Milos v Fairview Nursing Care Ctr., Inc.

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Milos v Fairview Nursing Care Ctr., Inc. 2018 NY Slip Op 32585(U) October 2, 2018 Supreme Court, Kings County Docket Number: 501749/2014 Judge: Bernard J. Graham Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 10/05/2018 INDEX NO. 501749/2014 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 10/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS VIRGINIA MILOS as Administrator for the Estate of LENUTA MILOS, and VIRGINIA MILOS, individually Index No.: 501749/2014 Plaintiffs, DECISION/ORDER -againstFAIRVIEW NURSING CARE CENTER, INC., ZVI BATASH, M.D., DINAH KLEIN, ARI KATZ, THE KLEIN FAMILY FOUNDATION Hon. Judge Bernard J. Graham Supreme Court Justice Defendants Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion to: award summary judgment to the defendant. Zvi Batash. pursuant to CPLR sec. 3212. Papers Notice of Motion and Affidavits Annexed ...................... . Order to Show cause and Affidavits Annexed ............ . Answering Affidavits .................................................. . Replying Affidavits ..................................................... . Exhibits ....................................................................... . Other: ....... (memo) ............................................................. . Numbered - - - 1-2 _ _3_ __ 4- - 5 ---- Upon the foregoing cited papers, the Decision/Order on this motion is as follows: Decision: In this motion for summary judgment, the defendant, Zvi Batash, M.D. ("Dr. Batash"), by his attomey(s), has moved to dismiss plaintiffs complaint pursuant to CPLR §3212. The motion and supporting papers were filed on or about January 24, 2018. Plaintiff, Virginia Milos, opposes this motion and argues that summary judgment is not appropriate in this matter. Opposition to this motion was submitted on or about March 21, 2018. The instant motion was argued before the undersigned in Part 36 of this Court on June 21, 2018. 1 1 of 11 [*FILED: 2] KINGS COUNTY CLERK 10/05/2018 NYSCEF DOC. NO. 256 INDEX NO. 501749/2014 RECEIVED NYSCEF: 10/11/2018 Background: Lenuta Milos ("Mrs. Milos") was admitted to North Shore University Hospital-Manhasset ("NSUH-Manhasset") on April 3, 2012. Prior to being admitted, Mrs. Milos resided at home and had a history of dementia, prior stroke, and dysphagia (difficulty swallowing) (see NSUH Medical Records, Ex. "J"). At NSUH-Manhasaet, Mrs. Milos was treated for generalized weakness, dehydration, and UTI (see NSUH Med. Records, Ex. "J"). Dr. Batash was the attending physician assigned to treat Mrs. Milos at NSUH-Manhasset and among the treatments he provided, he ordered nutritional and swallowing evaluations to develop an appropriate dysphagia diet, and continued Mrs. Milos' prescriptions of Aricept and Seroquel (see Exhibit "G" at 48). On April 10, 2012, Mrs. Milos was discharged to Fairview Nursing Care Center ("Fairview") for rehabilitation (see NSUH Med. Records, Exhibit "J"), where Dr~ Batash was an attending physician. Dr. Batash claims Mrs. Milos' daughter Virginia specifically requested that Mrs. Milos be transferred to Fairview so Dr. Batash could continue treating her because she was happy with his care (see Batash Dep., (Ex. "G") at 24). On April 11, 2012, Dr. Batash gave Mrs. Milos an initial evaluation at Fairview, as required for all new residents (see Batash Dep., (Ex. "G") at 26, Milos Med. Chart, Ex. "K"). Mrs. Milos' chief complaints were weakness and dementia, and she was presently taking Colace, Aricept, multivitamins, Seroquel, Senna, and a Z-Bec vitamin. Dr. Batash performed a full physical exam, continued Mrs. Milos' prescriptions, and adjusted the administration of Seroquel from 9:00 AM to 9:00 PM due to his observation that she appeared more somnolent than usual. According to Dr. Batash, Seroquel is a long-term chronic psychiatric medicati.on that patients are usually on for a lifetime (see Batash Dep., (Ex. "G") at 64). He also ordered a psychiatric evaluation for the Seroquel prescription and a nutritional evaluation to address Mrs. Milos' 2 2 of 11 [*FILED: 3] KINGS COUNTY CLERK 10/05/2018 INDEX NO. 501749/2014 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 10/11/2018 dysphagia diet (see Batash Dep. (Ex. "G") at 63, Milos Med. Chart, Ex. "K"). Based on these evaluations, Dr. Batash approved the recommendations that Mrs. Milos was to be given pureed food and nectar thick liquids, have close supervision of her oral intake, be fed only when she was alert, have reduced distractions while feeding, eat slowly with small sips of food, and remain in an upright position for at least thirty minutes after meals (see Batash Dep. (Ex. "G") at 68-69, ,· ;:, ~ ''· .... « Milos Med. Chart, Ex. "K"). ''"'·t' "~ t_ t. • -~ ?t ·'. ~.1'-.,, .e.~~ , ~ra·,,·•'" '.i< .• ~ 1: d. .Qn April,) 4, .~o l ra·f~ffyi~w'nm~e noted that '.Mr~· ~Milp~·wf;ls. exp~i:i~J)~~njJW1JtS. of . ·: · ; - ·.,I'..· '.:, . ,··· • , : ·:.· :-;•.. ·: ··,.l"·:.._.;.-t?,'/:·. ),:_::·).,,_ , ... ·•• ~:1·-~,"·:,,···>,'- :·'..'~L ··::: ~: .: productive cough and contacted Dr. Batash, who ordered lOcc ofRobitussin to be administered three times a day for seven days (see Batash Dep. (Ex. "G") at 81, Milos Med. Chart, Ex. "K"). At approximately 5:15pm, RN Ophelia Uriarte observed a CNA assist Mrs. Milos in the Fairview dining room with the consumption of her pureed meal. After looking away for a moment, the ' \ • ! ~ •. • •• CNA discovered Mrs. Milos facedown and unresponsive, with her face cyanotic (see Uriarte Dep. (Ex.''1H''l at 22,'MiiOs Med. Chart~ E,thibit "K"),~ The f'4c'Prd'indic.ates that Mrs·. Milos was ' • . • • ' " . . '1' • : . . .' • .• . ' 1 . l ~ ~ -· ... , ::.· ; :.~ ' ' ' '· ~- t,.. ! '! ; ., returned tQ her rPOffi, GP R;W~~ ~d.miniliJ~r~q, .~d 9,lJ; ~~~ C,~!~4.~ Th2 ~fyf S rePR11 i11q!9a!~~! ., ' atnO!lg other things, that Mrs. Milos was brou~t by atJ1bulcµ1ce after becoming unresponsive due to choking while eating, and she was difficult to intubate because there was food in her oral pharynx (see Batash Dep. (Ex. "G") at 93, NSUH Med. Records, Ex. "L"). Dr. Batash was notified by phone of Mrs. Milos' condition and gave the order to have her transferred to NSUHForest Hills (see Uriarte Dep. (Ex. "H'') at 177-178). There is no evidt::nce or testimony as to t ·~, !-:t • ·.i; .~.._. t r ·~ · ~): ~.~--;·~~;,_.11 (i :L~- ., .~ . ~ ~-"~..:L,J .~ :- ;,;:::. :-*..--·. ~.-~;·'. ..~ 1·; 1Jf'.' :·:, ) _~ rt ~ :.:~\ : ;_ ~ i·1.: ~ '. 1dI-:: ·:> · :: ; i;; ~ c . , ~ ;· ;_. ~ ~ :;_ :-~ ,.~ :n:~ whether Dr.>.·Batash was p~esent at Fairview wheii.fhe iriciderit'~o~cmtect. . ,. .... .. :·: ·- ,,: ....: . ---· .. . ·.. -,_.1 ~·· 1. '''.:.: · i _--~· < '•.":_~::.' '· Dr. B9-ta~h , , ... • '--· • -• • . ·,·{·'...<.)"··:<:·f-''":. • ~·i-. .-_ ' ,. 'c :::· : --~ .<; •• •• , • ' performed a physical examination of Mrs. Milos upon her arrival at NSUH' 0 ., ,. • •• j -· • • • Forest Hills on April 14, 2012 and noted that her lab results were unremarkable. A chest x-ray showed right side emphysema, and an EKG showed sinus tachycardia at 128 beats per minute (see Batash Dep. Ex. "G" at 90-91, NSUH Med. Records, Ex. "L"). Mrs. Milos was then sent to 3 3 of 11 [*FILED: 4] KINGS COUNTY CLERK 10/05/2018 NYSCEF DOC. NO. 256 INDEX NO. 501749/2014 RECEIVED NYSCEF: 10/11/2018 the ICU and was diagnosed with left-sided pneumothorax (collapsed lung) due to aspiration of food into her airway and right sided subcutaneous emphysema (chest trauma). Mrs. Milos remained unconscious and in critical condition until she died approximately 14 hours later. Issues Presented: Dr. Batash (Defendant) argues that he did not depart from good and accepted standards of medical practice as an attending physician in his treatment of Mrs. Milos. This claim is based on the expert opinion expressed in the affirmation of Howard D. Kolodny, M.D. ("Dr. Kolodny") that all of Dr. Batash's actions were within community standards of care given Mrs. Milos' medical history. In addition, Dr. Batash asserts that he was not a proximate or competent producing cause of Mrs. Milos' injuries because the diet and feeding plan created by Dr. Batash was intended to be carried out by the RNs and CNAs at Fairview. As Dr. Batash has never been an employee of Fairview, he claims he has no vicarious liability for any failure of the RNs or CNAs to carry out the diet and feeding plan. Opposing the motion, Virginia Milos (Plaintiff) argues that Dr. Batash departed from good and accepted standards of medical care by continuing Lenuta Milos' prescription of Seroqud, which was not approved for the treatment of dementia, and can cause substantial risk of choking and aspirational pneumonia, which was the actual cause ofLenuta Milos' death. Virginia Milos also contends that Dr. Batash deviated from good and accepted standards ofme4ical care by prescribing Robitussin without instructions to the RNs and/or CNAs as tq how it should be administered. 4 4 of 11 [*FILED: 5] KINGS COUNTY CLERK 10/05/2018 NYSCEF DOC. NO. 256 INDEX NO. 501749/2014 RECEIVED NYSCEF: 10/11/2018 Defendant's Contentions: In support of his motion, Dr. Batash provides the expert opinion of Dr. Kolodny that, within a reasonable degree of medical certainty, Dr. Batash did not deviate or depart from accepted standards of medical practice in the care and treatment of Mrs. Milos. Dr. Kolodny states that community standards require a physician caring for a nursing home patient to see the patient within twenty-four hours of admission to the nursing home, and once monthly thereafter unless an acute problem develops, but not if the acute problem is so severe as to require immediate transfer to the hospital (see Kolodny Aff., par. 13 (Ex. "A")). The record reflects that Dr. Batash did see Mrs. Milos within twenty-four hours of being admitted to Fairview, and thus acted within the community standards of care. Dr. Kolodny's expert opinion also supports Dr. Batash's claim that the continued prescription of Seroquel and the prescription of Robitussin was within the standard of care. It is Dr. Kolodny's opinion that the discontinuation of Seroquel would have been detrimental to Mrs. Milos because Seroquel is a long-term chronic antipsychotic medication and should be discontinued or adjusted by a psychiatric physician with specialized experience with the medication (see Kolodny Aff., par. 14). Although Dr. Batash did adjust the timing of the medication so that it would be administered at 9:00 PM instead of9:00 AM, he claims he did not feel comfortable changing the dosage without psychiatric involvement (see Batash Dep., p. 64). I11 addition, Dr. Batash states that the lOcc of Robitussin is the lowest dose typically giv~µ, he 4~s never known Robitussin to cause sleepiness, and its administration had no impact on Mrs. Milos' feeding (see Batash Dep., p. 84-85). Furthermore, Dr. Batash contends that his conduct was not the proximate cause of the c1loking injury that ultimately led to Mrs. Milos' death. This contentioµ is supported by Dr. Kolodny's statement that care plans for dysphagia patients are tyi>ically designed by attending 5 5 of 11 [*FILED: 6] KINGS COUNTY CLERK 10/05/2018 INDEX NO. 501749/2014 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 10/11/2018 physicians, such as Dr. Batash, and implemented by the RNs and CRNs. Dr. Kolodny agrees with Dr. Batash's claim that he had no vicarious responsibility for the conduct of the RNs and CRNs at Fairview, because he was not an employee of Fairview and was not responsible for supervising the RNs and CNAs. Because standards of care of an attending physician did not require Dr. Batash to be present at Fairview during Mrs. Milos's choking incident, his absence cannot be said to be a departure from the standard of care, or a proximate cause of Mrs. Milos' injury pec~use itw~ n.ot l!is duty t~ provide lifesaving measures to Mrs. Milos. ' ,- .. ., . ,. ' ,•; - - . ·'.·. , -~ ~- - . Plaintl//1!i Contention!i: . Virginia Milos &rgl.les that several material issu~s ()f ff!Cl exist regardi11g Dr. ll1ttash'~ • • ., ' • • ''• ' :, :_' ' ; • ' • "·' - ~ '• ~. ·• • : "· ":,:- • •• } ·-~ ~ ' "> " qepartme from good and excepted standm-ds of medical care~ first, Virgini'a ~iJos asserts there i~ - . . - : . -. ~ ' -- . .~ . : ,; \ ; ~ . a questipn as to whether Dr. Batash deviated from good and accepted s~darc\s of medical Cl:lf~. · ' : . . ' •, " ' . ' ' - .. , :.' : .;. - -~ -~ ; _; ,- py continuing to prescribe ~er~quel to Mrs. Milos. Not only is Seroquel "q~t Approved to treat . •, , - ' ::.-... • ,I_ 4em~ntia~r~lated psychosis/' bµt it also can cause a sµbstanlial risk of cho~ing and aspiraiional ; . ' . •. ,\ -. .:· ·., pneumonia (see Product Insert for Sero.quel, p. !(Plaintiffs Ex. ''a'.')). The recoxdstfttes that tile "·.c . , . . ; -. . . - ,,·. ·: ·.--.·.· ·'··. . ·.·;· '. 9a1-1se of Mrs. Milos' death' was' choking. Dr. Perry Starer'8. ,_.("Qr ..Staref;)'~*pertt~stirrlonJ.' .,; ..:- ·. :' .'. '. . ' ,· .:·, '.. . .._,1:.::· ... ,( ' . -·. ~ supports lhe claim that Seroq\fel is ~. ;improper treatmen~ fQr Mrs. Milps;' dementia, ari4 that tht? _, "' ' . .. - . . ' .,' >. '• •·. -: . throat 'inflammation caused by Seroquel, added to her difficu\ty ~waUpwing and increased her risk . Rf choking (se~ ~tarer Aff.. p~,. 4-5 (Plaintiff's Ex. "I")). ~. -·. "·"· ,. . '• ·' .. ~.i.<.,_ h.'., The second issqe of facl Virginlt'l Milos s~ates is whether Dr. J3arash d~yjat~4 from goop ' . ' ... ··. ·: ; ' . : ' .. .... . ~d ac,c~pteq stanctards ·of m~dical .care by prescribing R<>hitussi11..t() .Mrs. MUos without any ' ; ', ' .· •._, -· , ': ' ' ', · •, ,,,. ·.·· ,•, .. instructions for its administration. Or. Starer claims that Robitussin can cause clrowsiness, which ' ..... ". ·. · . •.· . ·.. . ;·>:3 · ; ·' · :\l''';C ., . : •· coulct mfect Mrs. Milos' a~iHty to swallow food (See Star~r l\ff.. pf»'t\. ~).pr. Star~r Autll~{. ,· · ::-.···.>\:'',:. - ·. :':'." •• > • • • '. ' - ., ~:·.:'.·· : and • •• ·-·. ··•./ ::·,:_.··:··__·._·:;·f··~,_·,__ asserts that, because Dr. Batash <lid not instruct the RNs :··::·. CRNs. that the Rohlttissi~-sh~uld ---·'· ·:··. ··>··: . ., .,,,,· ._.:_ . · :,. '·._•: npt •, - >' :·' : . • .---· .~-t-' 6 6 of 11 -;,·"·:~·~.-; -~·~ ~\~ :(~~ [*FILED: 7] KINGS COUNTY CLERK 10/05/2018 INDEX NO. 501749/2014 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 10/11/2018 be administered close to Mrs. Milos' mealtime and did not evaluate Mrs. Milos' reaction to the Robitussin before allowing her to be fed a meal, Dr. Batash departed from good and accepted medical standards of care (see Starer Aff., para. 9). It is these two contended departures from good and accepted medical standards of care that Virginia Milos claims were the proximate cause of Mrs. Milos' injury and ultimate death. Furthermore, it is Dr. Starer's expert opinion that not only did Dr. Batash deviate from good and &ccepted medic?.l sti;mdar4s of care, but those deviations als? directly contributed to Mrs. Milos' , : • '· ' . . , •• J· •• ·- I' ,. : ! • ·, r. . i .~· '· '· . , . .. lJiscusslon: ·--'-. -··. . :- '' 011 a motion fqr sumwary judgment seeking *l qismi~~~l of~· medical l1lalpractice p~u~e pf .', , t . . ; .. . . . ' . , . ' - : -. ' '..• .: ; . . ' ' . :· • ' .' ., ~ .. - . ' ~ ·. ' ' . ~wtion, q defend1µ1t mus~ make a primi:i facie showing ~ither that then~ wf;l.s µo·q~ptµWre from C. ' .. ' I < '. , - • ~ood : ; • ' ' ! ·, • ~· -', ' • , - • •' • , ' , • . ' and accepted medical practice, or,, iftllere wi:is a depflftllre, that the departqr~ ~~~not the ~ayley. s'eton H~s~:: .1.12 t\1)3d Ql 7, 918 [2"4 Dept. 2013]; Giacinta v. Shapiro. 151AD3d1029,l030[l~1·7]; Bri~ley ~.Nassau< . . " proximate cause of plaintiffs alleged injuries (Williams y. ::. . . ; . - ; ·: ~ '- .,. ' . , 4 Dept. 2014]). Thus, on p mo.tion for s~~ry judgment, Health Care Corp., 120 AD3d 1287 [2" ·::·- ·.,. . .. :; . ....... .,,_... . .. . ·.·· __ -. . \ :~:·· '. ;- ·:~:.--··. ·'~· ~--:,, ' the ~~fenqant has the iJ1itial burqe11' of estabUshing th~ ~~senFf~f ·a~y. ~ep~~r~ 'fr?~ ~9ocl ~~ .: accepted practice or that th~ .plflil1tiff was not injured by ~y 4~p~rt~i6 ·'cs~~ie~adQ~ll v: 45 .- ~o firikl~o. AP~4 572 [2~d Dept. 2007,)). "~n order to sustain this ;ur4~~~ the ~efe~d~~ i~pt11; r~~uired . . - '·'; . " { ' - . - -··. ·. ·. - address aµd rebut the specific alleg~tions of malpractice set fc,irth i1l the pltlintifr s ppmplaillt . - . . . ~: and pill ofparticulars"@hi1P v. Dounpashldn, 123 AO~d ~-62, . . ' ~64 [20i4p. · - .; . :- ,- ; -' .· Qqce the defenQtl!lt h~S maq~ S,UClt a showing, the burq~µ ~\Ufts ~p t}J~ phdntiff t9 submit ""> ,: : ' ' .: ev\dentiacy facts or materials to rebut the prima facie ;snowing made by t~e 4~fcmclittlt. ·so as. t<l _ ' ',· ;,. ,':,' : • ·-·~. ,·. ·'_, ' ·:.; \""' .; ,·."; ·- 0'. , ''' \. ,',i·l.. ' . _" ',· ' .\.' . • . '•' ~ •'_.: _.,_.. ~~ •:;<'_, ... ' C •:.- -·-:: '··-":' ',: I ,·-.- .'~.> ·",<·.·f/~/~--~~_,·,:~-.!':"f}:-.:.~:.:-'.··: --~~~·',.'.""·;.-:,<·.i''~ .f;~(,•<.;_ denionsttite the existence of a triable issue of fact (see Fritz v. Burman, l07 AD3d 936, 940 [2°4 · 7 7 of 11 [*FILED: 8] KINGS COUNTY CLERK 10/05/2018 INDEX NO. 501749/2014 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 10/11/2018 Dept. 2013]; Brinkley v. Nassau Health Care Corp., 120 AD3d at 1287). In order to prevail on a claim for medical malpractice, "expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause" (Nicholas v. Stammer, 49 AD3d 832, 833 [2008]). Here, this Court is presented with a material question of fact of whether Dr. Zvi Batash deviated or departed from accepted medical practice while caring for the decedent, Lenuta Milos, and if so, whether Dr. Batash's departure from accepted medical practice was the proximate cause of the injuries that occurred. Defendant, Dr. }3atash, in setting forth his prima facie ,~gutp.~l'lt for, summary judgment, 1- - ·.' ' ~ ; ; , ;, ' • '·:· ,· has offered the expert opinion of Dr. Howard D. Kolodny, an endocrinology physician, who is ~oard Certified in Internal Medicine .. Dr. Kolodny maintainedcthat~ based upon his review of ·-. ' the medical records from North Shore University Hospital Manhasset, the f airyie\-V Nursing Care . . ' ·.·., - -- Center and North Shore University Hospital-Forest Hills, that to a reasonabl~ degree of medicaJ. :·- ' > • • - ·.' • -- .. ' • •• ·; certainty, the care and treatment rendered to the decedent, Lenuta Milos, was at":...· all'\ times in : . : ''.,· .. . : ' ~cordance ~th good an4 accepted medical practice. • ' • ·\:, __ ~ •• . Dr. Kologpy opi~~a that, notpiri~ th~t Dr. - .1 ,. '. •• ,. • • "" ··': .. - ', ., ·• ' , ; ~ -~ :f3atash did or failed to do was the competent producing cause of any of decedent's injuries thtit were alleged in this action. Dr. Batash, as decedent's attending physician at North Hospital,- did . Shore University . - -~ ' '-<."' ' ,.:~ order a GI evaluation, urology and oncology evaluations for a bladder m~~~ foiind ·6n a CT s(}4n, •. :·-·. : . 'J /-.-·._,. . ,{· -. - , :. ·' .-"::. . :_, . ' ~;, and nutritional and. swallowing evaluations to determine an appropriate dysphagia diet. As to . . . ' ' ' ,__. -~ . ~ ..,·:1 the care rendered at Fairview Nursing Care Center, Dr. Kolochly maintains ... ~. . ... that Dr. }}flt.ash h~'. :.. -,.:"1~:. ~~ ' ',; - ,.. ~ ~.~ ·.. . .. '' '- . ' . ~~ Jnet the community standards with respect to a doctor caring fqr a nursing home p~tfo~l ~)' -~e.einu the patient within the initi1:1.l twenty-four hour period of her l\4lllis~ipn to the nqrsing ~are fi;ipili~ ·, . _.·. AA4 once monthly ther~,after. .. . . ._ >._)~·:{S:\:.~'.~_:':··:_·:_,_ . ·\_'. . · f ••• ·.,~ :.~,-_ : · ·:_.:·~ .: •• .. · :· · 8 8 of 11 ;••. ·- ·:.!:·~·:·:~~:,;_ '> · · .· ._' . . . ,._J(;:f·;_ _ · · · [*FILED: 9] KINGS COUNTY CLERK 10/05/2018 INDEX NO. 501749/2014 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 10/11/2018 Dr. Kolodny opined that Dr. Batash by prescribing Robitussin (lOcc-3 times daily, which was characterized as a minimal dosage), after being informed of Mrs. Milos' cough, was appropriate, given the symptoms prescribed by the RN as to the decedent's physical condition. Dr. Kolodny further maintained that the Robitussin prescribed did not contain a narcotic, and thus, it would not cause drowsiness, nor would it have had an impact on the decedent's feedings. As to the determination by Dr. Batash that the decedent should continue to take Seroquel, that too was appropriate since it was initially prescribed by the primary care physici~n ,~!1~ the . Dt.· '3atasn ~rpperly detennineq stwiclar4 of c&re was for the p1:1Ji~nt to continue the medic~t,lo~. sin~e ·s~roque• i~ a.~~8 -~~ ~~onic ·antipsych()tic.· m~4ic~ticin. it. -~~~-~;~;~r '~<l:aer~lt~th~ . . -· . ·,. ,,.;-- . '· ;'· , tha; ~~, ·:":}~~:.'Fr~~~~~; opinion of an expert in psychotiQ medication )Jefore discontinuing pr adjusting the 4Qsage. Dr. • • • ' - ,· • - • : • • • • • • - • ' •• 0 ._ ~ -: - - . - J(qlP9llY fun}lef opinep tllllt lfie 4~~~rmi1l~tion by Dr: l3~tas,9 ~p ch~ge ~qe timipg Pf '. • .... '' . . • ' • • . • : ; ' " ,• ~ -· : . •· • :· :·· : . ' I ad1llinistering Seroquel would not haye negatively impacted the ~bility of J.,eµuta Milo~ t~ •• - . -- . • <. ·' ·: ·• .•· '-·,. •. • ·._ - • ' •· ,: •• : ~w~How. further, at Fairview Nursing Care Center, Dr. ~J;lt~s~ orde,red 'l p~yc~iafric evalu~tipn of J.,epµta MHqs, and pr. l{.olodny asserts that. a plan of care fQr ~~e qysp}lagia Em44P appropti~t~ 4iet was implemen~d, but its implement1:ition was not the', resp~~ipilitY uf Dr..·· Ba~_h, .b.iit ratber ' . , .. .... :·· _·,·:··' .· ,; ,. ':· ·, .. ,. .. :f·· .~-' wa~ th~t :,, ,'•' ~ -~-_. .;_·:~·i· pft4e staff at fairyiew. ,_ ·; . . ' This 4efen4tmt set forth his prima facie )lurden pf establishing t4at . pourt finds that the . . ' . . . . . . ·. Qr. l3attish llf\d n~ither departeq frolll goq4 and accepte4 me~ical practi~e or that tµe plaiptifiliad •. . .. • ; ' ' ·. : • • : , ;' .. ' • f ~ . • . . ' .- • '. . '' establish the existence of a triable issue of fact. ._ c-_.__ : ···_· ·,·_ .. - .• . ·- ' ~. ··_;. ' . .. ~ , .: . ~ . • : - ;'.. : .· • . ' . • _.· . ~ I ' .. • . . ' ·. . . ·- . - : - - ~ .. .. •' pffers tile expert medical opipfp,q o~ Qr. J>erry Starer. J)r. St~er is aJ~~a,rd-cerHfie4 geti~trician . '• • ' ' ' -· '• .. . • '- •"~l->~,~·· ,: AA4 ilas a private practice in both Jnterit~l Medicin~i and Qeri~trics. -· . , -. ~ ·- ·;-·:~. >" ,,,···. ·;· . "·'· .,. ,· I pr. Starer, in gff7png ~is~' ;; . , -.; ' opinion; reviewed the medical rec~rds of the decedent frorrLNorth Sho~e Hospital, tµe F~il'\'iew . 9 9 of 11 [*FILED: 10] KINGS COUNTY CLERK 10/05/2018 NYSCEF DOC. NO. 256 INDEX NO. 501749/2014 RECEIVED NYSCEF: 10/11/2018 Nursing Care Center, EMS, as well as the deposition transcripts of both Dr. Batash and Virginia Milos. Dr. Starer opined that Dr. Batash deviated from the standard of care by his determination that the decedent continue to take Seroquel. Dr. Starer maintains that it was inappropriate for the patient to take Seroquel since it is an anti-psychotic drug that is used for treating schizophrenia and bipolar disorder and Ms. Milos was not suffering from either schizophrenia or a bipolar disorder. Seroquel is known to cause pharyngitis (inflammation to the back of the throat) which can lead to difficulty swallowing. Since Mrs. Milos was already suffering from dysphasia, she was considered a risk for choking and taking Seroquel put her at an increased risk for choking. Dr. Starer further opined that the determination by Dr. Batash to change the time of the day for Mrs. Milos to take Seroquel would not have helped the patient as the time was not relevant since Seroquel has a twenty-four hour affect upon the body. Dr. Starer further opined that the failure of Dr. Batash to provide instructions to the nursing staff of Fairview Nursing Care Center regarding administering Robitussin was a departure from good and accepted medical practice. Dr. Batash should have instructed the nurses not to administer Robitussin close to the patient's meal time since drowsiness is a commonly known side effect of Robitussin, and since she had dysphagia, the patient should have been fed only when she was alert. This Court finds that in opposition to defendant's motion, plaintiff raised an issue of fact with the submission of an expert opinion which offers detailed opinions as to the treatment rendered which conflicts with defendants' expert opinions, thereby precluding summary judgment. The plaintiff has raised two issues of fact regarding Dr. Batash's deviation from good and accepted standards of medical care. The first is the decision by Dr. Batash to continue to prescribe Seroquel to Mrs. Milos. The plaintiff asserts that Dr. Batash was aware that Seroquel 10 10 of 11 [*FILED: 11] KINGS COUNTY CLERK 10/05/2018 INDEX NO. 501749/2014 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 10/11/2018 was a psychiatric medication and needed evaluation by a psychiatric expert. Yet while Dr. Batash was able to arrange for a nutritional and speech therapy evaluation, a psychiatric evaluation was not conducted in the crucial period between April 11 and April 14, and Ms. Milos continued to take the medication. The second issue pertains to the decision by Dr. Batash to prescribe Robitussin to Mrs. Milos without providing instructions to either the RNs or the CRN s who had the responsibility of administering the medication . . I1J~:w~Il.~ettleq)pat ~here partJ~~ ~~a medical malpractice action offer conflicting expert . . - .._· . -_ • . :"- - . - ·. '.--~ ~ -"L:· ' ,. . ,,,, ·~ .-·o: ·, , :; ·- "' , " ,. • . ... ,. ~,Pinions on the issll" ofmatpfl!CllC~ and causation, summar)' iutJ~~l!t.oul!!i! tq ~ qenied l\'»m~ev,:,Feu, 23. t\W~,~.'1: s:i 9,l2j,~· 2oos1; ~V'. ~~~N·l~~~.~i,!;f7~Jr J)ept. 2914])~ ·:. With regal°d -~~ pro}(im~te' c,~µse, where _paus~tion is o1Wil ·~ diffj~µl~. isiiQ~~: ~ ·...· .-~ ... '. ' / -'· - . ·.-. . ; . ' ' ' " . ' i. ._,. .. .._..... . ,•. ·.;. .:,--';:· . . . plaintiff need do no more thaµ pffer sufficient' evidence frpm ~which 1ueas~nable person might ' • - • • •• - •• '· • ' - - \,;· .. • • • • • • ' : ,., ,.: ,_,. :- "; • ~ - : ·' '-· - > ·." cqnclude that it was more prq~L}ple th~pot the injµry w~s ~aused byt4e qef~nctant(s~e Jghlls<m .~ ---,··' ·:-::· >-, .. :_; ·:. ,· - :. _.··:"'~/ ---. _. -·.·· ', ' . .--..~_''./'_ ~·~_.:: ....... ; -:•-;--·'\\\•(' "_':_ y. Jamaict!Hosp. Meg. Ctr, 2,1. AD3d. 8~1,'~83[2005]). ... _. ,._. - ; ·~\,/'. _(·. _;,_"_.<·:\', .. "\'' ·.· __- ·•· ·· Conclusion: "" '. .-· ."'' Th~.m~tion by defeµqant, Zyfijtit~ll. M.D. ; . '· - ' . - . . for an orper gr~Hn~ ~}:lrilrnary)µd8m~nt, ~d . . ·,.,, : ·..· . .. .·--;:.. . . ' ~ldismi~~~J ·qfthis.action is denied. ; .- ' ~· ·- ' ': '., " ·). _;. :· - ~: -.- .·i~··:.~.· · < . "-,._ ·. •••.· .·.' . :.;; •' .·' .·. · .······:..: :r:- g Jhis Sh/.llJ Constitute the ~~pjsion and order pf this Co,µrt. . ~ ~;. ·~$2' ~Wt11/m Go~. a~marq Graham,ustic6~; J)ated: Qctober 2, 201~ ·., ~fppldyn, Ne~·ypr,~ · J. fi~pr~m~ pq1Jfl, !4~8~ coUl1tr : ·.·.;_LE--~- 11 11 of 11

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