Hanley v Engel Burman Senior Hous. at Massapequa, LLC
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Hanley v Engel Burman Senior Hous. at Massapequa, LLC 2012 NY Slip Op 30669(U) March 7, 2012 Supreme Court, Nassau County Docket Number: 026689/09 Judge: Randy Sue Marber 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 Present: HON. RANDY SUE MARBER JUSTICE TRIAL/IAS PART 14 RUTH HANLEY, deceased, by and through the Administratrix , of her Estate , PEGGY LINQUIST Plaintiffs Index No. : 026689/09 Motion Sequence... Motion Date... 12/22/11 -against- ENGEL BURN SENIOR HOUSING AT MASSAPEQUA , LLC, EB CAR AT MASSAPEQUA , LLC, ULTIMATE CAR NEW YORK , LLC, and THE BRISTAL AT MASSAPEQUA Defendants. Papers Submitted: Notice of Motion................................. Affirmation in Opposition................... Reply Affirmation................................ Upon the foregoing papers , the motion by the Defendants , Engel Burman Senior Housing at Massapequa , LLC , EB Care at Massapequa, LLC , d//a The Bristal at Massapequa and Ultimate Care New York, LLC , (hereafter "Bristal") pursuant to CPLR seeking an order 3212 granting them sumary judgment dismissing the Plaintiffs complaint against them is decided as her inafter provided. [* 2] The Plaintiff in this action, Peggy Linquist , as Administratrix of the Estate of Ruth Hanley, seeks to recover damages for personal injuries as well as the death of her mother , the decedent Ruth Hanley. She alleges that the Defendant , Bristal, the assisted living facilty where her mother resided for the last 13 months of her life, acted negligently in inter alia, allowing her mother to be admitted there and for allowing her to continue to live there when it became an unsuitable environment for her and was unable to meet all of her needs. More specifically, the Plaintiff faults the Defendant, Bristal , both for accepting her mother as a resident and not compellng her transfer to a more skiled facility. The Plaintiff also faults the Defendant , Bristal , for the care it provided to her mother. In particular, she alleges that the Defendant , Bristal' s negligence resulted in her mother s numerous falls and their ensuing consequences , including Ms. Hanley s premature death. She has advanced causes of action sounding in negligence , wrongful death, gross negligence and breach of contract. The Defendant , Bristal , maintains that the propriety of both Ms. Hanley s original residence there as well as her continuing residence at their facilty was always determined by independent doctors , as was required by the applicable regulations. The Defendant , Bristal additionally maintains that at all times, Ms. Hanley met all of its retention standards even up until the day of her death. It accordingly seeks summary judgment dismissing the complaint. The facts pertinent to the determination of this motion are as follows: The Bristal is an Enriched Housing Assisted Living facilty governed by the [* 3] Social Services Law and Part 48 ofthe New York State Department of Health Regulations. As an assisted living facility, it supplies room and board , housekeeping and recreational activities for independent adults. See Public Health Law ~ 2 (28). Supportive assistance is provided with dressing, incontinence care and medication management. It does not provide medical or skiled services. Medical services are at all times provided by outside physicians. See Public Health Law ~ 2 (28). Furthermore, it is the residents ' attending doctors who assess both their suitabilty for admission as well as the propriety of their continued residency there. Ms. Hanley was first placed at the Bristal on or about June 25, 2007 at her family s request. She presented with a variety of long-standing ilnesses and medical conditions, including acute anemia, dementia (which became progressively worse during her residence at the Bristal), hypertension, coronar arery disease, hypothyroidism astha, atrial fibrilation and adrenal insufficiency for which she had been treated with steroidal medications for over fift years. Her medical history included surgical repair of an abdominal aortic aneurysm and a pancreatic mass. At the Bristal , Ms. Hanley resided in the Reflections Unit , a secure unit reserved for residents with some level of dementia. Residential Functional Assessments were performed on intake on June 25 , 2007 , on July 25, 2007 and quarerly on October 18, 2007 , Januar 2 2008, March 3, 2008 and May 25, 2008, by which date she was receiving Hospice Care. The admission agreement between Ms. Hanley and the Bristal provided: [* 4] The Operator wil not admit nor retain any person requiring continual medical or nursing care. Accordingly, admissions are restricted to individuals: Who , if disabled , have stabilzed chronic disabilties; Who are ambulatory as defined by New York State Department of Health Code; and Whose mental condition is such that they are not a danger to themselves or others. It also provided: B. The grounds upon which involuntary termination may occur are: If the Resident required continual medical or nursing care which the Community (Le. , the Bristal) does not provide: If the Resident' s behavior poses imminent risk of death or imminent risk of serious physical harm to himself/erself or anyone else; or If the Resident repeatedly behaves in a manner that directly impairs the well- being, care or safety of the Resident or any other resident , or which substantially interferes with the orderly operation of the ommum ... 10 NYCRR 488.4 ("Admission and Retention Standards ) precludes residents requiring more extensive services from continuing to reside at an assisted living facilty. NYCRR 488. 7(5) provides: In the event that a resident becomes il or displays a progressive deterioration of health or behavior, the operation must: (i) (ii) (ii) protect the resident' s safety and comfort; obtain medical evaluation and services; and if necessar , arange for the transfer of the resident to appropriate medical facility. [* 5] Skiled or enhanced assisted living facilties are permitted to admit and retain residents who exceed the admission and retention standards of assisted living provided that it can provide or arrange an adequate safe plan of care in accordance with the resident' s individual service plan (" ISP" ). 10 NYCRR 1001.7(d). 10 NYCRR 1001.7(e)(2) provides: If a resident reaches the point where (s)he is in need of twenty- four hour skiled nursing care. . . then the resident shall be discharged from the residence and the operator shall initiate proceedings for the termination of the residency agreement. . . provided, however, (that) a resident may remain at a residence certified as an enhanced assisted living residence if each of the following conditions are met: the resident' s physician and home care services agency, if (i) applicable, determine and document that , with the provision of additional nursing, medical and/or hospice care , the resident can be safely cared for in the residence and would not require placement in a hospital , nursing home or other facilty licensed under Aricle 28 of the Public Health Law or Aricle 19 31 or 32 of the Mental Hygiene Law; (ii) the resident hires appropriate nursing, medical or hospice staff to care for his or her increased needs; (ii) the operator agrees to retain the resident and to coordinate the care provided by the enhanced assisted living residence and other provider staff; and (iv) the resident is otherwise eligible to reside in the facilty. Again , determinations like these are not made by an assisted living facilty like the Bristal but are made by private attending physicians. Kathleen Schneider , the Reflections Unit Director at the Bristal when Ms. [* 6] Hanley resided there , has attested that Ms. Hanley always met the Bristal' s retention standards: She was ambulatory with the use of a walker and , in general, functioned with the assistance of one aide. Ms. Schneider furter attests that the Bristal does not provide medical services; only private doctors do and it was those doctors who , though periodic Medical Evaluations and Mental Health Evaluations , determined whether Ms. Hanley s changed needs or circumstances required her to be transferred to a skiled nursing facility or mental health facilty, or whether she could be retained as a resident of the assisted living facilty. Ms. Schneider noted that the facilty staff might observe changes in the resident' s status and discuss the possible need for additional care with the family and the resident' s doctors , but any decision regarding the need to transfer a resident from the Bristal to a skiled nursing facilty required a medical determination that such a transfer was necessar. Ms. Schneider opined that Ms. Hanley met all the criteria for admission. She was ambulatory; able to have her personal needs met in the Reflections Unit; generally functioned with the assistance of one aide; and, she was not a danger to herself or others despite her dementia. Ms. Schneider further opines that Ms. Hanley was always a suitable resident. She points out that during her thirteen month residence, she was evaluated by a physician at least six times at which time they consistently opined that she needed the support and services available in an assisted living facility like the Bristal and that she did not require placement in a skiled nursing or mental health facilty. Ms. Schneider also notes that Ms. Hanley was evaluated by a psychiatrist twice , on July 26 2007 and Februar 15, 2008, and [* 7] both times her continued residence in an assisted living facilty was found to be appropriate by them. Ms. Schneider notes that none of Ms. Hanley s attending doctors ever recommended her discharge. Ms. Schneider further notes that consistent with 10 NYCRR 1001.7, Ms. Hanley was permitted to remain at the Bristal despite her increased needs in view of her family s fervent wish to keep her there and the addition of private duty aides and Hospice Care to ensure her continued well being. As for Ms. Hanley s falls , Ms. Schneider notes that her record reflected that she was " unsteady " upon admission. Therefore, to reduce the risk of falls, it was specified that she was to use a walker and that she would be escorted to meals and activities by a staff member. Eventually, she also received assistace with going to the bathroom. And , when she was placed on Hospice Care, she had a commode and handrail in her room. Not only did none of her doctors ever recommend a transfer to a more skiled facilty, her family hired extra aides and ultimately brought in Hospice to avert her transfer to a more skiled facilty. Ms. Schneider opines that the requirements set forth at 10 NYCRR 1001. 7 (e) (2) were in fact met making it appropriate for Ms. Hanley to remain at the Bristal. As for Ms. Hanley s falls and the Bristal' s alleged failure to provide adequate support , Ms. Schneider notes that the Brtistal met or exceeded the Department of Health' guidelines. She also notes that some of Ms. Hanley s falls occurred when she was being attended to by an aide and the falls were unavoidable. She also notes that the fact that Ms. [* 8] Hanley was found sitting on the floor next to her door did not even establish that she fell because dementia patients do that; they just sit themselves down. As for her last " fall" on July 25, 2008 , Ms. Schneider notes that Ms. Hanley was sitting on her bed and she leaned over and fell into the headboard when Aide Haris went to get her walker. Dr. Levine , who is Board Certified in Internal Medicine and Geriatric Medicine , has reviewed Ms. Hanley s pertinent medical records as well as the pertinent records of this case. It is his opinion that the Bristal did not act negligently in its retention and care of Ms. Hanley. Like Ms. Schneider, Dr. Levine notes that facilties like the Bristal rely on doctors to make determinations regarding a resident's admission and stay and none of Ms. Hanley s doctors ever took issue with her continued residence at the Bristal. Dr. Levine notes that a history of medical diagnosis does not preclude acceptance at an assisted living facilty: It is the patient' s functional status that is determinative. He fuher residents are permitted to continue to reside in assisted living facilties despite increased notes that needs which would normally dictate against their admission in the first instance if appropriate accommodations can be and are made. He specifically opines that Ms. Hanley s continued residence at the Bristal during the last four months of her life was appropriate as not only was it done with her family s endorsement , private duty aides and Hospice Care filled in the gaps in Ms. Hanley s care. Like Ms. Schneider , Dr. Levine opined that Ms. Hanley s initial admission was appropriate; she was able to walk independently and despite being a little confused, was able ," [* 9] to cook for herself and dress and wash herself and tend to her own toiletry needs. She was appropriately found to be suitable for admission via a physical and medical evaluation by private doctors and she was evaluated via an Initial Functional Resident Assessment upon admission. Dr. Levine notes that Ms. Hanley was medically re-evaluated numerous times on October 17, 2007, December 26, 2007 , January 27, 2008 , February 15 and 19, 2008 and July 29, 2008. He notes that " (a)ware of her history and her multiple comorbidity factors Mrs. Hanley s treating and evaluating physicians nonetheless approved her retention at the Bristal , and appropriately so (and that) it was not within the facilty' s purview to overrle these medical determinations and compel the family to remove Mrs. Hanley to a nursing home , particularly (when) she was already receiving Hospice Care within the facilty. He further notes that Ms. Hanley s mental health was evaluated on July 26 2007 (diagnosis: dementia with psychosis or psychotic symptoms) and February 15, 2008 (diagnosis: dementia with depression) and her residence at Bristal was approved by the examining psychiatrists. None ofthe psychiatrists recommended a change in residency. Dr. Levine also notes that Ms. Schneider evaluated Ms. Hanley regularly, too. Dr. Levine notes that regulations mandated that Ms. Hanley s suitabilty for continued residence at the Bristal had to be determined by a physician after each hospitalization and her return to the Bristal was consistently approved by her doctors on each and every occasion. As for Ms. Hanley s falls , Dr. Levine also notes she was unsteady on admission, and that while there were nine incidents in 13 months falls involving medically [* 10] compromised seniors are an inevitable fact of life in senior residential facilties which occur without any fault on the par propensity to fall was always of the facilty. " many of He notes that Ms. Hanley noted and addressed by Bristal. He also notes that Ms. Hanley s family was always informed of her falls but wanted her kept at the Bristal anyway, even after considering options. In fact , he notes that in February 2008 , Ms. Hanley s family had her moved back to Bristal after a three week stay at Daleview Nursing Home where she recuperated from a five day stay in the hospital. Similarly, at a nursing home following other hospitalizations Bristal. In fact , her family resisted rehabiltation , always seeking her to return to the Ms. Hanley s records at the Bristal consistently reflect that the Plaintiff feared that her mother would be transferred out of the Bristal and that she steadfastly opposed that. In retrospect, she now opines that her mother would have been better off at a nursing home because she was fallng too much at the Bristal and at a would have been in bed a lot and would have had a wheelchair. Dr. nursing home , she Levine represents that short of the use of restraints which are not used at an assisted living facilty, many of Ms. Hanley s falls could not have been prevented. Several of her falls occured despite one- to- one assistance being given. Dr. Levine also opined that the Bristal was adequately staffed. The records indicate that once Hospice began in early March, 2008 Hanley s needs were routinely assessed and monitored. The level , all of Ms. of care she required was evaluated time and time again by Hospice nurses and the need for a change was never found. In fact , Ms. Hanley was provided with a wheelchair at one point when she was unsteady on [* 11] her feet and only allowed to resume use of her walker when she was able to do so safely. They also indicate not only was the Plaintiff regularly advised of her mother s state, alternate treatment was discussed numerous times and she elected not to pursue other care options. Dr. Levine notes that despite three incidents of blows to her head on March 30 2008 , May 6, 2008 and July 25, 2008, Ms. Hanley only sustained soft tissue injuries; there was never intra-cranial trauma. In fact, Ms. Hanley was seen at the hospital on each occasion and the doctors all approved her return to the Bristal. And, there were numerous other hospitalizations for medical treatment and on each and every occasion, Ms. Hanley s doctors approved her return to the Bristal. Finally, Dr. Levine opined that " (t)here is no plausible provable link between any of the various reported incidents and falls and (Ms. Hanley s) death. " The Death Certificate lists the cause of death as cardiopulmonary failure " due or as a consequence of' chronic debiltative state " due or as a consequence of' advanced dementia. He notes that Ms. Hanley s death "was due to an acute change in condition manifested by shortness of breach which) suggests a cardiovascular event such as a myocardial infarction, arrhythmia or pulmonary embolus. " In a Bristal Case Note dated 7/30/08 , Ms. Hanley s personal physician Dr. Mauro Gasparini , opined that her death was most likely due to a leak in the previously repaired abdominal aortic aneurysm. Dr. Levine notes that " (n)one of these events could have taken place due to a fall-related injury. The elements of a negligence claim are the existence of a duty, a breach thereof [* 12] Khaimov v. Martinez and a resulting injury. 74 A. D.3d 1031 (2 Dept. 2010). The Defendant, Bristal, has established that it did not breach a duty to Ms. Hanley and even assuming, arguendo, that it did, any such breach did not cause Ms. Hanley s injury. It is not disputed that it was Ms. Hanley s doctors who not only made the determination regarding her initial suitabilty to reside at the Bristal but whether it was appropriate for her to remain there as well. Without their approval , Ms. Hanley could not have been accepted or retained at the Bristal. Similar to a hospital' s a patient' s doctor, the Bristal was not required vis-a-vis role to question Ms. Hanley s doctors ' orders unless they were so clearly contraindicated by v. Bedard normal practice that ordinary prudence required that they be questioned. 88 A. 3d 754 , 755 (2 2d 255, 265 n.3 (1968); Dept. 1974); see also Fiorentino Toth Dept. 2011), citing v. Georgeti v. v. Community Hosp. at Glen Cove , 22 United Hosp. Medical Ctr. Wenger 19 N. Klein 2d 271 (2 204 A. 2d 407 414 (1967). Not only has the Defendant, Bristal, established that the doctors ' determinations were not questionable, it has s doctors also established that via its assessments, it confirmed that Ms. Hanley determinations were appropriate and not contraindicated. A claim to recover for gross negligence is to be dismissed when there is " ' absence of any conduct that could be viewed as so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights Extended Care Center Corp. 90 A. D.3d 833 (2 Adult Community, Inc., of others. Dept. 2011), quoting 32 A. D.3d 1273, 1274 (4th Dept. 2006)) or (Gold Averett v. Park Ave. v. Loretto activated by evil or [* 13] reprehensible motives Spinosa Dept. 2006), quoting v. (Anzolone v. Long Island Care Center, Inc. 26 A. D.3d 449 (2 Weinstein 168 A. 2d 32 , 43 (2 Dept. 1991)). The Defendant, Bristal , has demonstrated that there has been no such conduct here. (T)o 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 ofthe 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 Slobin appointment ofa personal representative of the decedent." Chong 1110(A) (Supreme Court Nassau County 2008), quoting Authority, 83 A. 2d 546 (2 Boasiako 19 Misc 3d v. v. New York City Transit Dept. 1981). Again, the Defendant , Bristal, has established both that it did not commit a wrongful act and even if it did , it was not the cause of Ms. Hanley s death. The " essential elements of a cause of action to recover damages for breach of contract" are "the existence of a contract, the plaintiff s performance under the contract , the defendant' s breach ofthe contract , and resulting damages. of New York, Inc. 69 A. D.3d 802, 803 (2 JP Morgan Chase v. JH Elec. Dept. 2010). The Defendant, Bristal , has also established that it did not breach its agreement with Ms. Hanley and in any event , any possible breach by it did not cause Ms. Hanley s damages. The Defendant , Bristal , has established its entitlement to summary judgment [* 14] dismissing the complaint against it thereby shifting the burden to the Plaintiffto establish the existence of a material issue of fact. The Plaintiff has not met her burden. In opposition, the Plaintiffhas submitted the affidavit of Alan M. Radin, M. who is Board Certified in Internal Medicine with a Special Competence in Geriatrics. Having examined Ms. Hanley s medical records and the records of this case, he opined to a reasonable degree of medical certainty that the Defendants were negligent in admitting and retaining Ms. Hanley despite the fact that her condition required continual medical nursing care; in failng to involuntarily and terminate her residency for behavior that posed an imminent risk of death or imminent risk of serious physical har to herself by fallng; in failng to seek appropriate evaluations and make arangements to transfer Ms. Hanley to more appropriate facilty after she sustained injuries that required continual medical and nursing care; and, in failng to provide adequate supervision and protective devices to prevent falls and injuries. Dr. Radin opined that since the Bristal conducts a Functional Assessment upon admitting a resident , it retained authority to refuse to accept them. That being said , Dr. Radin opined that in view of her medical history, Ms. Hanley required the services of a skiled nursing facilty and should not have been accepted. He also opined that she posed an increased risk of fallng with the potential for serious injuries. Dr. Radin opined that Ms. Hanley fell eight times in a year. From this , he [* 15] concluded that the Bristal was not implementing adequate safeguards to prevent her falls. However, on one occasion, she was found simply sitting on the floor with no injuries and on two occasions , she was being assisted by an aide when she fell. He also opined that the fact that she fell when an aide was there is clear evidence of negligence. He goes on to opine that repeated falls have a negative impact on elderly people s quality of life and health because avoidance of activities which pose a fear of fallng results in a loss of physical function, decreased postural control and difficulties in activities of daily living. He also opined that during the period of time that Ms. Hanley resided at The Bristal she had 8 falls and contemporaneously demonstrated an overall decline in the independent abilty to engage in activities of daily living. Further, these falls caused periods of immobilty, bed rest and hospitalization. Immobilty is a known factor in worsening Congestive Hear Failure and Kidney disease, both conditions Ms. Hanley suffered. " He further opined that Ms. Hanley history of multiple falls proximately caused her to suffer physical injuries, mental anguish and fear, a loss of personal dignity and independence , worsening of her underlying medical conditions and frailty, and an overall decline in her quality of life. " He opined that Ms. Hanley s multiple falls combined with her deteriorating medical condition coupled with the Bristal' s failure to transfer her to a skiled nursing facilty led to her death. The Plaintiff does not contest the fact that outside doctors approved Ms. Hanley s initial and continued placement at the Bristal. Rather , the Plaintiff, via its expert faults the Bristal for not overrling those determinations. The Defendants have established [* 16] that while that's possible , it is rare and that there were no reasons to do so here since Ms. Hanley s needs could be met at the Bristal. The regulations on which the Plaintiffs rely (10 NYCRR 415.12; 42 CFR 483. 25) which aim to ensure that residents ' abilties in daily living do not diminish unless unavoidable and that residents receive adequate supervision and assistive devices to prevent accidents apply to a skiled nursing facilties, not assisted living facilties. The Bristal was not a nursing home and contrary to the Plaintiff s contention , the fact that additional aides and Hospice Care were brought in to attend to Ms. Hanley did not turn it into one. Hospice Care is customarily provided at not only homes but assisted living facilties been condoned by the New York State consistently taken by the Bristal Department of Health. to try to as well and has Furthermore, care was prevent falls beginning with Ms. Hanley admission to the Bristal and increased as needed. Hospice Care and social workers aided in that endeavor as well. And, while it is not determinative , the Court must note the Plaintiff s strident efforts to keep her mother at the Bristal and ardent efforts to resist her placement in a nursing home. Contrary to the Plaintiffs characterization of Ms. Hanley s falls on March 20, 2008 and July 25, 2008, the fact that she fell even when being attended to by an aide does not primafacie demonstrate negligence by the Bristal. And, there is absolutely no evidence that these things would have been avoided had Ms. Hanley been in a nursing home. Furthermore, the Plaintiff has failed to articulate what and how care at a skiled [* 17] nursing facilty would have differed from the care Ms. Hanley was receiving at the Bristal especially after March 3 , 2008 , when Hospice Care began or how her death would have been avoided. And , their allegations that Ms. Hanley suffered " mental anguish and fear , a loss of personal dignity and independence , worsening ofunderlying medical conditions and frailty, and an overall decline in her quality of life " finds no factual support and accordingly cannot See, Delgado be relied on to establish damages. 570 (1 st Dept. 2008); Andrews v. v. New York City Hous. Auth., 51 A. D.3d New YorkCity Hous. Auth. 66 A. D.3d 619 (2 Dept. 2009). Most importantly, a causative link between the Bristal' scare of Ms. Hanley and her death has not been established. Even considering not just the July 25, 2008 fall but the cumulative effect of her numerous falls and the fact that " chronic debiltative state " is mentioned as a contributing factor to the ultimate cause of Ms. Hanley s death on her death certificate (which was actually cardiopulmonary failure) does not suffice to link her falls to her death. The Plaintiffs expert , Dr. Radin s conclusion , that " Ruth Hanley s history of multiple falls with increasing frequency proximately caused her " Chronic Debilitative State and was a substantial contributing factor to her death on July 25 , 2010" is not adequately supported by the record in view of Ms. Hanley s serious pre-morbid medical conditions and the complete absence of any evidence of injury to her brain. Accordingly, it is hereby ORDERED, that the Defendants ' motion for sumary judgment , pursuant to [* 18] CPLR ~ 3212, is GRANTED and the complaint is dismissed without costs. This constitutes the decision and order of the Court. DATED: Mineola , New York March 7, 2012 ndY Sue Marber, J. ENTERED MAR 09 2012 NASAU COUNTY cOOTY CLERK' S OFFICE
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