Hunt v Zeitlan

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Hunt v Zeitlan 2018 NY Slip Op 34122(U) April 30, 2018 Supreme Court, Westchester County Docket Number: Index No. 70264/2014 Judge: William J. Giacomo 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] WESTCHESTER COUNTY CLERK 05/01/2018 11:28 AM NYSCEF DOC. NO. 102 INDEX NO. 70264/2014 RECEIVED NYSCEF: 05/01/2018 To commence commence the the statutory statutory time time period for for appeals appeals as of of right right period (CPLR 5513 [a]), you you are advised advised of this this order, to serve serve a copy copy of order, with with notice of entry, upon upon all parties. parties. notice of entry, SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. HON. WILLIAM J. GIACOMO, GIACOMO, J.S.C. J.S.C. PRESENT: WILLIAM~- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- X~ JEREMIAH HUNT, as ADMINISTRATOR of the ESTATE JEREMIAH HUNT, ADMINISTRATOR of the ESTATE MONICA HUNT, HUNT, Deceased, Deceased, and JEREMIAH JEREMIAH HUNT, HUNT, OF MONICA Individually, Individually, Plaintiffs, Plaintiffs, Inde~ No. 70264/2014 70264/2014 Index - against-against- DECISION & ORDER ORDER DECISION GARY A. ZEITLAN, PLAINS MEDICAL GARY ZEITLAN, WHITE WHITE PLAINS MEDICAL ASSOCIATES, P.C.,. . WHITE WHITE PLAINS HOSPITAL ASSOCIATES, P.C., PLAINS HOSPITAL MEDICAL CENTER, MICHAEL MALOTZ SKILLED MEDICAL CENTER, MICHAEL MALOTZ SKILLED NURSING PAVILION, JOHN'S RIVERSIDE NURSING PAVILION, ST. JOHN'S RIVERSIDE HOSPITAL and VISITING NURSE SERVICES SERVICES HOSPITAL VISITING NURSE OF WESTCHESTER, WESTCHESTER, INC., Defendants. Defendants. -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- X~ action to recover recover damages damages for wrongful death death as a result result of of medical medical In this action for wrongful malpractice, the defendants Gary Gary A. Zeitlan, Zeitlan, White White Plains Plains Medical Medical Associates Associates P.C., and malpractice, the defendants White Plains Hospital Hospital Medical Medical Center, Center, move move for for summary pursuant to CPLR CPLR White Plains summary judgment, judgment, pursuant 3212, dismissing dismissing the the complaint complaint insofar insofar as asserted asserted against against them: 3212, them: Papers Considered Considered Papers Notice of Motion/Affirmation Motion/Affirmation of Leland Leland N. Garbus, Garbus, 1. Notice of Esq.lAffirmation of of Alan Alan A. Pollock, Pollock, M.D./Affidavit M.D.lAffidavit of of Anne Anne Esq./Affirmation Walsh, N.P/E~hibits A-M; Walsh, N.P/Exhibits Clarke, Esq./Exhibit Esq.lE~hibit 1/Affirmation 1/Affirmation of 2. Affirmation Affirmation of Keith J. Clarke, Perry Starer, Starer, M.D./Exhibits M.D.lE~hibits 1-5; Perry Reply Affirmation Affirmation of of Leland Leland N. Garbus, Garbus, Esq. 3. Reply Factual and Procedural Procedural Background Background Factual Plaintiffs commenced commenced this this action action seeking seeking damages damages for negligence, medical medical Plaintiffs for negligence, malpractice, and wrongful wrongful death, death, against against Dr. Zeitlan, White Plains Plains Medical Medical Associates, Zeitlan, White Associates, malpractice, White Plains Plains Hospital Hospital Medical Medical Center, Center, Michael Michael Maletz Malotz Skilled Skilled Nursing Nursing Pavilion, Pavilion, St. P.C., White John's Riverside Hospital, Hospital, and Visiting Nurse Services Services of Westchester, John's Riverside Visiting Nurse Westchester, Inc. 1 of 5 [*FILED: 2] WESTCHESTER COUNTY CLERK 05/01/2018 11:28 AM NYSCEF DOC. NO. 102 INDEX NO. 70264/2014 RECEIVED NYSCEF: 05/01/2018 Hunt v. Zeitlan, Index No. 70264/2014 70264/2014 Zeitlan, Index Hunt In an order order dated dated August August 17, 2015, 2015, this Court (Giacomo, (Giacomo, J.) granted granted the unopposed unopposed this Court motion of the defendant defendant Visiting Nurse Services Services of complaint dismiss the complaint Westchester to dismiss of Westchester Visiting Nurse motion insofar as asserted asserted against against it. insofar The decedent, Monica Monica Hunt, was a patient patient at White Plains Hospital Hospital between between May May White Plains The decedent, White Plains 4,2012, May 31, 31,2012. attending physician physician at White Plains Zeitlan was the attending 2012. Dr. Zeitlan 2012, and May 4, Skilled Malotz Hospital. She was discharged from White Plains Hospital Michael Malotz Skilled Michael to was discharged from White Plains Hospital Hospital. She suffered Nursing Pavilion Pavilion and thereafter, John's Riverside Riverside Hospital. Hospital. She suffered admitted to St. John's thereafter, admitted Nursing cardiac arrest arrest on August August 1, 2012. 2012. Plaintiffs Plaintiffs allege allege that due to the the negligence negligence and that due cardiac severe and departure accepted medical medical and nursing nursing standards, suffered severe decedent suffered standards, the decedent departure of accepted permanent personal personal injuries, injuries, including including the development, progression, and deterioration deterioration development, progression, permanent of mobility, pressure ulcers ulcers to the the sacrum buttocks, disfigurement, disfigurement, loss loss of mobility, pain and sacrum and buttocks, of pressure suffering, and death. death. suffering, for Plains Medical Medical Associates, White Plains Plains Hospital Hospital move move for Associates, and White White Plains Zeitlan, White Dr. Zeitlan, asserted insofar as asserted summary pursuant to CPLR CPLR 3212, complaint insofar the complaint dismissing the 3212, dismissing judgment, pursuant summary judgment, coof coagainst them. Defendants argue argue that decedent had a history history of 72-year-old decedent the 72-year-old that the them. Defendants against ulcers. morbidities including including multiple multiple sclerosis sclerosis and paraplegia paraplegia and a history history of of decubitus decubitus ulcers. morbidities Defendants submit submit the affirmation affirmation of Alan Pollock, M.D., M.D., board board certified certified in Alan A. Pollock, Defendants degree with a reasonable Internal Medicine Medicine and Infectious Infectious Diseases. Diseases. Dr. Pollock Pollock opines, opines, with reasonable degree Internal good of standards from depart not of medical certainty, that the moving defendants did depart from standards of defendants moving the that of medical certainty, accepted medical medical practice practice nor nor did any care care and treatment provided by the Hospital Hospital treatment provided and accepted cause or contribute contribute to any alleged alleged injury, injury, including including death. death. Zeitlan cause or Dr. Zeitlan noted on the were noted Pollock noted noted that that the decubitus ulcers pre-existed pre-existed and were decubitus ulcers Dr. Pollock while developed while decedent's admission to White Hospital. All the decubitus ulcers developed decubitus ulcers Plains Hospital. White Plains decedent's admission interventions plaintiff was at home and were appropriately managed various interventions various with managed appropriately were home plaintiff was throughout her hospital hospital stay. The also suffered suffered multiple multiple comorbidities, comorbidities, including including decedent also The decedent throughout decubitus development of lower extremity extremity paralysis, paralysis, that made her predisposed predisposed to the development of decubitus that made lower declining health, was in declining she was ulcers prior prior to hospitalization. hospitalization. At the her admission, admission, she health, of her time of the time ulcers suffer any which was tacitly acknowledged by the consent. The decedent did not suffer The decedent the DNR consent. tacitly acknowledged which condition any discharged critical crisis while a patient at the Hospital and was discharged with any condition not was the Hospital critical crisis while patient from suffer from decedent did not posing an imminent imminent threat Pollock opines not suffer the decedent that the opines that threat to life. Dr. Pollock posing with 2012, with was discharged any systemic infection while Hospital. She discharged on May May 31, 2012, She was while at the Hospital. systemic infection any clearly and lower extremity wounds that prompted admission, was treated, clearly treated, was admission, her promptedhad that lower extremity wounds surgical care. improved due due to the good good and appropriate appropriate medical medical and surgical care. improved sacral region and sacral Pollock opined that the ulcerations ulcerations involving involving the buttocks and region the buttocks opined that Dr. Pollock were addressed and did not change change to any any medically medically significant significant degree. discharge, After discharge, degree. After were addressed the decedent's care care was was assumed assumed by a skilled skilled nursing nursing facility physicians. She their physicians. facility and their the decedent's was admitted and discharged from the hospital on two further occasions, which were were both which occasions, further hospital discharged from was admitted prior to her cardiac arrest two months later. Dr. Pollock Pollock states because no autopsy autopsy that because states that two months cardiac arrest prior was performed, there objective, scientific basis to assert death decedent's death the decedent's that the assert that scientific basis there is no objective, was performed, treatment August 1, 2012, 2012, was was contributed contributed to caused by any any infection infection or by care care or treatment to. or caused on August 22 2 of 5 [*FILED: 3] WESTCHESTER COUNTY CLERK 05/01/2018 11:28 AM NYSCEF DOC. NO. 102 INDEX NO. 70264/2014 RECEIVED NYSCEF: 05/01/2018 Hunt v. Zeitlan, Zeitlan, Index Index No. 70264/2014 70264/2014 Hunt the that the opines that rendered while patient at White White Plains Plains Hospital. Hospital. Dr. Pollock Pollock opines was a patient while she was rendered defendants did not depart depart from good and accepted accepted standards standards of medical medical practice practice and that that from good defendants their care care of of treatment treatment of the the decedent decedent did not cause cause any any alleged alleged injury. injury. their Walsh, N.P. Ms. Walsh Defendants also also submit submit the expert affidavit affidavit of Anne Anne Walsh, Walsh attests attests the expert Defendants that the the nursing nursing care care at White White Plains Plains Hospital Hospital did not cause cause decedent decedent to sustain sustain decubitus decubitus that the the ulcers and did not cause cause any any of alleged injuries, injuries, including including death. death. At the time time the of her alleged ulcers decedent was admitted to the Hospital Hospital on May May 4, 2012, 2012, she she had beer:i been restricted restricted to a was admitted decedent wheelchair for for over over twenty twenty years years and had a long history history of of documented documented decubitus decubitus ulcers. ulcers. wheelchair Hospital. the to admission her At least least seven seven decubitus decubitus ulcers ulcers were the Hospital. documented upon her admission were documented and turning including initiated Proper nursing interventions were immediately initiated including turning and reimmediately were interventions nursing Proper positioning. The The ulcers ulcers on her her legs legs presented presented with with necrotic necrotic tissue tissue which which required required surgical surgical positioning. Hospital the at care nursing the times, all care for debridement. Ms. Walsh states that times, the nursing care the Hospital at that Walsh states care for debridement. daily, she assessed daily, met the standard standard of of care. The was assessed she was was turned turned and decedent's skin was The decedent's met re-positioned regularly regularly as consistent consistent with with the the standard standard of of care, care, and received received a specialty specialty re-positioned She improved. had condition the mattress. At the time was approved for discharge, condition improved. discharge, for approved was she time mattress. At was discharged skilled nursing nursing facility instructions to continue continue antibiotics antibiotics and to with instructions facility with discharged to a skilled was center. care wound follow with Dr. Zeitlin White Plains Plains Hospital Hospital wound care center. The The decedent's decedent's the White Zeitlin and the follow up with admission. hospital her wounds ulcers worsen during hospital admission. during worsen not did ulcers and wounds Walsh opines opines that that there there were were no departures departures from from good good and accepted accepted nursing nursing Ms. Walsh exacerbation any caused or region sacral the practice that caused any of wounds sacral region caused any exacerbation in wounds the of any practice that caused during the pressure of the worsening of of wounds. There medically significant significant worsening pressure ulcers ulcers during was no medically There was of the wounds. for difficult staging precise making her admission. The sacral wounds were all recurrent making precise staging difficult for recurrent her admission. The sacral wounds were was deteriorating the nursing nursing staff. Ms. Walsh states that that as the decedent's decedent's health health was deteriorating after after Walsh states the Kennedy develop Kennedy she was discharge, despite proper medical medical care, she was beginning beginning to develop despite proper her discharge, not preventable are and dying body the of Terminal Ulcers which are part of the process the body dying and preventable process the part of Terminal Ulcers which White Plains nursing or medical medical interventions. interventions. Ms. Walsh Walsh opines opines that that White Plains Hospital Hospital met met the by nursing Hospital the by standard of of care care at all times times and there there were were no acts or omissions omissions the Hospital that that standard injuries. alleged caused the alleged injuries. caused the failed to demonstrate plaintiffs argue argue that that the defendants demonstrate entitlement entitlement defendants failed opposition, plaintiffs In opposition, deviated defendants whether as exist fact to summary summary judgment and that issues of fact exist to whether defendants deviated of that issues judgment from the standard standard of of care in negligently negligently and carelessly carelessly allowing allowing the the decedent decedent to sustain sustain from the although pressure ulcers ulcers and failing failing to properly properly treat treat the ulcers. ulcers. Plaintiffs Plaintiffs argue argue that that although the pressure the negligent decedent was was admitted admitted to the Hospital with with a number number of of pressure pressure ulcers, ulcers, the negligent the Hospital decedent care and treatment she received received resulted resulted in the development development of a new new buttock/sacral buttock/sacral ulcer ulcer treatment she care the worsening worsening of of an existing existing buttock/sacral buttock/sacral ulcer. ulcer. and the Plaintiff submits submits the affirmation affirmation of of Perry Perry Starer, Starer, M.D., board board certified certified in Internal Internal Plaintiff medical of degree of medical Medicine and Geriatric Geriatric Medicine. Medicine. Dr. Starer Starer opined, opined, with reasonable degree with a reasonable Medicine and nursing medical of certainty, that defendants departed from accepted standards of medical nursing care, standards accepted from certainty, that defendants departed failed provide adequate adequate and appropriate appropriate medical medical and nursing nursing care, care, and that that such such failed to provide and progression, development, departures were a substantial factor causing the development, progression, the causing in substantial factor departures were deterioration pressure ulcers ulcers to the the sacrum buttocks. More9ver, Moreover, he opined opined that that sacrum and buttocks. deterioration of pressure 3 3 of 5 [*FILED: 4] WESTCHESTER COUNTY CLERK 05/01/2018 11:28 AM NYSCEF DOC. NO. 102 INDEX NO. 70264/2014 RECEIVED NYSCEF: 05/01/2018 Hunt v. Zeitlan, Index No. 70264/2014 70264/2014 Zeitlan, Index Hunt the defendant that the violations the Hospital's Hospital's own policies policies and procedures procedures demonstrate demonstrate that defendant of the violations of that a reasonably hospital failed failed to perform perform acts acts that duty to perform perform and that reasonably prudent prudent that it had a duty hospital the circumstances. person, including including nurses nurses and aides, aides, would performed under under the circumstances. He would have performed person, due to any underlying also opines opines that decedent's ulcers ulcers were were not unavoidable unavoidable due underlying the decedent's that the also medical condition. condition. medical two According Starer, hospital hospital protocol protocol required required repositioning repositioning at least every two least every According to Dr. Starer, turned and not turned was not decedent was hours. Despite Despite this this protocol, protocol, Dr. Starer Starer states that the decedent states that hours. was closer positioned at least least every every two two hours, hours, rather, it was closer to every every four four hours. hours. Dr. Starer Starer positioned 2012, opines that that the Hospital Hospital departed departed from from accepted accepted medical medical practice practice from from May May 4, 2012, opines appropriate through May 31, 2012, 2012, when failed to turn and position position the decedent decedent at appropriate when it failed through May buttock sided right intervals, and that such failure resulted in the development a new right sided buttock new of development that such failure resulted intervals, stage II ulcer stage Ill III ulcer ulcer which documented on May 31, 2012. 2012. Moreover, Moreover, the stage ulcer on was documented which was stage further Starer further buttock on admission admission worsened worsened to a deep tissue injury. injury. Dr. Starer deep tissue sided buttock the left sided opines decedent's medical medical conditions, conditions, including including multiple multiple sclerosis, paraplegia, sclerosis, paraplegia, that the decedent's opines that the pressure of the and diabetes mellitus, did not make make the pressure worsening of development and worsening the development diabetes mellitus, ulcers unavoidable. unavoidable. ulcers Discussion Discussion the that the order to establish establish liability liability for medical malpractice, malpractice, a plaintiff plaintiff must must prove prove that for medical "In order that defendant deviated or departed from accepted community standards of practice that and practice of standards community departed from accepted defendant deviated Merriam, 133 such departure departure was proximate cause cause of the plaintiff's plaintiffs injuries" injuries" (Leavy (Leavy v Merriam, was a proximate such_ AD3d Dept 2015]). physician moving moving for summary judgment medical judgment in a medical for summary 2015]). A physician 637 [2d Dept AD3d 636, 637 from departure from malpractice action action must must establish, establish, prima prima facie, either that was no departure there was that there facie, either malpractice was not departure was accepted standards of medical practice, practice, or that that any any alleged alleged departure of medical community standards accepted community 623, AD3d a proximate proximate cause cause of of the the plaintiff's plaintiffs injuries injuries (see Aronov v Soukkary, AD3d 623, 624 104 Aronov Soukkary, Dept 2013]; 2013]; DiGeronimo DiGeronimo v Fuchs, Fuchs, 101 AD3d Dept 2012)). 2012]). Once Once a AD3d 933, 936 [2d Dept [2d Dept defendant has made made such such a showing, showing, the burden burden shifts plaintiff to "submit "submit shifts to the plaintiff defendant physician" defendant the by evidentiary facts or materials to rebut prima facie showing the defendant physician" showing facie prima the rebut materials facts evidentiary (Alvarez v Prospect Prospect Hosp., Hasp., 68 NY2d NY2d 320,324 320, 324 [19861). [1986]). (Alvarez was not she was plaintiff cannot cannot rebut rebut a defendant defendant physician's physician's showing that he or she not showing that "A plaintiff affidavit negligent and defeat a motion motion for summary judgment offering an expert's expert's affidavit judgment by offering for summary and defeat negligent and. containing general allegations medical malpractice malpractice which conclusory in nature nature and. which are conclusory of medical allegations of containing general medical of elements the establish to unsupported by competent evidence tending establish the elements of medical tending evidence competent unsupported Alvarez malpractice" ((Shectman 3d 848, 849 [2nd Dept Dept 2009]; 2009]; see also also Alvarez AD3d Shectman v Wilson, 68 AD malpractice" Prospect Hasp., 324-325; Shahid Shahid v New New York City City Health Health & Hasps. Hosps. Corp., Hosp., 68 NY2d at 324-325; v Prospect nd Dept 47 AD3d Dept 2008]). 2008]). AD3d 800, 801 [2 nd judgment as a defendants established established their their prima prima facie entitlement to judgment facie entitlement Here, the defendants submitting by matter of law dismissing the complaint insofar asserted against them submitting the them against asserted as matter law dismissing the complaint insofar affirmation of their moving defendants not deviate deviate or depart depart defendants did not that the moving opined that who opined expert who their expert affirmation of cause from accepted medical medical practice practice and that even if they they had, there proximate cause there is no proximate that even from accepted between the alleged alleged departure departure and the injuries. injuries. between 4 4 of 5 [*FILED: 5] WESTCHESTER COUNTY CLERK 05/01/2018 11:28 AM NYSCEF DOC. NO. 102 INDEX NO. 70264/2014 RECEIVED NYSCEF: 05/01/2018 Hunt v. Zeitlan, Zeitlan, Index Index No. 70264/2014 70264/2014 Hunt opposition, however, however, the the plaintiffs plaintiffs raised raised a triable triable issue issue of fact, through through the In opposition, submission of an expert expert affidavit affidavit of Dr. Starer, Starer, who who opined opined that that defendants defendants departed departed from from submission accepted medical medical standards standards in failing failing to reposition reposition the the decedent decedent every every two two hours hours which which accepted proximate cause cause of the the development development of a new new Stage Stage Ill III right•sided right-sided sacral sacral pressure pressure was the proximate ulcer and the deterioration deterioration of the left sacral sacral pressure pressure ulcer ulcer from from Stage Stage II to a deep deep tissue tissue ulcer injury. Summary judgment may Summary judgment may not be awarded awarded in a medical medical malpractice malpractice action action where where parties adduce adduce conflicting conflicting opinions opinions of medical medical experts experts (see (see McKenzie McKenzie v Clarke, Clarke, 77 the parties AD3d 637, 638 [2d Dept Dept 2010]; 2010]; Shields Shields v Baktidy, Baktidy, 11 11 AD3d AD3d 671, 671, 672 672 [2d Dept Dept 2004]; 2004); AD3d Barbuto v Winthrop Winthrop Univ. Hosp., Hasp., 305 AD2d AD2d 623,624 623, 624 [2d Dept Dept 2003]). 2003)). Barbuto However, to the the extent extent that that the complaint complaint asserts asserts a wrongful death cause cause of action action However, wrongful death against Dr. Zeitlan, Zeitlan, White White Plains Plains Medical Medical Associates P.C., and White White Plains Plains Hospital Hospital against Associates P.C., Medical Center, Center, that that cause cause of action action is dismissed. dismissed. The The affidavit affidavit of Dr. Starer Starer fails fails to raise Medical issue of of fact fact that that the alleged alleged departures departures in failing failing to reposition reposition the decedent decedent every every two two an issue hours was was the the proximate proximate cause cause of her her cardiac cardiac arrest. arrest. hours Accordingly, the the motion motion of the defendants defendants Gary Gary A A. Zeitlan, Zeitlan, White White Plains Plains Medical Medical Accordingly, Associates judgment Associates P.C., and White White Plains Plains Hospital Hospital Medical Medical Center Center for for summary summary judgment dismissing the complaint complaint is GRANTED GRANTED solely solely to the the extent extent that that the the wrongful wrongful death death cause cause dismissing action is dismissed dismissed insofar insofar as asserted asserted against against them; them; and the the motion motion is otherwise otherwise of action DENIED (motion (motion sequence sequence #2). DENIED The parties parties are directed directed to appear appear in the the Settlement Settlement Conference Conference Part Part on May May 29, The 2018, room room 1600, 1600, at at 9:15 9:15 a.m. a.m. for further further proceedings. proceedings. 2018, Dated: Dated: White Plains, Plains, New New York York White April 2018 April 30, 2018 LLiAM J. GIACOMO, J.S.C. ALPHABETICAL MASTER MASTER LIST LIST - WESTCHESTER/Hunt WESTCHESTER/Hunt Zeolan H: ALPHABETICAL v. Zeitlan 5 5 of 5

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