Cornish v Koshy
Annotate this Case
Download PDF
Cornish v Koshy 2011 NY Slip Op 32600(U) October 4, 2011 Supreme Court, New York County Docket Number: 105679/09 Judge: Joan B. Lobis 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] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY Justice * INDEX NO. M O T I O N DATE p, /u4 AJ 6 PART PRESENT: - v - k o w , & a. 02 M O T I O N SECl. NO. ,z7 MOTION C A L . NO. - -~ The followlng papers, nurnbercd 1 t o wore read on ttiis motion to/for PAPERS NUMBERED - Affidavits Notico of M o t i o n / Order to Show Cause - Exhibits Answering Affidnvits -- Rcplylng Affidavits Cross-Motion: I -11 Yes ' - l o L.. Upon tho foregoing papors, it is ordored that this notion Dated: - ... 1-7 / D .+ 2 <' 26-2It- [* 2] Plaintiffs -againstNINAN KOSHY, M.D. and THE ST.LUKE'SROOSEVELT HOSPITAL CENTER, Index No. 105679/09 D h\E "Hospital") move, by order to show cause, for an order pursuant to C.P.L.R. Rules 3212(b) andor 321 l(a)(7), granting them summaryjudgment andor dismissing the case for failure to state a cause of action. Plaintiff Dimitri Cornish m a Demir Williams opposes the motion. This action sounding in medical malpractice and negligence arises out of plaintiff's admission to the Hospital from August 9,2007 through September 7,2007. He was hospitalized for a gunshot wound to his abdomen that severely damaged his internal organs and caused permanent paralysis from the waist down. On August 30,2007, plaintiff was found with a Stage I1 pressure ulcer on his coccyx. Plaintiff alleges that defendants departed f o the standard of care in failing rm to perform timely skin integrity examinations, failing to turn him in bed, and failing to provide a proper mattress, and that such departures caused the pressure ulcer and subsequent scarring and deformity. The ulccr has since healed. Defendants now move for dismissal of the case, maintaining that there was no deviation from the standard ofcare and that their actions did not proximately cause plaintiffs injury, [* 3] On a motion for summary judgment, a defendant in a medical malpractice action bears the initial burden ofdemonstrating that there was either no departure f o the standard of c ~ eor that any such rm , departure did not proximately cause the plaintiffs alleged injury or damage. MOSP., 87 A.D.3d 238,201 1 N.Y. Slip Op.5641 (1st Dep t B a 201 1). To satisfy that burden, the defendant must present expert medical opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. Rogues Y. Nobel, 73 A.D.3d 204, 206 (1st Dep t 2010). Failure to meet that burden will result in denial of the motion, regardless of the sufficiency of plaintiffs papers in opposition. a n a n v. $a& , 6 5 A.D.3d 101,108 (1st Dep t 2009). In support of defendants motion for summary judgment, they present an affidavit f o Susan Hirsch, M.D., states that she is a physician board certified in internal medicine and rm who licensed to practice medicine in the State ofNew York. She states that she reviewed the Hospital s records and plaintiffs subsequent medical records, as well as the pleadings, protocols, and deposition transcripts in this matter. At the timc plaintiff was admitted, the Hospital had nursing protocols for treating pressure ulcers which Dr. Hirsch opines were appropriate for the assessment, prevention, and treatment of pressure ulcers, and which she states were followed by the Hospital s employees and physicians. Defendants expert maintains that the Hospital staff took the standard assessment steps for wound care during plaintiffs entire admission. She avers that once the open wound on plaintiffs coccyx was noted on August 30, 2007, pressure prevention protocol was initiated and maintained, wound care was consulted, Xenaderm was applied, and plaintiff w s put a on an air mattress. Further, she opines that plaintiffs nutrition status was appropriately evaluated -2- [* 4] and the importance of proper nutrition was emphasized to plaintiff. Dr. Hirsch points out that the wound is described as a Stage I1 ulcer in the medical records and that the ulcer remained at Stage I1 until plaintiffs discharge on September 7,2007. She also points out that at one point in plaintiffs chart, it was noted that he refused to be log rolled, which is a positioning technique for alleviating pressure. Howcvcr, once the importance of log rolling and repositioning was explained to him, plaintiff agreed. Dr. Hirsch explains that pressure ulcers are generally caused by unrelieved pressure to a specific bodily surface. She states that some factors that affect the development and healing of pressure ulcers are nutrition, mobility, incontinence, and positioning. Dr. Hirsch opines that even with appropriate wound and nutritional care, patients can still develop pressure ulcers or have difficulty healing pressure ulcers. Further, ulcers can worsen due to co-morbidities, such as acute illness or traumatic injury. Thus,she opines, the development, non-healing, or progression of ulcers does not, in and of itself, necessarily indicate a deviation of medical care. Dr. Hirsch sets forth that plaintiff had a very complicated gunshot wound with extensive shrapnel, an abscess, paralysis, and traumatic injury to the kidney and colon. She also states that he w s uncooperative with wound care. a She opines that it was not malpractice, but the aforementioned risk factors and plaintiffs significant injuries, that led to the development of the pressure ulcer. Dr. Hirsch opines that despite the acute nature ofplaintiff s injuries, the Hospital w s able to achieve a level of healing of his pressure ulcers a well within the standard of medical care. -3- [* 5] In opposition to defendants motion, plaintiff first argues that defendants summary judgment motion w s made over sixty (60) days after the note of issue was filed, in violation of the a P r Rules for Part 6 and the parties preliminary conference order. The note of issue was filed on at April 12,2011. The af ¬idavit of service reflects that the motion WFS served on Tuesday, June 14, 201 1. Plaintiff concedes that since that the sixtieth day f o the filing of note of issue w s on a rm a weekend, the deadline to serve the summary judgment motion was Monday, June 13,201 1. The court will consider the motion on its merits without requiring dcfendants to show good cause for the lateness, given that defendants attorney s firm filed their order to show cause and paid the motion fee on Friday, June 10,201 1, and that, due to a scheduled vacation day, the court w s unavailable a to sign orders on Monday, June 13. In reaching the merits of the motion, however, the court finds that defendants failed to eliminate all material issues of fact that there were no departures or that the departures did not proximately cause plaintiffs pressure ulcer. Dr. Hirsch concedes that positioning is a factor in causing pressure ulcers. She opines that once the sore was discovered, defendants initiated and maintained pressure prevention protocol. However, except in conclusory terms, Dr. Hirsch fails to address whether defendants were maintaining proper pressure prevention protocol prior to the discovery of the pressure ulcer on August 30, 2007. While defendants portray plaintiff as noncompliant with the log rolling protocols in place, there is only one reference in the Hospital s chart that indicates that plaintiff was refusing log rolling, and in that instance, it appears that he changed his mind and agreed to be log rolled after he was explained the importance of the practice. Further, while defendants portray plaintiff as uncooperative with wound care, there is nothing 4- [* 6]
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
