Matter of Pfeffer

[*1] Matter of Pfeffer 2011 NY Slip Op 51915(U) Decided on September 22, 2011 Sur Ct, New York County Glen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2011
Sur Ct, New York County

Matter of the Petition of Sheila Karp, Harrison Karp, and Ian Karp for the Forfeiture by Sharon Louise Steinberg or for the Imposition of a Constructive Trust Over Assets Received from the Estate of Allan David Pfeffer, Deceased.



2005-3737



Counsel for petitioners: Ira Salzman, Esq., of Goldfarb Abrandt Salzman & Kutzin

Counsel for respondent: Donald M. Nussbaum, Esq.

Kristin Booth Glen, J.

This is a contested proceeding for imposition of a constructive trust and related relief in the estate of Allan David Pfeffer. Decedent's sister, Sheila Karp, and her sons, Ian and Harrison, seek a determination that Sharon Steinberg, decedent's wife of more than15 years, intentionally or recklessly caused decedent's death and should therefore forfeit her interest in this multi-million dollar estate.

Steinberg filed a verified answer denying all of petitioners' claims, and subsequently moved for partial summary judgment on the issue of forfeiture. In opposition, petitioners argued that Steinberg's motion was premature as discovery was incomplete.[FN1] The Court allowed the parties additional time to conduct discovery (CPLR §3212 [f]) and, on October 5, 2010, after completing 14 depositions of treating physicians, nurses, and certain other non-party witnesses, petitioners cross-moved for summary judgment. With discovery concluded, and petitioners now having cross-moved for partial summary judgment, the motion and cross-motion are ripe for summary determination.

Facts

The following facts are undisputed. Decedent was an extremely ill man: he was morbidly obese, had been a heavy smoker for much of his life, had diabetes, was hypertensive, and had high cholesterol, cardiovascular disease and peripheral vascular disease. Decedent had undergone bypass surgery which led to renal failure and the need for dialysis, which he began in 2001. By 2005 decedent had gangrene in all of his extremities requiring amputation of both legs and five of his fingers. He also had stage four bed sores.

Decedent was hospitalized at Lenox Hill Hospital from May 22, 2005 to August 11, 2005 when he was transferred to Terence Cardinal Cooke Nursing Home (Cooke). Dr. Albert Matalon, decedent's nephrologist, recommended that given the certainty of infection, decedent go [*2]home with 24-hour care. Instead, Steinberg [FN2] chose Cooke, a skilled nursing care facility, which was recommended by the hospital because it offered dialysis treatment. Decedent remained at Cooke for nine days, during which time he became infected. Although he was treated with antibiotics there, Cooke arranged for his transfer back to Lenox Hill Hospital on August 20.. Before formal re-admittance to Lenox Hill,[FN3] however, decedent changed his mind and opted instead to go home. At the hospital, Dr. Gary Horbar, decedent's primary care physician, spoke with him at length. He noted in decedent's hospital record,

"[P]atient is awake and alert, vital signs stable. After discussing

situation with patient and his wife, they refuse admission and are signing out against medical advice. They are aware of possible sepsis and possibility that patient will die if he goes home. They adamantly refuse admission and accept all risks and consequences."

Decedent signed out of the hospital against medical advice and went home.[FN4]

On August 22, Dr. Horbar contacted decedent at home. After speaking with him, Dr. Horbar wrote in his medical chart,

"Patient was seen in ER 8/20. Signed out AMA. I called today, patient does not want to be re-hospitalized. I cannot clarify whether or not patient is being dialyzed! I fear he has decided to die at home and nothing more can be done." [FN5]

Later that day, Ms. Karp, Dr. Horbar, and Dr. Matalon, accompanied by the police and EMS workers, removed decedent from his home to the emergency room at New York University Medical Center (NYU) after Dr. Horbar called 911.

During this period, from August 19 to August 23, Adult Protective Services (APS) was also involved, although they had no part in the removal. The subpoenaed records of APS

indicate that a complaint was made by decedent's friends Stan Royce and Esther Mandelbaum, on or about August 19. The initial interview report indicates that Royce "has contacted the DA regarding financial exploitation and the fact that [decedent's] wife wants to do away with [decedent]" and also noted that "[decedent] regrets that his wife has POA and is afraid of her." Later that day, after calling Cooke, the agency noted in its records, "Case reviewed and not [*3]accepted for assessment. [Decedent] currently in a protective setting."

On August 22, after decedent left that "protective setting," Royce again contacted APS, which then determined to accept the case. A caseworker attempted to visit decedent at his home on August 23, spoke to Steinberg and her lawyer, and subsequently learned of his transfer to NYU.

On August 24, an Ethics Subcommittee consultation was called at NYU after, on August 23, Steinberg directed that a do-not-resuscitate order be added to decedent's medical chart. Decedent's doctors chose instead to wait for his condition to continue to improve so that they could speak with him to determine his wishes. Although invited to attend the August 24 meeting, Steinberg declined to attend without counsel. The Subcommittee met with decedent who informed them that he wanted to continue to receive aggressive medical care; he did not want cardiac resuscitation if his heart stopped, but he did want to be intubated and mechanically ventilated should it be necessary. Decedent was also visited that day by an APS caseworker and decedent repeated his treatment wishes to her.

The following day, on August 25, the Ethics Subcommittee reconvened. Steinberg attended this meeting represented by counsel. After some discussion, Dr. David Schwartz, decedent's attending physician, and Joan Barrett, a nurse, left the room to speak with decedent about his treatment wishes. Steinberg remained in the room where the committee was meeting.

Notes of the August 25 Ethics Subcommittee meeting contain the following:

"Ms. Barrett and Dr. Schwartz left the conference room to check on the

patient who had just returned to the ICU from a minor procedure involving

his catheter. The patient's mental status appeared significantly improved,

possibly due to the continued antibiotics, and Dr. Schwartz was again able

to discuss treatment options. While there was no psychiatrist present,

there were several nurses and other physicians present when Dr. Schwartz

asked the patient what type of care he wanted to receive. Mr. Pfeffer

stated that he did not want dialysis and wanted palliative care only.

He was asked to repeat back these statements. Dr. Schwartz was confident

that the patient understood the questions and clearly expressed his wishes."

The APS caseworker who visited decedent on August 24 subsequently filed a report confirming that Steinberg was not present when the discussion between decedent, Dr. Schwartz, and Nurse Barrett took place, nor did she have prior access to him. The APS report indicates that decedent was also interviewed by NYU's attorney, Lynn Lowy, to whom he repeated his desire to end dialysis. The report continues, "the staff at NYU felt very confident that the client was able to make this decision and NYU will place the client into an in-patient hospice [at NYU] once a bed becomes available, which the wife has agreed with."

From August 25 decedent was provided palliative care [FN6] in accordance with his stated wishes; he passed away on September 5, 2005 at the age of 59. His death certificate indicates [*4]that he died of natural causes.

Applicable Law

1. Forfeiture

New York follows the common law principle, enunciated in Riggs v Palmer (115 NY 206 [1899]), that a murderer forfeits his interest in the victim's estate because a wrongdoer may not be permitted to profit from his bad acts. Subsequent cases have delineated the circumstances in which killing results in forfeiture (see e.g. Matter of Wells, 76 Misc 2d 458 [Sur Ct Nassau County 1973] [second degree manslaughter a basis for forfeiture under Riggs]) and made clear that a criminal conviction is not required (see e.g. 6 Warren's Heaton, Surrogate's Court Practice § 74.13 [2], at 74-36 [7th ed]), Matter of Sengillo, 206 Misc 751 [Sur Ct, Wayne County 1954]). Absent a conviction, however, there can be no forfeiture unless it is proven that a person acted recklessly or intentionally in causing the victim's death, notthat the person acted negligently (see (Matter of Pikul, 192 AD2d 259, 262 [lst Dept 1993]). Proof must be by "by a fair preponderance of the evidence"(id.). Petitioners also argue, as a matter of criminal law, a person can be held liable for a victim's death if the person set in motion a chain of events that ultimately resulted in the victim's death, as long as the person's actions are at least a contributory cause of death (Penal Law § 125.25; 125:15; People v Kane, 213 NY 260 [1915]; People v Velez, 159 Misc 2d 38 [Sup Ct, Bronx County 1993]).

2. Summary Judgment

On a motion for summary judgment, the moving party 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, 324 [1986]). Once the movant has made out a prima facie case, the burden shifts to the opposing party to provide evidentiary proof of the existence of questions of fact that require a trial (Zuckerman v City of New York, 49 NY2d 557 [1980]). "[O]nly the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment" (Black v Loomis, 236 AD2d 338 [1st Dept 1997]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose (Zuckerman v City of New York, 49 NY2d 557, 562). The proof offered by both sides must be considered within this framework.

On the undisputed facts previously described, particularly decedent's clearly expressed wishes that he wanted to discontinue aggressive medical care (including dialysis) and wanted only palliative care, and that after cessation of dialysis, decedent passed away on September 5, 2005, Steinberg has clearly made out her prima facie case that she did not intentionally or recklessly cause his death, and that, therefore, forfeiture will not lie. The question for resolution here, then, is whether petitioners have raised a triable issue of fact sufficient to defeat summary judgment.

Discussion

Notwithstanding the undisputed facts already discussed, this case presents two starkly [*5]conflicting narratives: on petitioners' side, Steinberg is portrayed as a greedy [FN7], uncaring [FN8] woman who sought to hasten her husband's death [FN9] and/or denied him appropriate care, and who allegedly moved a young paramour into her home while her husband's condition worsened.[FN10]

Steinberg, on the other hand, describes herself as a loving spouse and designated health care proxy [FN11] to a desperately ill man who, after numerous medical interventions, indignities, and [*6]constant pain, including the pain of dialysis,[FN12] chose a peaceful and dignified death at home. According to her, that choice was interrupted and thwarted when Sheila Karp and Esther Mandelbaum entered their home and removed decedent to NYU hospital [FN13] where he was subjected to additional aggressive treatment until he finally, and repeatedly, told the medical staff that he wished to end all medical treatment and to receive only the palliative care available in a hospice setting.[FN14]

While the record submitted by each side is replete with evidence supporting its narrative, resolution of the instant motion does not require — or even invite — a choice between them, or a determination of the "truth" of decedent's last weeks. This is because, at bottom, petitioners' only arguably viable theories [FN15] of the requisite intentional or reckless killing that would support forfeiture depend on their conclusion or belief that decedent died from sepsis.[FN16] As discussed [*7]below, the conclusion that death was caused by sepsis is based on a misreading of the medical records, and an entirely conclusory affidavit from a non-treating physician who selectively reviewed those records. Petitioners have, however, advanced, sequentially, two different theories of how this "fatal" sepsis occurred because of bedsores or otherwise, either or both the result of Steinberg's bad actions or inactions.

1. Bedsores

Petitioners first claimed that Steinberg did not adequately care (or provide care) for decedent's bedsores, that the bedsores caused the infection (sepsis) from which he suffered, and that infection caused decedent's death.[FN17] Their "bedsore theory" is clearly refuted by the medical evidence.

At his deposition,[FN18] Dr. Schwartz was asked directly if the bedsores (ulcers) were the cause of decedent's septic shock. He explained that the source of the septic shock was "Enterobacter," and that the organisms (decubitus) that grew from the bedsores do not grow Enterobacter. Thus the decubitus ulcers (bedsores) were not the cause of decedent's infection [*8]when he entered NYU,[FN19] and the alleged failure to properly treat bedsores at Cooke cannot be the cause, directly or indirectly, of the sepsis for which he was treated, and which was listed as the "Final Diagnosis" (but not the cause of death) in Dr. Matalon's medical notes.

2. "Delay of Care"

Given the apparently insurmountable problem with their bedsore theory, petitioners next rely on an affidavit by Christina Coyle, M.D., a physician they retained in connection with this proceeding.[FN20] Dr. Coyle, Director of Infectious Diseases at Jacobi Hospital in the Bronx, reviewed decedent's charts from Cooke, the Lenox Hill Emergency Room (where he was treated briefly on August 20), and NYU, where he was a patient from August 22, 2005 through his death on September 5, 2005, as well as the depositions of Drs. Horbar and Schwartz, and "parts of the charts of Lenox Hill Hospital admission from May 22, 2005 - August 11, 2005." From her review of those records she concluded: 1. Failure "to hospitalize decedent [from August 12 to August 19, while he was at

Cooke] was an actual contributory cause of [decedent's] death"; and 2. The delay in treatment from August 20 to August 22 [FN21] was an "actual contributory cause of [decedent's] death"; and 3. "The delays in treating [decedent's] sepsis caused him to progress and develop septic shock secondary to the ongoing bacteremia with the Enterobacter"; and

4. "The cause of death was septic shock." [*9]

Aside from her mischaracterizations of Steinberg's responsibility, Coyle completely ignores the fact, reflected in Dr. Matalon's deposition (and demonstrated in the NYU medical records) that as of August 25, "[decedent] was definitely improving from his sepsis and his infections" and that antibiotic treatment continued thereafter until decedent's death.

3. Cause of Death

All of petitioners' arguments as to how Steinberg caused decedent's death —whether because of bedsores, inadequate care, or Dr. Coyle's "delays in care"— rest on the belief that death was caused by septic shock or sepsis. It was not.

The evidence for petitioners' belief is a discharge note by Dr. Matalon which, after a brief

summary of decedent's treatment at NYU, contains the following notation:

"FINAL DIAGNOSIS: Septic shock".

Subsequently, Dr. Matalon was deposed and testified as follows:

"Q. What is your opinion of the cause of [decedent's] death?

"A.Sepsis.

"Q.What does that mean?

"A.Overwhelming infection.

"Q.After you got on comfort care -

"A.You know, that's probably wrong. I made a mistake.[FN22] Probably the cause

of his death was uremia, meaning kidney failure.

"Q.The cause of his death was kidney failure because he stopped dialysis?

"A.Yes."[FN23]

The facts in the record demonstrate conclusively that decedent died of kidney failure (uremia) caused by the termination of dialysis that he knowingly and voluntarily requested. He did not die of sepsis, and nothing Steinberg did or did not do, either recklessly or intentionally, caused death by sepsis. Petitioners have failed to create a triable issue of fact as to this dispositive issue.

Whether Steinberg was a good and loving wife who wanted only to honor her husband's [*10]wishes or whether she preferred that his death be hastened for other reasons is not relevant to petitioners' forfeiture claim. Accordingly, Steinberg's motion for partial summary judgment is granted, petitioners' cross- motion is denied, and the forfeiture claim is dismissed.

This constitutes the decision and order of the court.

____________________________________

S U R R O G A T E

Dated: September 22, 2011 Footnotes

Footnote 1:Specifically, they asserted that the deposition testimony of Dr. David Schwartz and Joan Barrett, R.N., the medical professionals to whom decedent communicated his final decision to refuse life sustaining treatment, was material and necessary.

Footnote 2: While her affidavits support the fact that Steinberg made the choice of Cooke, there is no evidence that decedent was incapable of deciding where to be transferred, so that as a legal matter, Steinberg was not acting under any advance directive, but rather in a collaborative fashion as decedent's wife.

Footnote 3: Decedent was taken to the Emergency Room on the evening of August 20 and left for home the next morning before having been formally re-admitted to the hospital.

Footnote 4: Dr. Horbar testified that he asked Steinberg to sign the medical note acknowledging that decedent's decision to go home was against medical advice because decedent was an amputee.

Footnote 5: Dr. Horbar testified that decedent also told him on August 20 that his wishes were to continue dialysis, and that he was going to contact Dr. Matalon. Decedent failed to contact Matalon, however, to arrange for the treatment.

Footnote 6:The NYU hospital records that have been submitted indicate that at least for a significant portion of this time he was conscious and capacitated, and thus could have, had he wished, changed his mind and resumed dialysis.

Footnote 7: The initial report to APS was of "financial abuse," based on Steinberg's possession and alleged misuse of a power of attorney from decedent.

Footnote 8: Petitioners point to notes of a conversation Steinberg allegedly had with Dr. Matalon in which she indicated that she would not authorize 24-hour care for decedent because she needed the money more and wished to preserve her inheritance.

Footnote 9:Decedent's friend Stan Royce reported to APS that, while at Cooke, Steinberg was "giving [decedent] morphine lollipops in addition to what the hospital staff at Lenox Hill had been administering to the client [and] . . tak[ing] other drugs from her house to the facility and may be overdosing [decedent]."

In deposition testimony heavily relied on by petitioners, Dr. Matalon offered his opinion that "Steinberg took steps to try to cause [decedent's] death," but continued, " however, in the end, it was not because of Sharon Steinberg. . ." Asked to clarify, he stated, "[U]ltimately Sharon Steinberg did not cause [decedent's] death."

Footnote 10:Sheila Karp reported that a young man, Timothy Goldberg, "had moved into [decedent's] home and had been living with Sharon Steinberg shortly after [decedent's] hospitalization . . . in May, 2005." Her counsel argued that "[decedent's] death was precisely what Sharon Steinberg desired . . . she acted in this [heartless] manner and hastened [decedent's] death to preserve her inheritance and possibly to be free to be with one or more paramours."

Steinberg denies any inappropriate relationship with Goldberg who, she explains, was the nephew of a registered nurse hired to care for decedent, and that "[i]t is my friendship with Tim's parents that allowed Tim to stay at my home, nothing more."

Footnote 11:Decedent signed a standard form health care proxy naming Steinberg in May 2007, before his amputations or any of the events recounted by petitioners. In accordance with the proxy Steinberg was only to make decisions in the event of decedent's incapacity. Significantly, the proxy also provided,

"I direct my attending physician to withhold and withdraw

treatment that serves only to prolong my dying if I should

be in . . . a terminal condition . . . I direct that treatment be

limited to measures to keep me comfortable and to relieve

pain . . . I do want maximum pain relief, even if it may hasten

my death."

Footnote 12:The record demonstrates that, while at Cooke, on three occasions, August 15, August 17, and August 19, decedent cut short his dialysis sessions because of pain.

Footnote 13: As Steinberg explains, "As early as August 20, 2005 [decedent] had made known his intentions. He also told his sister, petitioner Sheila Karp . . . But for the interference of Sheila Karp and Esther Mandelbaum, [decedent] would have died peacefully at home with me at his side."

Footnote 14:As the NYU Ethics Subcommittee report of August 25 concludes:

"In light of the change in patient's decision-making capacity

and his wishes for palliative care rather than aggressive

treatment, there was no longer a conflict between the medical

team's obligations and the wife's desire to arrange for hospice

care. The Ethics Subcommittee recommends that comfort care

only be given in accordance with such stated wishes."

The APS report of August 31 confirms that:

"[decedent] appears to be alert and oriented enough to state

to the attending doctors that he no longer [sic] want [sic]

continuing care and wishes to be placed into an in-patient

hospice."

Footnote 15:Earlier in the case petitioners proposed that decedent was driven to make the choice to end his life because of excruciating pain caused by Steinberg's mis-, or lack of, treatment. Lacking anything but speculation for this theory, petitioners have apparently abandoned it.

Footnote 16:In a January 2010 affirmation in support of petitioners' motion for partial summary judgment, counsel wrote:

"Ultimately, as a result of [Steinberg's] actions, [decedent's] sepsis deteriorated into septic shock, which two of his physicians determined to have been the cause of his death."

Footnote 17:In his October 2008 affirmation, counsel wrote that "had [decedent] received the recommended care for his bedsores, other than the care Steinberg chose to give, [decedent's] death on September 5, 2005 could have been avoided." Counsel here refers to the choice made to have decedent transferred from Lenox Hill to a skilled nursing facility which provided dialysis, rather than, as recommended, to his home with 24-hour care and trips to the hospital for dialysis.

Footnote 18:The summary judgment motion was held in abeyance in part to permit petitioners to depose Dr. Schwartz, who treated decedent at NYU. In her affidavit in support of further depositions, petitioner Sheila Karp argued,

" [I]f [decedent] was already terminally ill because of sepsis on

August 25, 2005, the date that [decedent] instructed NYU to stop

lifesaving procedures or if [decedent's] sepsis at the very least,

was a substantial contributing factor to his death, and if the sepsis

was caused intentionally or recklessly by Sharon Steinberg, then

Sharon Steinberg is criminally responsible for his death. The reason

these depositions are necessary is to help determine whether [decedent]

already had a terminal illness because of sepsis on August 25, 2005,

or whether . . . sepsis was a substantial contributing factor to his

death."

According to Karp, decedent developed this sepsis leading to his admission at NYU because "Sharon Steinberg refused to provide [him] with round-the—clock aides for his bedsores that he required."

Footnote 19:After explaining Enterobacter, Dr. Schwartz testified, "I didn't have the feeling at the time that the ulcers were the source of septic shock."

Footnote 20:As a general matter, the conclusions of a non-treating expert physician, which are based solely on review of decedent's medical records, must be considered the "weakest and most unreliable type of evidence" (Matter of Buchanan, 245 AD2d 642, 646 [3d Dept 1997] [citations omitted], and rejected as speculative (see generally Matter of Vukich, 53 AD2d 1029 [4th Dept 1976]).

Footnote 21: Dr. Coyle attributes the "delay" in treatment caused by decedent's refusal of admission to Lenox Hill and, instead, his return home, solely to Steinberg. Decedent's personal physician, Dr. Horbar, testified about the event quite differently. He characterized decedent as "a very highly intelligent person" who was "fully awake, fully alert, fully oriented and fully aware of the circumstances" When he told Dr. Horbar of his choice to go home the latter testified he told decedent:

"that that was unacceptable to me as a physician, sepsis is a serious situation, it can be life threatening, and that to allow somebody out of a monitored circumstance with an identified septic situation could have dire circumstances, including death. . .[Decedent responded that] he intended to leave the hospital, fully aware that that was my recommendation, fully accepting of the potential consequences. . ."

Footnote 22:Dr. Matalon explained that the "final diagnosis" in his note referred to the condition for which decedent was admitted and treated, and that he "did not write in this note what the cause of death was."

Footnote 23:At his deposition Dr. Horbar, decedent's treating physician, reached the same conclusion. He was also asked :

"Q.What was the cause of his death, if you know?"

and answered,

"A.The withdrawal of dialysis".