Slobin v Boasiako

[*1] Slobin v Boasiako 2008 NY Slip Op 50628(U) [19 Misc 3d 1110(A)] Decided on March 18, 2008 Supreme Court, Nassau County Davis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 18, 2008
Supreme Court, Nassau County

Judith Slobin, as the Administratix of the Estate of Milton Bass and Judith Slobin, Individually, Plaintiff,

against

Agartha Boasiako, Star Multi Care Services, Inc., Robert Kazenoff, M.D. and Carillon Nursing and Rehabilitation Center, LLC, Defendants.



18143/02

Kenneth A. Davis, J.

Separate motions by defendants, Robert Kazenoff, M.D. and Carillon Nursing and Rehabilitation Center, LLC, each, for an Order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint of the plaintiff, Judith Slobin as the Administratrix of the Estate of Milton Bass and Judith Slobin, individually (hereinafter referred to as "plaintiff"), are determined as provided herein.

This is an action to recover damages for medical malpractice. Plaintiff alleges that defendants Robert Kazenoff, M.D. and Carillon Nursing and Rehabilitation Center, LLC. ("CNR") negligently cared for and treated the decedent, Milton Bass (to be referred herein as the "decedent"), from August 2, 2000, through and including November 6, 2000. Specifically, plaintiff alleges that defendants, Dr. Kazenoff and CNR were negligent in, inter alia, causing the decedent, Milton Bass, to become and remain in a dehydrated and malnourished state for a protracted period of time. Defendants seek dismissal of the complaint upon the grounds that they did not deviate from any standards of accepted medical practice in rendering medical care to the plaintiff's decedent, and did not, in any way, proximately cause any of the alleged injuries sustained by the plaintiff's decedent.

The pertinent facts are as follows: [*2]

On August 2, 2000, Milton Bass, was admitted to CNR from Huntington Hospital "status post open reduction and internal fixation of a left hip fracture." The 84-year old patient was not well enough to go home from Huntington Hospital and he was admitted to the nursing and rehabilitation center for rehabilitative care (Kazenoff Tr., pp. 18-19; Samuel Tr., p. 20). The decedent's daughter, plaintiff Judith Slobin, testified that she selected CNR as her father's nursing home (Slobin Tr., p. 58). Dr. Kazenoff first saw Milton Bass on August 2, 2000 (Kazenoff Tr., p. 12) at which time he noted the decedent's general appearance to be frail, having some fluency, but generally not talkative and seemed confused. His prognosis at that time was "frail individual - prognosis is guarded." Upon admission Milton Bass weighed 119.2 lbs and used a walker. He had a history of a decreased heart rate, tachycardia, hydroephrosis bilaterally, urinary tract infection, benign prosthetic hypertrophy, gall stones, Parkinson's Disease, depression, dementia, neurogenic bladder, decrease in iron stores, elevated right hemidiaphragm, right bundle branch block with first degree AV block. The decedent had contractures of both hips, knees and shoulders. Pursuant to the Huntington Hospital Discharge Summary Instructions, the decedent also required aspiration precautions due to abnormal swallowing (dysphagia). Due to his multiple medical problems, Milton Bass was assessed and deemed to have altered nutritional status and be at risk for dehydration and malnutrition. As a result, multiple interventions were instituted to address his nutritional and hydration problems including a therapeutic diet (no concentrated carbohydrates), providing adequate fluids daily to aid hydration, ordering elevation of the head of his bed to 30 degrees, and counseling the decedent's family on need to maintain decedent on a finely chopped diet based on his difficulty swallowing. In addition, his previous medications were continued and diagnostic testing for blood work, a chest x-ray and a urinalysis were ordered. The chest x-ray performed on August 3, 2000, revealed a right upper lung infiltrate (pneumonia).

Dr. Kazenoff next saw the decedent on August 26, 2000 and noted that he appeared "confused and demented." He also noted that the nurses were feeding the decedent because he was too weak to feed himself. The CNR staff informed Dr. Kazenoff that plaintiff was having difficulty swallowing. Thus, Dr. Kazenoff requested an evaluation from the speech and swallowing consultant at CNR. Supportive care was continued.

Three days later, on August 29, 2000, the doctor was notified by staff at CNR that the decedent's daughter, the plaintiff herein, requested a regular diet for her father. The nursing staff advised Judith Slobin that he required a no concentrated carbohydrate and a finely chopped diet due to elevated glucose levels and [*3]difficulty chewing and swallowing (aspiration precautions). Dr. Kazenoff ordered that a fasting blood glucose (FBS) and a swallow study be performed.

Later that day on August 29, the decedent was found on the floor in his room, with a hematoma over his right forehead. CNR staff contacted an attending physician (unknown to this Court) who issued a telephone order to transfer the decedent to Huntington Hospital to rule out a possible concussion. At Huntington Hospital, the decedent was diagnosed with a urinary tract infection and placed on an antibiotic. A CT scan of the head was negative for an acute process, except soft tissue swelling over the right forehead. A recommendation was made for warm compresses to his forehead daily and the plaintiff was to have a follow up appointment with his primary care physician. The family was notified and Dr. Kazenoff was advised of the resident's fall, emergency room visit and urinary tract infection. Orders were issued for interventions secondary to the decedent's fall including a bed alarm and wheelchair alarm, and side rails, utilized as enablers were continued.

On August 31, 2000, Dr. Kazenoff was notified by staff that the decedent's daughter continued to demand a regular consistency diet for her father. While Dr. Kazenoff was able to lift the restriction on carbohydrates based on a blood glucose result, he ordered that the diet consistency remain finely chopped until the swallowing study was completed. The swallowing study was conducted later that day and based upon the decedent's compromised cognitive ability, his high risk for aspiration, his baseline feeding and swallowing skills, his tendency to take excessively large amounts of food in at once at a rapid pace, it was deemed that it would be safer for the decedent to remain on a diet that included food of a finely chopped consistency with all liquid textures and continued supervision at meals. By September 1, 2000, decedent's weight dropped to 114.4 lbs.

On September 5, 2000, the decedent was observed to be very restless. As a result, the decedent was placed in bed for safety and Dr. Kazenoff was notified. He ordered a non-contrast CT scan of the head and blood tests were done but revealed only anemia. No restraints or hospitalization orders were issued.

On September 7, 2000, the decedent's daughter, Judith Slobin, requested again that her father's diet be changed to regular food as opposed to chopped food. The staff again advised her that the doctor and speech language pathologist recommended finely chopped food for the decedent based on his medical needs pursuant to the swallow study. Judith Slobin was referred by CNR staff to discuss [*4]the matter with Brian Starr, the speech language pathologist. Mr. Starr discussed his findings with the plaintiff over the telephone and continued his recommendations for a finely chopped diet to maximize the decedent's swallow safety. Plaintiff insisted that this recommendation was not suitable for her father. Although nutritional supplements had been increased over the course of his stay at CNR, on September 21, 2000, the decedent's weight dropped to 112.8 pounds. As a result, nutritional supplements were again increased.

On September 22, 2000, Dr. Kazenoff evaluated the decedent and noted that he appeared frail was not eating well. Dr. Kazenoff explained to the plaintiff that the decedent was at a high risk for choking, that he has had pneumonia already, he is very frail, too weak to eat, and that the swallowing expert consultant felt that he is at a high risk for choking and that if he eats regular food, as she insisted, he could die. The decedent's daughter did not agree with the evaluation regarding chopped food.

Two days later, on September 24, Milton Bass was again found on the floor and his wheelchair was tipped over on top of him. No injury was noted. The medical records note that while the wheel chair alarm did not sound, it was in place and was in working condition. The clip was not attached to the resident. The decedent was given "anti-tippers" for his wheelchair, and on September 25, a lap buddy was placed on the decedent's wheelchair to reduce the incident of falls. No orders were issued by a physician for restraints or for hospitalization.

Approximately one month later, on October 21, Dr. Kazenoff again examined the decedent and reviewed his overall plan of care noting that the decedent was languishing and eating poorly. The CNR nursing staff advised Dr. Kazenoff that despite spoon feeding and all the interventions to date, he had sustained a 14.2 pound weight loss since admission. Dr. Kazenoff contacted Judith Slobin who was also the surrogate for health care decisions, and discussed the decedent's overall decline in condition. He again informed her that her father could die if he tried to consume solid food in light of the results of the swallow studies on August 31, 2000.

At deposition, Dr. Kazenoff testified that he also discussed the implantation of a feeding tube and intravenous fluids with Judith Slobin but she did not give the consent necessary to authorize him to issue an order for either a PEG tube or intravenous fluids. Consent could not be obtained directly from the decedent due to his cognitive impairment and continued medical decline. Judith Slobin insisted that her father be given regular solid food and as a result, Dr. Kazenoff ordered a second swallow [*5]study, to be repeated in the presence of either the decedent's daughter or a family member. Plaintiff Slobin agreed to be present. This was the last time Dr. Kazenoff provided treatment to the decedent at CNR.

On October 24, 2000, CNR staff noted the decedent's poor appetite and evidence of progressive feeding problems including food observed to running from his mouth. On this date, a second swallow study was conducted by the speech pathologist. The decedent's daughter indicated to Mr. Starr in advance of the swallow study that her presence was not necessary and, as such, refused to be present for the evaluation despite initially agreeing to be present. During the swallow study on October 24, the decedent did not attempt to self-feed and required assistance. He was noted to have worsened oral dysphagia. Mr. Starr found that a dietary upgrade to regular food was contraindicated due to asphyxia risk and that deficits with oral consumption would persist with regular foods as well. At that time, the decedent's daughter was advised that if she continued to oppose the dietary recommendations, against the medical advice of a physician, she must sign a waiver given the potential risks of choking and asphyxiation due to the regular diet she had been insisting that he receive.

By October 26, 2000, the decedent weighed 100.2 lbs. On October 29, the CNR dietician noted that the decedent had been refusing to eat and changed the nutritional supplements to a more concentrated formula to promote weight gain. On November 1, 2000, Dr. Kazenoff was notified by CNR staff of the decedent's continued weight loss. On November 2, the decedent's daughter was again made aware that her father was not consuming enough food and fluids and was losing weight. On November 5, the decedent was observed to have a poor appetite, to be very weak and to refuse food and fluid intake. On November 6, he continued to be weak and refuse food intake. Dr. Kazenoff was notified and ordered intravenous fluids and laboratory analysis to be conducted. Shortly thereafter, at his daughter's request (Kazenoff Tr., p. 79), on November 6, 2000, the decedent was transferred to Huntington Hospital for further evaluation and the decedent's family was accordingly notified. On November 9, 2000, Milton Bass passed away.

Plaintiff's complaint asserts five causes of action: (1) negligence as against former defendants Agartha Boasiako and Star Multi-Care Services, Inc. with respect to a fall that occurred on or about July 25, 2000 while the decedent was in the care of Agartha Boasiako, an employee of Star Multi Care Services, Inc. at that time; (2) medical malpractice against CNR; (3) medical malpractice against Dr. Kazenoff; (4) wrongful death; and (5) a derivative claim for loss of services, society, support and [*6]maintenance of the decedent. Agartha Boasiako and Star Multi-Car Services are no longer defendants in this action. In her bill of particulars and supplemental bill of particulars, plaintiff alleges that Dr. Kazenoff negligently cared for and treated the decedent and failed to properly assess, treat, diagnose and care for the decedent in that he caused the decedent to become and remain in a dehydrated and malnourished state for a protracted period of time; to sustain cardiopulmonary arrest due to dehydration and malnutrition of the decedent; failed to transfer the decedent to another facility and failed to order consults for the decedent. As against defendant CNR, in her bill of particulars and supplemental bill of particulars, plaintiff alleges res ipsa loquitor and advances claims sounding in vicarious liability, respondeat superior, violations of PHL §§2801-d and 2803-d and negligent hiring.

As the Court of Appeals stated in Scott v. Uljanov, 74 NY2d 673, 673-675, "in that medical malpractice is simply a form of negligence, no rigid analytical line separates the two." "The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of facts" (Russo v. Shah, 278 AD2d 474-475 [2nd Dept. 2000]; Glasgow v. Chou, 33 AD3d 959 [2nd Dept. 2006]). "[W]hen 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 rather than simple negligence" (Weiner v. Lenox Hill Hosp., 88 NY2d 784, 788 [1996] quoting Bleiler v. Bodnar, 65 NY2d 65, 72 [1985]; Glasgow v. Chou, supra).

Under the circumstances extant, plaintiff's claim is one of medical malpractice, not ordinary negligence. Indeed, decedent's injuries and alleged wrongful death occurred when defendants, CNR and Dr. Kazenoff, were charged with his daily care, including his physical and nutritional needs. Because the defendants conduct undoubtedly " constitutes an integral part of the process of rendering medical treatment,' " plaintiff's claim must be characterized as malpractice (Wahler v. Lockport Physical Therapy, 275 AD2d 906 [4th Dept. 2000] quoting Scott v. Uljanov, supra). Thus, plaintiff's negligence claim as against both defendants is dismissed.

"The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or [*7]damage" (Ramsay v. Good Samaritan Hosp., 24 AD3d 645, 646 [2nd Dept. 2005]; Thompson v. Orner, 36 AD3d 791 [2nd Dept. 2007]; DiMitri v. Monsouri, 302 AD2d 420 [2nd Dept. 2003]). "In a medical malpractice action, the party moving for summary judgment 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 defendant physician [and/or hospital] were negligent" (Taylor v. Nyack Hospital, 18 AD3d 537 [2nd Dept. 2005] citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Thus, a moving defendant doctor or hospital has "the initial burden of establishing the absence of any departure from good and accepted medical malpractice or that the plaintiff was injured thereby" (Chance v. Felder, 33 AD3d 645 [2nd Dept. 2006] quoting Williams v. Sahay, 12 AD3d 366, 368 [2nd Dept. 2004]; Johnson v. Queens-Long Is. Med. Group, P.C., 23 AD3d 525, 526 [2nd Dept. 2005]).

In support of his motion, Dr. Kazenoff submits, inter alia, the affirmation of Barbara Malach, M.D., who is licensed to practice medicine in New York and is board certified in Geriatrics. Having reviewed Milton Bass's medical records, the Bill of Particulars and the examination before trial transcripts, Dr. Malach opines, with a reasonable degree of medical certainty, that all of the treatment provided to Milton Bass by Dr. Kazenoff was in accordance with good and accepted medical practice and that the treatment provided by him did not proximately cause his injuries and death. She opines that Dr. Kazenoff "properly performed monthly physical examinations of the plaintiff-decedent, made all necessary orders for his care and treatment at CNR...properly recorded the patient's complaints, medication relevant past medical and family history and the results of his examination and testing" (Motion, Ex. B.¶ 10). She states that the decedent's medical records document that his issues were discussed at length with the plaintiff- daughter and deferred aggressive evaluation including an MRI and neurosurgery consultation (Id., ¶9). Thus, it is Dr. Malach's expert opinion, within a reasonable degree of medical certainty, that Dr. Kazenoff recognized the significance of all the patient's signs and symptoms and conditions and performed the appropriate examinations and testing. This Court, however, is not persuaded by Dr. Malach's sparse and conclusory "expert" affirmation.

While Dr. Malach states that it is her opinion that plaintiff's allegations against Dr. Kazenoff are without merit, this Court finds Dr. Malach's affirmation to be wholly conclusory. Dr. Malach's affirmation fails to address, in its four substantive paragraphs, even the most basic allegations contained in plaintiff's bill of particulars and it fails to "address[] the facts as contained in the medical record" (Ritt v. Lenox Hill [*8]Hosp., 182 AD2d 560, 561 [1st Dept. 1992]). Dr. Malach does not explain the decedent's progressive weight loss; fails to explain why Dr. Kazenoff could not introduce an Intravenous Line prior to November 6, 2000 in an earlier effort to provide nutrition and hydration to the plaintiff decedent by means other than orally; or why Dr. Kazenoff did not and could not make any orders for hospitalization or feeding tube placement for fluids and nutrition prior to November 6, 2000. Dr. Malach's expert affirmation merely states that Dr. Kazenoff properly performed monthly physical examinations of the decedent and made all the necessary orders for care and treatment at CNR and that he recognized the significance of all the patient's signs and symptoms and conditions and performed the appropriate examinations and testing, with no elaboration. Dr. Malach fails to explain what the defendant did and why.

Moreover, with regard to proximate cause, Dr. Malach opines that "no act or omission on the part of DR. KAZENOFF was the proximate cause of any injuries herein" (Id., ¶12). Yet, Dr. Malach does not explain how earlier and more aggressive treatment of plaintiff's symptoms including weight loss, overall deterioration of condition, dry loose skin, lethargy and confusion, would have affected the decedent and why such treatment was not a viable alternative.

Bare conclusory denials of negligence without any factual relationship to the alleged injuries, and the submission of the affidavit of a medical expert which fails to address the essential factual allegations set forth in the complaint, are insufficient to establish that defendant is entitled to summary judgment (Cicolello v. Limb, 216 AD2d 434 [2nd Dept. 1995]; Muscatello v. City of New York, 215 AD2d 463, 464 [2nd Dept. 1995]). Since defendant Dr. Kazenoff has failed to shoulder his burden on this motion, summary judgment is denied regardless of the sufficiency of plaintiff's opposition.

As against defendant CNR, plaintiff advances claims sounding in medical malpractice, negligence, res ipsa loquitor, vicarious liability, respondeat superior, violations of PHL §§2801-d and 2803-d, negligent hiring, wrongful death and a derivative claim for loss of services.

Defendant CNR seeks to avoid liability for plaintiff's injuries and resultant death on the grounds that there is no evidence in the record that supports the allegations that CNR, inter alia, improperly assessed the decedent's condition, failed to properly examine, assess, treat and diagnose the decedent for malnutrition and dehydration and failed to restrain, control and [*9]supervise the decedent. The thrust of defendant, CNR's contentions is that it did not deviate from the appropriate standard of care that could have contributed to Milton Bass's alleged malnutrition, dehydration, weight loss and death.

In support of its motion for summary judgment, defendant CNR has submitted the affirmation of Barbara C. Tommasulo, M.D., a physician licensed to practice in New York State who is Board Certified in Internal Medicine and Geriatric Medicine. Based upon her review of Milton Bass's medical records as well as the Bill of Particulars and examination before trial transcripts, she opines, with a reasonable degree of medical certainty, that the care and treatment rendered to plaintiff, Milton Bass, by CNR was at all times within good and accepted standards of medical care and that the injuries allegedly suffered by her were not in any way proximately caused by any of the care and treatment rendered to the decedent by any of the CNR personnel or staff. Dr. Tommasulo notes that "[b]ased on their own detailed evaluations and assessments, [CNR] properly created and implemented a Comprehensive Care Plan... that appropriately addressed the Decedent's multitude of medical, cognitive, physical and functional problems..." (CNR Motion, Ex. 1, ¶14). Dr. Tommasulo states that CNR "[s]taff created CCPs in conjunction with the physician's overall care plan for the Decedent based on his underlying medical conditions and needs" (Id). With respect to the plaintiff's allegations that CNR caused the decedent to become and remain in a dehydrated and malnourished state for a protracted period of time, Dr. Tommasulo states that is "patently untrue" as "the Decedent presented [to CNR] substantially below his ideal body weight" (Id., ¶17).In fact, Dr. Tommasulo states that "multiple and appropriate interventions were made to address the decedent's nutritional and hydration problems [including] a therapeutic diet...spoon feeding...high calorie nutritional shakes...and supplements" (Id., ¶19). As per Dr. Tommasulo, "[m]ultiple entries in the Decedent's medical record attest to close monitoring of the Decedent's oral intake, weight, and lab values...[t]hese assessments were appropriate and conducted in conjunction with the supervision and overall approval of the care plan by attending physicians at [CNR]" (Id., ¶19).

Dr. Tommasulo also states that only a physician at CNR may order the insertion of a feeding tube or PEG tube for the decedent, as it is an invasive procedure and Ms. Slobin must first consent to invasive procedures on behalf of her father as his surrogate for health care decisions (Id., ¶46). As for defendant's failure to restrain, Dr. Tommasulo concludes that: Upon admission, the Decedent was properly assessed to be at risk for falls by [CNR] staff due to his unsteady gait and [*10]admission status post ORIF of his left hip. Appropriate interventions to reduce fall risk were implemented and included: restorative physical therapy; restorative occupational therapy; call bell in easy reach; keep room clutter free; two side rails up as enablers; out of bed to wheelchair daily; toilet every two to four hours and as needed; and, assist with transfers and ambulations. When incidents did occur, appropriate evaluations were done, the interdisciplinary team reviewed the case, and appropriate interventions were put into place. Restraints were not deemed necessary by the interdisciplinary care team, and as such, were not ordered by Dr. Kazenoff. Restraints were not necessary to protect the health and safety of the Decedent or to assist the Decedent to attain or maintain optimal levels of physical and emotional functioning. Without a physician's order for restraints, [CNR] staff may not use restraints (Id., ¶49).

Succinctly put, defendant CNR's expert concludes that the fact that the decedent's conditions did not resolve is not indicative that the treatment administered was improper; rather, Milton Bass's overall condition and demise were the inevitable result of his multiple, severe, debilitating co-morbidities and organ system failure (Id., ¶51).

As for plaintiff's claim pursuant to Public Health Law §§ 2801-d, 2803-c and various sections of Title 10 of the New York Codes, Rules and Regulations, Dr. Tommasulo simply states "[d]ecedent was not denied any of his statutory rights and benefits provided by those statutes, as the care rendered to him during his admission to [CNR] was always appropriate and adequate within accepted standards of care and in accordance with the requirements of those statutes. Based on my review of all the documentary evidence in this case and my familiarity with the sections of those statutes cited by the Plaintiff, there were no violations of those statutes by the staff at [CNR]" (Id., ¶52).

In opposition, plaintiff submits her own affidavit as well as the expert affidavit of Terry Walsh-Gottlieb, Ed.D, RN-BC, a registered nurse licensed to practice in the State of New York who opines, inter alia, that "[a]ppropriate interventions such as transferring the plaintiff-decedent to a hospital for IV placement for fluids and feeding tube placement for nutrition could have been requested and would have prevented plaintiff-decedent's death. Through these failures, [CNR] failed in its obligation to plaintiff-decedent to provide the proper care and treatment and deprived him of a substantial chance for survival and were a derivation from good and accepted standards in nursing care [*11]practice and violation in 10 NYCRR 415.3. These deviations were a proximate cause of the plaintiff-decedent's death" (Aff in Opp, Ex. A, ¶8 [Emphasis Added]).

"As a rule, a hospital is normally protected from tort liability if its staff follows the orders of the patient's private physician. An exception exists where the hospital staff knows that the doctor's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders" (Cook v. Reisner, 295 AD2d 466, 467 [2nd Dept. 2002] quoting Warney v. Haddad, 237 AD2d 123 [1st Dept. 1997]).

Under the doctrine of respondeat superior, a hospital may be vicariously liable for the medical malpractice of physicians who act in an employment or agency capacity (Hill v. St. Clare's Hosp., 67 NY2d 72, 79 [1986]; Fiorentino v. Wenger, 19 NY2d 407, 414 [1967]). The premise for imputing liability is the element of control (Kavanaugh v. Nussbaum, 71 NY2d 535 [1988]). In this case, CNR has made a prima facie showing that Robert Kazenoff, M.D., an independent contractor with the hospital was responsible for his own negligence, if any. In his deposition testimony, Dr. Kazenoff confirmed that he was an independent contractor for the defendant CNR and that he did not have any contracts with CNR for his services (Kazenoff Tr., p. 12). In opposition, plaintiff argues that the fact that Dr. Kazenoff was an independent contractor does not save the defendant CNR from liability for his actions. Plaintiff submits that Dr. Kazenoff was assigned to treat patients at CNR and in fact he testified that in August 2000, he was treating approximately 50 patients at CNR (Id., pp. 13-14). Plaintiff argues that because the decedent was a patient at CNR, defendant, CNR was liable for Dr. Kazenoff's conduct. Plaintiff relies on a Third Department decision, namely Mduba v. Benedictine Hosp., 52 AD2d 450 [3rd Dept. 1976], for the proposition that a hospital holding itself out to the public as an institution furnishing doctors, staff and facilities for emergency treatment, was under a duty to perform those services and is liable for the negligent performance of those services by the doctors and staff it hired and furnished to the patient. Reliance on Mduba however is misplaced.

In Mduba v. Benedictine Hosp., the court held that a hospital could be vicariously liable for the negligence of an emergency room doctor, even if he was an independent contractor, since "the decedent entered the hospital for hospital treatment," the hospital held itself out as a provider of hospital services, and patients were entitled to assume that the doctors who treated them were doing so on behalf of the hospital (Mduba v. Benedictine Hosp., [*12]supra at 453). Although a hospital or other medical facility is liable for the negligence or malpractice of its employees, that rule does not apply when the treatment is provided by an independent physician (Fiorentino v. Wender, 19 NY2d 407 [1967]). Furthermore, an affiliation of a doctor with a medical facility, not amounting to employment is not sufficient to impute the doctor's negligent conduct to the hospital or facility (Ruane v. Niagara Falls Mem. Med. Ctr., 60 NY2d 908 [1983]). Mduba specifically applied to a scenario involving emergency care in settings where the physicians are under the supervision and control of the hospital and the Court there found that the hospital may still be liable for the doctor's malpractice if the doctors acted as agents of the hospital or if the hospital exercised control over them. This case is entirely distinguishable.

In this case, the decedent was a resident of the defendant CNR, a skilled nursing facility for assistance with activities of daily living and not acute medical care. A hospital has its own procedures with respect to emergency room care and surgery that a nursing home does not. A nursing home is meant to provide nursing care, not medical care. Furthermore, there is no evidence in this case that CNR exercised any control over the manner in which the independent contractor physicians rendered care. To the contrary, there is ample evidence, including expert opinions, that CNR staff deferred to the order and opinions of the independent contractor physician, including Dr. Kazenoff. Accordingly, plaintiff's assertion that CNR is vicariously liable for the acts and omissions of Dr. Kazenoff are dismissed.

Plaintiff's claims that the actions of a nurse manager, namely, Saramma Samuel, R.N., render the defendant, CNR, vicariously liable are not however summarily dismissed. Relying upon the expert affirmation of Dr. Tommasulo, CNR argues that Nurse Samuel's actions, within the scope of her employment, did not deviate from the accepted standard of care and, thus, cannot be deemed to have been the proximate cause of the decedent's claimed injuries. It is undisputed that Nurse Samuel was an employee of the defendant, CNR when the plaintiff was admitted and that at all relevant times, she was acting within the scope of her employment with CNR. Defendant CNR's expert states that the care plans developed by the staff at CNR were at all times appropriate for the decedent's presenting condition. Moreover, as Dr. Kazenoff was undisputedly the primary care physician in charge of the care and treatment of the decedent, CNR staff including Nurse Samuel, were required to follow the orders of Dr. Kazenoff.

In opposition, plaintiff in turn relies upon the expert affidavit of Terry Walsh-Gottlieb, Ed.D., RN-BC, a registered nurse [*13]who states that CNR "failed to make any effort to request proper nutrition and hydration through the use of devices including but not limited to Intravenous Lines and/or feeding tubes or have plaintiff-decedent transferred to a hospital where he could receive these devices; failed to report to the Director of Nursing or the Medical Director seeking more aggressive treatment after Dr. Kazenoff's failure to transfer the plaintiff-decedent to a hospital or insert an IV or a feeding tube; and failed to request a second opinion or examinations of the plaintiff-decedent by another physician other than Dr. Kazenoff to determine whether the plaintiff-decedent should be transferred to a hospital or the insertion of an IV or a feeding tube should be ordered" (Aff in Opp., Ex. A, ¶8).

Upon the parties' materially conflicting factual contentions and the opposing expert opinions submitted, triable issues of fact exist with respect to whether the treatment and care rendered by the CNR staff represent a departure from accepted medical standards, which proximately contributed to the injuries sustained by the plaintiff and render the defendant CNR vicariously liable (Halkias v. Otolaryngology Facial Plastic Surgery Assocs., 282 AD2d 650 [2nd Dept. 2001]). Accordingly, defendant, CNR's motion for summary dismissal of plaintiff's claims of vicarious liability and respondeat superior are denied.

Plaintiff's cause of action for the negligent hiring of Nurse Samuel is however dismissed. "Generally, where an employee is acting within the scope of his or her employment, thereby rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, no claim may proceed against the employer for negligent hiring or retention. This is because if the employee [Nurse Samuel] was not negligent, there is no basis for imposing liability upon the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of training" (Karoon v. New York City Transit Authority, 241 AD2d 323 [1st Dept. 1997]; Talavera v. Ehud Arbit, et. al., 18 AD3d 738 [2nd Dept. 2005]. While an exception exists to this general principle where the injured plaintiff is seeking punitive damages from the employer based on alleged gross negligence in the hiring or retention of the employee (Bevilacqua v City of Niagara Falls, 66 AD2d 988, 989 [4th Dept. 1978]; Mastrodonato v Town of Chili, 39 AD2d 824, 825 [4th Dept. 1972]), that exception is inapposite here as plaintiff does not seek punitive damages.

Finally, turning to plaintiff's medical malpractice claims as [*14]against CNR, this Court finds that having met their prima facie burden of entitlement to judgment as a matter of law by submitting the expert affirmation of Dr. Tommasulo that CNR did not deviate from accepted standards of care in their treatment of the decedent, the burden shifts to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). In opposition, the affidavit of plaintiff's expert establishes the existence of issues of fact, inter alia, as to whether the defendant CNR departed from acceptable nursing care practice by failing to properly intervene with the decedent's progressive weight loss; failing to observe his failure to thrive; failing to diagnose that he was suffering from dehydration and malnutrition; and failing to transfer or even request a transfer of the decedent to a hospital prior to November 6, 2000, despite his poor intake, obvious weight loss and confusion.

Summary judgment may not be awarded in a medical malpractice action where the parties adduce conflicting opinions of medical experts (Barbuto v. Winthrop Univ. Hosp, 305 AD2d 623 [2nd Dept. 2003]; Fotinas v. Westchester County Med. Ctr., 300 AD2d 437 [2nd Dept. 2002]). When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution (Barbuto v. Winthrop Univ. Hosp., supra; Halkias v. Otolaryngology-Facial Plastic Surgery Assocs., supra]). Accordingly, defendant CNR's motion for summary judgment dismissal of plaintiff's medical malpractice claims are denied.

It is noted at the outset that plaintiff did not plead a separate cause of action under the Public Health Law §§2801-d or 2803-d in her complaint; rather, plaintiff first alleged in her supplemental bill of particulars, dated June 21, 2007 well after the Note of Issue was served (February 2007) the nature of the violations as required by these statutes.

Public Health Law § 2801-d provides a private right of action to nursing home patients injured while in the facility. In particular, the statute provides that a nursing home may be sued for deprivation of any right effected for the well-being of a patient by any state or federal statute, code, rule or regulation. One such protected right is the right to receive adequate and appropriate medical care. Public Health Law § 2803-c(3)(e) (Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178, 179 [1st Dept. 2002] rearg. denied, 306 AD2d 959 [1st Dept. 2003]; Morisette v. Terence Cardinal Cooke Health Care Ctr., 8 Misc 3d 506, 508-09 [Sup. Ct., New York 2005]).

However, CPLR 3013 mandates that statements in a pleading be [*15]"sufficiently particular to give the court and parties notice of the transactions." Based upon a review of plaintiff's pleadings, it is clear that plaintiff has failed to properly plead a cause of action pursuant to Public Health Law § 2801-d. In fact, it was not until plaintiff's second supplemental bill of particulars dated June 21, 2007 served weeks after plaintiff filed her Note of Issue certifying that discovery is complete and that this matter is ready for trial that plaintiff first discussed and mentioned CNR's alleged negligence under the Public Health Law statute. Furthermore, no where in even the second supplemental bill of particulars, does plaintiff even specifically and particularly discuss how CNR violated the Public Health law (Morris v. Fein, 177 AD2d 915 [3rd Dept. 1991]; cf. Washington v. Afsaw, 15 Misc 3d 1107[A] [Sup. Ct. New York 2007]). Thus, even when alleged, plaintiff's allegations are not sufficiently particular to meet the requirements of CPLR 3013. Accordingly, these allegations are dismissed as a matter of law.

Plaintiff's claims under the doctrine of res ipsa loquitor are also dismissed. Res ipsa loquitur is an evidentiary rule that permits an inference of negligence solely because of the happening of an unusual or extraordinary occurrence (Dermatossian v. New York City Transit Authority, 67 NY2d 219 [1986]; Mays v. Children's Hosp. of Buffalo, 151 AD2d 1025 [4th Dept 1989]). To establish a claim under this doctrine the plaintiff must establish that: (1) the event was a kind that ordinarily does not occur in the absence of someone's negligence; (2) the event must be caused by an agency or instrumentality within the exclusive control of the defendant; and, (3) the event must not have been due to any voluntary action or contribution on the part of the plaintiff (Dermatossian v. New York City Transit Authority, supra; Cornacchia v. Mount Vernon Hosp., 93 AD2d 851 [2nd Dept 1983]; Kerber v. Sarles, 151 AD2d 1031[4th Dept. 1981]; DiGiacomo v. Cabrini Medical Center, 21 AD3d 1052 [2nd Dept. 2005], leave to appeal denied, 6 NY3d 703 [2006]).

While res ipsa loquitor is frequently used in medical malpractice case, when the occurrence is within the normal and anticipated sequelae of a procedure, then res ipsa does not apply (Storniolo v. Bauer, 176 AD2d 550 [1st Dept. 1991]). Moreover, as in this case, there remain issues of fact as to whether Milton Bass's injuries and resultant death were caused by other non-malpractice causes such as his prior medical conditions (Georges v. Swift, 194 AD2d 517 [2nd Dept. 1993]; Sapienza v. County of Erie, 270 AD2d 907 [4th Dept. 2000]). Negligence is not the only inference that can be drawn from the circumstances of this case. Moreover, to support a claim of malpractice, plaintiff's expert, Terry Walsh-Gottlieb, has failed to state in her affidavit that the injury in question does not happen absent negligence (Santangelo v. Crouse [*16]Medical Group, P.C., 209 AD2d 942 [4th Dept. 1994]; Muniz v. American Red Cross, 141 AD2d 386 [1st Dept. 1988]; Quigley v. Jabbur, 124 AD2d 398 [3rd Dept. 1986]). Accordingly, the res ipsa allegation is inapplicable to the facts at hand.

Finally, to succeed on an action to recover damages for wrongful death, the plaintiff must prove the following elements: (1) the death of a human being born alive; (2) a wrongful act, neglect or default of the defendant by which the decedent's death was caused, provided the defendant would have been liable to the deceased had death not ensued; (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent; and (4) the appointment of a personal representative of the decedent (Chong v. New York City Transit Authority, 83 AD2d 546 [2nd Dept. 1981]). While the defendant, CNR argues that it is permitted to rely on a lesser burden of persuasion under the Noseworthy doctrine, it is only after the plaintiff has adduced these elements by a preponderance of the evidence of defendant's liability, that the Noseworthy rule can be applied (Noseworthy v. New York, 298 NY 76 [1948]; see also Wingerter v. State, 58 NY2d 848 [1983]; Verdino v. Hayes, 10 AD2d 978 [2nd Dept. 1960]).

Before the Noseworthy Rule can come into play, there must be some showing of negligence, however slight. Noseworthy describes a method of, or approach to, weighing evidence, but there must be a showing of facts from which negligence may first be inferred. Here, there remain issues of fact as to CNR's negligence, if any (Dubi v. Jericho Fire Dist., 22 AD3d 631 [2nd Dept. 2005]). Accordingly, CNR's motion for summary dismissal of plaintiff's wrongful death claims is also denied.

Finally, plaintiff advances a derivative claim for loss of services, society, support and maintenance. It is noted that a claim for loss of services embraces not only services and support, but also elements as love, companionship, affection and society (Millington v. Southeastern Elevator Co., 22 NY2d 498 [1968]). The merits of this cause of action, are not directly in issue in these motions but this claim, derivative in nature, does stand or fall with plaintiff's medical malpractice cause of action. Accordingly, defendant, CNR's motion for summary judgment dismissing plaintiff's loss of consortium claim are denied.

This shall constitute the decision and order of this Court. [*17]

Dated: __________________ _______________________________

J.S.C.