* 2] This is an action to recover damages for medical malpractice , violations of the Public Health Law and wrongful death. The plaintiff seeks summary judgment against Rockvile predicated upon its claim pursuant to the Public Health Law 9 280 1- d as well as its claim for punitive damages. The facts pertinent to the determination of this motion are as follows: Bums was a patient at Rockvile from August 7 2007 through Februar Februar 4 , 2008 through Februar 8, 4 2008. From 2008 , Bums was treated at defendant South Nassau Communities Hospital for a broken hip. He was readmitted to Rockvile on February 8 , 2008 during which time ulcers on his buttocks and heel deteriorated until Februar 27 , 2008 , on which date he was readmitted to South Nassau Communities Hospital where he remained until March 6 2008. From March 6, 2008 until his demise on March 14 , 2008 , Bums was cared for at Beach Terrace Care Center. At her examination before trial , Charmaine Lewis , R.N. , Rockvile Director of Nursing, admitted that there were numerous entries on Bums ' char purorting to reflect observations of and care rendered to him at times when he was in fact absent from the facility, as well as times where no chart entries were made , despite the fact he was present at Rockvile. In support of her motion , the plaintiff has submitted the affidavit of Jeanette Sodor , R.N. Having reviewed Bums ' records kept by Rockvile (August 7 , 2007 - Februar 17 2008) as well as North Shore University Hospital (August 3 , 2007 - August 7 2007), South Nassau Community Hospital (February 4 , 2008 - Februar 8 , 2008) and Beach Terrace Care Center [* 3] (March 6 , 2008 - March 14 , 2008), as well as the deposition testimony of Charmaine Lewis , Director of Nursing, she opines that " numerous entries made purporting to record care rendered to and observations of (Bums) by CNA' S at times when (he) was physically absent from the facility, and additional areas where no charing at all occured despite the fact that (he) was in the facility constitutes a clinical Record Violation and is a departure from accepted standards for medical and nursing records. " She opines that: (t)he right to a complete and accurate set of clinical records is. . . a ' right or benefit' that was guaranteed to Mr. Bums under PHL 9 2801- ; that " (w)ithout an accurate and complete clinical record , defendant Rockvile canot demonstrate that it undertook ' every reasonable effort' to prevent injur to Mr. Bums ; and , that (a)bsent a clinical record that is complete and accurate , in (her) experience a facility canot demonstrate that it undertook ' every reasonable effort' to prevent pressure sores. She further opines that: (t)he inclusion of inaccurate and , indeed , false information in Mr. Bums medical record , of procedures that did not and could not have occurred , is in and of itself an ' injury ' to Mr. Bums , for it could be detrimental to his health when such records are relied upon by other health care professionals involved in his treatment. Indeed , Ms. Sodor opines that the errors in Bums ' medical records justify rejection of his record in its entirety as " unworthy of belief. " Furhermore , she characterizes Rockvile s record keeping errors as " reckless conduct." In support of her motion , the plaintiff maintains that based upon the uncontroverted fact that char entries were made for Bums following his discharge from Rockvile at a time when he was not even a patient there , Rockville failed to maintain " complete , accurately documented readily accessible and systematically organized" records as required by 10 NYCRR 415. 22 and [* 4] concomitantly failed to provide him with " adequate and appropriate medical care " as required by Public Health Law 9 2803-c(1)( e). The plaintiff additionally maintains that in view of the state of its records , it wil not be possible for Rockvile to demonstrate that " it used every reasonable effort to prevent injur" to Bums. Plaintiff seeks summary judgment declaring as such , thereby granting her sumar judgment with respect to liability on her Public Health Law claim. The plaintiff also seeks summary judgment holding Rockvile liable for punitive damages pursuant to Public Health Law 9 2803- d(2) based upon Bums ' uncontroverted , blatantly erroneous medical records. On a motion for summar judgment pursuant to CPLR 3212 , the proponent must make a prima facie showing of entitlement to judgment as a matter of law , tendering suffcient evidence (Sheppard-Mobley to demonstrate the absence of any material issues of fact." , 74 (2 NY2d 320 Dept 2004), affd as mod , 4 NY3d 627 (2005), citing 10 AD3d Prospect Hosp. , 68 Failure to make such Winegrad New York Univ. Med. Ctr. 64 NY2d 851 , 853 (1985)). prima facie 324 (1986); showing requires a denial of the motion , regardless of the sufficiency of the opposing papers. (Sheppard-Mobley Prospect Hosp. Alvarez King, supra; King, supra , at p. 74; Alvarez New York Univ. Med. Ctr. supra). Once the movant's burden Winegrad is met , the burden shifts to the opposing party to establish the existence of a material issue of fact (Alvarez Prospect Hosp. supra , at p. 324). The evidence presented by the opponents of summar judgment must be accepted as true and they must be given the benefit of every reasonable inference. (See 521 (2 Dept 2006), citing Demishick Community Housing Management Corp. 34 AD3d 518 Secofv Greens Condominium 158 AD2d 591 (2 Dept 1990)). [* 5] Public Health Law 9 280 I- d imposes statutory liability on " any residential health care facility that deprives any patient of said facility of any right or benefit. . . created or established for the well being of the patient by the terms of any contract , by any state statute , code , rule or regulation or by any applicable federal statute , code , rule or regulation. " Home for Aged (See Zeides Hebrew st Dept 2002)). Liability, however , is limited to at Riverdale 300 AD2d 178 (1 injuries suffered as a result of said deprivation. " (Public Health Law 9 2801- d(I)). Similarly, Public Health Law 9 2801- d(2) provides that " (u)pon a finding that a patient has been deprived unless compensatory damages shall be assessed. . . said deprivation result of of a right or benefit and that said patient has been injured as a there is a finding that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient (emphasis added). " Therefore , to recover for the deprivation of a right , there must be " injuries suffered" by the patient " as a result of said deprivation. Our Lady of Consolation (Sullvan Geriatric Care Center 60 AD3d 663 , 665 (2 Dept 2009); see also Geriatric Nursing Rehabilitation Center 84 AD3d 1348 (2 Home for the Aged at Riverdale supra , at p. 179; Maltese-Kojallo Shapiro Dept 2011); Gurwin Joseph Zeides Hebrew Fairview Nursing Center, Inc. 2010 WL 337306 (Supreme Court Queens County 2010)). A nursing home patient has " the right to receive adequate and appropriate medical care. (Public Health Law 9 2803-c (3)(e); Zeides Hebrew Homefor the Aged at Riverdale supra , at p. 179). 10 NYCRR 415. 12(d) requires a facility to ensure that a resident who enters the facility without pressure sores does not develop pressure sores unless the individual' s clinical condition [* 6] demonstrates that they were unavoidable despite every reasonable effort to prevent them and that a resident who has pressure sores receives " necessary treatment and services to promote healing, prevent infection and prevent new sores from developing. " Finally, 10 NYCRR 415.22 requires facilities like Rockvile to maintain clinical records for each resident which are " complete accurately documented , readily accessible and systematically organized. The Public Health Law provides, however , that it shall be an affirmative defense " that the facility exercised all care reasonably necessar to prevent and limit the deprivation and injury for which liabilty is asserted. " 179). Injury is defined as including (See Zeides Hebrew Home for Aged at Riverdale supra , at p. but not limited to physical har and/or emotional harm to a patient , death of a patient and financial loss to a patient. Pursuant to Public Health Law 9 2801-d(6), the court has discretion to award a prevailing par attorney fees. And , pursuant to Public Health Law 9 2801- d(2), punitive damages lie when the deprivation of a right or benefit is found to have been wilful or in reckless disregard of the lawfl rights of the patient." The plaintiff has failed to establish her entitlement to summar judgment , and so the burden does not shift to the defendant to establish the existence of a material issue of fact. Contrary to the plaintiff s characterization of Public Health Law 9 280 I- , the burden does not shift to Rockvile once she has made a prima facie showing of a deprivation of an enumerated right or benefit: Evidence that the plaintiff suffered an injur as a result thereof is also required. [* 7] (Public Health 9 2801- d(I), (2); Shapiro Dept 2011); Gold Gurwin Joseph Geriatric Nursing Our Lady of Consolation Geriatric Care Center Sullvan 90 AD3d 833 Park Ave. Extended Care Center Corp, Rehabilitation Center supra; supra). Therefore , the plaintiffs demonstration that Rockville violated 10 NYCRR 415. 22 by " failing to maintain complete accurately documented" medical records for Bums , standing alone , does not entitle her to summar judgment. (See supra; Shapiro Gurwin Joseph Geriatric Nursing Rehabiltation Center ShoreJront Jewish Geriatric Center, Inc. 33 Misc 3d 686 (Supreme Court Kings Butler County 2011)). As for Rockvile s alleged violation of 10 NYCRR 415. 12(c) which requires a facility to undertake efforts to avoid bed sores , the plaintiff relies solely on Bums ' faulty medical records to establish Rockvile s violation of 10 NYCRR 415.22. The plaintiff has made no attempt to establish that Rockvile actually violated that regulation. Again , standing alone , the errors in Bums ' medical records do not establish a violation of 10 NYCRR 415.22. While records reflecting that a patient was repositioned when he was not at the facility are troubling, that does not establish as a matter of law that Rockvile violated 10 NYCRR 415.22. That is paricularly so since the char errors occurred after Bums ' discharge and , accordingly, did not affect his subsequent care. (Compare In re Rice 289 AD2d 898 899 (3rd Dept. 2001)). Furthermore , it canot be determined at this juncture as a matter of law that the cited errors render Rockville medical records of Bums ' care entirely " unworthy of belief." [* 8] The plaintiffs motion for summar judgment declaring Rockvile liable for having violated the Public Health Law and dismissing its 16 affrmative defense is DENIED. The foregoing constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola , New York April 17, 2012 ffY S. BROWN . C. Attorney for Plaintiff Benjamin E. Setareh , PC 29 Marble Avenue Pleasantvile , NY 10570 Attorney for Defendant Rockvile Furey, Furey, Leverage , Manzione Wiliams & Darlington , PC 600 Front Street Hempstead , NY 11550 Attorney for Defendant South Nassau Barlett , McDonough, Bastone & Monaghan , LLP 300 Old Country Road , Ste. 301 Mineola , NY 11501 ENTERED APR 23 2012 AUCOUNTY COUNTY eLl." OffICE

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