Cenelli v St. Joseph's Med. Ctr.

Annotate this Case

Download PDF

Cenelli v St. Joseph's Med. Ctr. 2019 NY Slip Op 34789(U) May 31, 2019 Supreme Court, Westchester County Docket Number: Index No. 51014/2017 Judge: Charles D. Wood 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: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 commence the statutory statutory time time period To commence period for appeals appeals of right (CPLR (CPLR 5513[al), 55 13[a]), you you are are advised advised to serve serve a copy copy as of of this order, order, with notice notice of of entry, entry, upon of upon all parties. parties. SUPREME COURT COURT OF OF THE THE STA STATE OF NEW NEW YORK YORK SUPREME TE OF COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------X DAVID CENELLI, CENELLI, as Administrator Administrator of of the the Estate Estate of of DAVID CONSTANCE BALLANO, BALLANO, CONSTANCE Plaintiff, Plaintiff, -against-againstDECISION & ORDER ORDER DECISION Index No.: No.: 51014/2017 51014/2017 Index Seq Nos. Nos. 1, 1,2&3 Seq 2 &3 JOSEPH'S MEDICAL MEDICAL CENTER, CENTER, ST. JOSEPH'S JOSEPH'S ST. JOSEPH'S HOSPIT AL NURSING NURSING HOME HOME OF OF YONKERS, YONKERS, NEW NEW HOSPITAL YORK, INC., INC., ST. JOSEPH'S JOSEPH'S MEDICAL MEDICAL PRACTICE, PRACTICE, YORK, P.c., ST. JOSEPH'S VENTURES, LTD LTD and and FAISAL FAISAL P.C., JOSEPH'S VENTURES, NAGARW ALA, ALA, M.D., M.D., NAGARW Defendants. Defendants. -------------------------------------------------------------------x -------------------------------------------------------------------x WOOD,J. WOOD,J. New York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers 42-104, New York Numbers 42-104, connection with with the motions motions for summary summary judgment from St. Joseph's Joseph's Medical Medical were read in connection judgment from Center ("Hospital"), ("Hospital"), and and St. Joseph' Joseph's s Hospital Hospital Nursing Home of of Yonkers Yonkers ("Nursing ("Nursing Home", Home", Center Nursing Home collectively, "St. Joseph's")) Joseph's")) (Seq (Seq 1), and from Faisal Faisal Nagarwala, Nagarwala, MD MD (Seq (Seq 2); and a motion motion to collectively, order a Stipulation Stipulation of of Discontinuance Discontinuance of of St. Joseph's Joseph's Medical Medical Practice Practice P.C. ("Medical ("Medical so order Practice") (Seq 3). Practice") Administrator of of estate estate of of the 86 year-old year-old decedent decedent Constance Constance Ballano Ballano ("decedent") ("decedent") Administrator brought negligence and medical medical malpractice malpractice action action against against nursing nursing home home and hospital hospital for brought negligence decedent's treatment treatment and care at these these facilities. facilities. decedent's [* 1] 1 1 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 Now, based based upon upon the foregoing, foregoing, the motions motions are decided decided as follows: follows: As an initial initial matter, matter, the Medical Medical Practice's Practice's application application (Seq (Seq 3), to have have this this court court so order unopposed by any of order the Stipulation Stipulation of of Discontinuance Discontinuance is unopposed of the the parties. parties. Plaintiffs Plaintiff s counsel counsel has consented consented to said Stipulation Stipulation with with prejudice prejudice on behalf behalf of of their their client, client, and there there are no crosscrossclaims claims against against Medical Medical Practice Practice being being made made by any co-defendants. co-defendants. While While the Stipulation Stipulation is not unopposed, and the court executed executed by ,.-.ounsel '.'ounsel for the other other defendants, defendants, this motion motion (Seq (Seq 3) is unopposed, court shall so order order the Stipulation Stipulation of of Discontinuance, Discontinuance, thereby thereby granting granting Motion Motion Seq 3. A statute statute of of limitations limitations defense defense was raised raised for the first time time in St. Joseph's Joseph's reply reply papers. papers. Despite Despite St. Joseph' Joseph's s having having served served an answer answer and interposed interposed statute statute of of limitations limitations as an affirmative affirmative defense, defense, plaintiff plaintiff would would be prejudiced prejudiced by St. Joseph's Joseph's raising raising of of new new theories theories in their reply papers, papers, as plaintiff plaintiff has not had an opportunity opportunity to respond, respond, and no party party has made made an their application application -l'l~ ~ this court court pursuant pursuant to this Court's Court's Rules, Rules, to submit submit a sur-reply sur-reply or otherwise otherwise address the Statute Statute of of Limitations Limitations issue (Held (Held v Kaufman, Kaufman, 238 AD2d AD2d 546, 546, 548, 548, affd affd as address modified, 91 91 NY2d Thus, the court court will not address address this this defense defense at this this juncture. modified, NY2d 425 ((1998). 1998). Thus, juncture. Turning to the merits merits of of Motion Motion Seqs 1 and 2, it is well-settled well-settled that that a proponent proponent of of a Turning summary judgment motion must must make make a "prima "prima facie showing showing of of entitlement entitlement to judgment judgment as a summary judgment motion matter of of law, law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate the absence absence of of any material material issues issues matter of fact" fact" (Al'varez (Al'Varez v Prospect Prospect Hospital, Hospital, 68 NY2d Orange CountyCountyof NY2d 320, 324 ([1986]; 1986] ; see Orange Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 686-687 686-687 (2d [2d Dept Dept 2007]; 2007]; see also Rea v Poughkeepsie Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Failure Failure to make make such such a prima prima facie showing showing requires requires Gallagher, denial of of the motion, motion, regardless regardless of of the sufficiency sufficiency of of the motion motion papers papers (Winegrad (Winegrad v New a denial New University Medical Medical Center, Center, 64 NY2d NY2d 851 851,, 853 (1986] [1986];; see Jakabovics Jakabovics v Rosenberg. Rosenberg, 49 York University AD3d 695 [2d Dept Dept 2008]; 2008]; see also Menzel Menzel v Plotkin, Plotkin, 202 AD2d AD2d 558, 558-559 [2d Dept Dept 558, 558-559 AD3d 2 [* 2] 2 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 must present opposing party burden, the opposing met this threshold threshold burden, party must present the movant has met 1994]). Once the movant [1980]; see NY2d 557,562 York, 49 NY2d New York, existence of of triable issues of of fact (see Zuckerman 557, 562 [1980]; Zuckerman v New triable issues existence motion for summary also Khan Khan v Nelson, 2009]). In deciding deciding a motion summary Dept 2009]). AD3d 1062 [2d Dept Nelson, 68 AD3d most favorable presented in the light judgment, court is "required evidence presented light most favorable to the evidence view the "required to view judgment, the court from the inference from reasonable inference the party opposing the pleadings pleadings and every reasonable draw every motion and to draw the motion opposing the (Yelder v Walters, the motion" the proof parties in favor of motion" (Yelder Walters, 64 opponent to the of the opponent submitted by the parties proof submitted 385, 386 [2d AD2d 385, Corp., 305 AD2d AD3d 762, 767 [2d Dept Nicklas v Tedlen Realty Corp., Tedlen Realty 2009]; see Nicklas Dept 2009]; AD3d motion is not to resolve judgment motion Dept 2003]). function in considering considering a summary summary judgment resolve court's function The court's 2003]). The Dept Twentieth Century-Fox exist (Sillman (Sillman v Twentieth Century-Fox of fact exist issues of material issues if any material determine if but to determine issues, but 2011]). Dept 2011]). 23 [2d Dept AD3d 18, Film Corp., Corp., 3 NY2d Stukas v Streiter, Streiter, 83 AD3d 18,23 [1957]; Stukas NY2d 395 [1957]; Film must prove plaintiff must "To establish the liability liability of of a physician medical malpractice, malpractice, a plaintiff prove physician for medical "To establish practice, and of practice, standards of that the physician deviated or departed departed from accepted accepted community community standards physician deviated Streiter, 83 (Stukas v Streiter, that such departure injuries" (Stukas plaintiffs injuries" of the plaintiffs cause of proximate cause was a proximate departure was that such make a must make judgment must summary judgment AD3d "A defendant physician seeking seeking summary defendant physician 2011]). "A Dept 2011]). AD3d 18,23 [2d Dept practice or medical practice accepted medical and accepted good and prima there was from good departure from was no departure that there showing that prima facie showing AD3d Hospital, 106 AD3d that the plaio.iff plait::iff was not not injured injured thereby" thereby" (Iulo v Staten Staten Island Island University University Hospital, that must only 696,697 [2d Dept defeat defendant's defendant's application, application, the plaintiff plaintiff must only submit submit 2013]). To defeat Dept 2013]). 696,697 words, prima facie evidentiary facts or materials materials to rebut defendant's prima facie showing. showing. In other other words, rebut the defendant's evidentiary not depart she did not that he or she "this means if the defendant demonstrates only depart from good good and only that defendant demonstrates means that if "this whether such issue of accepted practice, plaintiff of fact as to whether such a triable issue raise a triable only raise need only plaintiff need medical practice, accepted medical only causation only fact as to causation departure occurred. occurred. The required to raise a triable triable issue issue of of fact plaintiff is required The plaintiff departure claimed that any claimed showing that in 1that the defendant defendant makes prima facie showing independent prima makes an independent event "that the event in the AD3d 18). departure proximate cause plaintiffs injuries" (Stukas v Streiter, Streiter, 83 AD3d injuries" (Stukas of the plaintiffs cause of not a proximate departure was not 3 [* 3] 3 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 oppose a motion motion for summary summary judgment dismissing a cause cause of of action sounding To successfully successfully oppose judgment dismissing action sounding medical malpractice, malpractice, a plaintiff plaintiff must must submit submit a physician' physician's s affidavit affidavit of of merit merit attesting attesting to in medical (depending on the defendant' defendant's s prima showing) a departure departure from from accepted accepted practice practice and/or and/or (depending prima facie showing) containing the attesting attesting doctor' doctor'ss opinion opinion that the defendant's omissions or departures departures were were a containing defendant' s omissions competent producing producing cause cause of injury (Domaradzki (Domaradzki v Glen Glen Cove Cove Ob/Gyn Ob/Gyn Associates, Associates, 242 of the injury competent AD2d 282 [2d Dept Dept 1997]; see Arkin Arkin v Resnick, Resnick, 68 AD3d AD3d 692,694 692,694 [2d Dept Dept AD2d Conclusory or general general allegations of medical medical malpractice, malpractice, "unsupported "unsupported by competent competent 2009]). Conclusory allegations of evidence tending tending to establish establish the essential essential elements elements are insufficient insufficient to defeat defeat a motion motion for evidence of New 487 [2d Dept 2002] ; see Alvarez summary judgment" (Mendez summary judgment" (Mendez v City of New York, York, 295 AD2d AD2d 487 Dept 2002]; Alvarez Prospect Hospital, Hospital, supra, supra, at 325). v Prospect establish proximate proximate cause cause in a medical medical malpractice malpractice action, action, "a "a plaintiff plaintiff needs needs do no To establish more than offer offer sufficient sufficient evidence evidence from which which a reasonable reasonable person person might might conclude conclude that that it was probable than than not that that the injury injury was caused defendant" (Johnson (Johnson v Jamaica Jamaica more probable caused by the defendant" Hospital Medical Medical Center, Center, 21 AD3d AD3d 881 881,, 883 [2d Dept Dept 2005] 2005] citing citing Holton Holton v Sprain Sprain Brook Brook Hospital Manor Nursing Home, 253 AD2d AD2d 852 [2d Dept Dept 1998]; 1998]; see Clarke Clarke v Limone, Limone, 40 AD3d AD3d 571 571,, Manor Nursing Home, 571-572 [2d Dept Dept 2007]). 2007]). Since Since the burden burden of of proof proof does not ask ask the plaintiff plaintiff to eliminate eliminate 571-572 cause of of her injury, injury, "the "the plaintiffs expert need not quantify exact extent extent to every possible possible cause plaintiffs expert need not quantify the exact which a particular particular act or omission omission decreased decreased a patient's chances [of [of a cure cure or increased increased her her which patient's chances injury], as long as the jury that it was probable that some some diminution" diminution" in the plaintiffs plaintiffs injury], jury can infer that probable that chance of ofaa hP.tter hp.tter outcome outcome (Jump (Jump v Facelle, Facelle, 275 AD2d AD2d 345, 345, 346 [2d Dept Dept 2000]; 2000]; see Flaherty Flaherty v chance Fromberg, 46 AD3d AD3d 743, 745 [2d Dept Dept 2007]; 2007]; Calvin Calvin v New York Medical Medical Group, Group, P.C., P.C., 286 New York Fromberg. AD2d 469, 469, 470 [2d Dept Dept 2001]). 2001]). In addition, addition, summary summary judgment "is not appropriate appropriate in a AD2d judgment "is medical malpractice malpractice action action where where the parties adduce conflicting medical expert expert opinions opinions ... ...such such medical parties adduce conflicting medical 4 [* 4] 4 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 credibility credibility can only only be resolved resolved by a jury" jury" (Feinberg (Feinberg v Feit, 23 AD3d AD3d 517, 517, 519 [2d Dept Dept 2005] quoting Shields v Baktidy. Baktidy, 11 11 AD3d AD3d 671 671,, 672 [2d Dept Dept 2004] 2004];; see generally generally Darwick Darwick v quoting Shields Paternoster, 56 AD3d AD3d 714, 714, 715 [2d Dept Dept 2008] 2008];; Adjetey Adjetey v New New York York City City Health Health and and Hospitals Hospitals Paternoster, ~ ~ 63 AD3d AD3d 865 [2d Dept Dept 2009]). 2009]). As this matter matter involves involves negligence negligence and malpractice, malpractice, notably, notably, "the "the distinction distinction between between omissions complained ordinary ordinary negligence negligence and malpractice malpractice turns turns on whether whether the acts or omissions complained of of involve a matter matter of of medical medical science science or art requiring requiring special special skills skills not ordinarily ordinarily possessed possessed by involve persons or whether whether the conduct conduct complained complained of of can can instead instead be assessed assessed on the basis basis of of the lay persons (D'Elia v Menorah common everyday everyday experience experience of of the trier trier of of the facts" facts" (D'Elia Menorah Home Home & Hosp. Hosp. for common Aged & Infirm, 848, 850, Infirm, 51 AD3d AD3d 848, 850, [2d Dept Dept 2008]). 2008]). Here, decedent decedent had had been living at home, home, and receiving receiving home home health health services. Here, been living services. As she needed long term care, care, she was admitted admitted to the Nursing Nursing Home Home on January 2013.. Her needed January 8, 2013 diagnosis upon upon admission admission were were bipolar hypertension, atrial atrial fibrillation, fibrillation, congestive diagnosis bipolar disorder, disorder, hypertension, congestive heart failure, failure, coronary coronary artery artery disease, disease, dementia, dementia, Paget' Paget'ss disease disease and end-stage renal renal failure. She heart and end-stage remission from non-Hodgkin's non-Hodgkin's lymphoma, lymphoma, and had had suffered suffered from a prior stroke and was in remission prior stroke prior myocardial myocardial infarction. infarction. During During her stay at the Nursing Home, she had had been been admitted admitted on a prior Nursing Home, couple of of occasions occasions to the Hospital, Hospital, including including on June June 11, 2013 2013,, due due to altered altered mental mental status status couple diagnosed with with a UTI, UTI, and was discharged discharged on June June 18, 18,2013, back to the Nursing and was diagnosed 2013 , back Nursing Home. Home. Almost a year year later, later, while while at the Nursing Home on the night night of of May 21 21,, 2014, 2014, decedent decedent Almost Nursing Home unresponsive, and was transferred transferred to the Hospital Hospital on an emergency emergency basis, basis, due to a was found unresponsive, seizure caused caused by a lack lack of of perfusion perfusion of of blood blood to the brain, brain, as a result result of of inadequate inadequate heart heart seizure of admission admission to the Hospital, Hospital, decedent decedent was was 86 years years of of age, age, with with a history history function. At the time of 5 [* 5] 5 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 of of chronic chronic artial fibrillation, fibrillation, and status status post post multiple multiple cerebral cerebral infacts. infacts. While While in the emergency emergency .8 degrees. room, room, decedent decedent was found found to be septic, septic, with with a temperature temperature of of 103 103.8 degrees. She had a marked marked alveolar-air alveolar-air gradient gradient with with oxygen oxygen saturation saturation of of 89% on I100% 00% F FI02, 102, prompting prompting immediate immediate endotracheal intubation. intubation. Decedent Decedent developed developed pressure pressure ulcers ulcers while while admitted admitted at the Hospital. Hospital. endotracheal Several months months after after her admission admission to the Hospital, Hospital, decedent decedent died died on August August 2, 2014. 2014. Several According to the complaint complaint (among (among other other things), things), defendants defendants allowed allowed the development development According of pressure pressure ulcers, ulcers, and failing failing to provide provide necessary necessary treatment treatment and services services to and progression progression of promote healing healing to decedent. decedent. promote support of of its instant instant motion motion for summary summary judgment, Joseph's s (Seq (Seq 1) on behalf of In support judgment, St. Joseph' behalf of the Nursing Nursing Home Home and the Hospital, Hospital, offers offers the opinion opinion of of George George C. Fisher, Fisher, M.D., M.D., a physician physician licensed to practice medicine in New Board Certified Certified in Family Family Practice Practice since since 199311• • licensed practice medicine New York, and Board Dr. Fisher Nursing Home, Fisher opines opines that that the nutrition nutrition and hydration hydration provided provided to decedent decedent at the Nursing Home, together with with the administrations administrations of of the medication medication (with (with the exception exception of of a brief brief period period when when together Actonel was not administered administered without without consequence) consequence) were were carried carried out appropriately appropriately by the Actonel Nursing Home staff. Nursing Home "After an initial initial weight weight loss due to the loss of of retained retained fluid from heart heart "After multiple co-morbidities, co-morbidities, as well as muscle muscle atrophy atrophy due to failur~ and her multiple minimal mobility, mobility, which which caused caused loss of of muscle muscle mass, mass, it appears appears as though though the minimal weight stabilized, stabilized, and in my view, view, nutrition nutrition and hydration hydration were were adequate. adequate. The The weight record show that that Ensure Ensure was given given as a dietary dietary supplement, patient was record show supplement, and the patient provided "fortified "fortified super super foods" foods" including including oatmeal, oatmeal, etc. Various Various notes notes indicate indicate provided that skin skin turgor turgor is good good thus suggesting suggesting that that the patient patient was was properly properly hydrated. hydrated. that There are specific specific entries entries which of the attached attached records records which which reveal reveal There which are part of there were were no signs signs and symptoms symptoms of of dehydration" dehydration" (see Dr. Fisher's's Dr. Fisher that there Affirmation). Affirmation). 'The Hospital and the Nursing Home used used the same same expert. expert. The Hospital Nursing Home 1 6 [* 6] 6 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 conclusion that that in spite spite of of decedent's decedent's sedentary sedentary manner, manner, adverse adverse co-morbities, co-morbities, It is his conclusion hydration and nutrition nutrition were were maintained maintained in decedent, decedent, and there there were were no departures departures from good good hydration accepted medical medical practice nutritional management management of of decedent. decedent. and accepted practice in the nutritional Home further further contends contends that decedent decedent on the January January 29, 29, 2013 assessment, assessment, The Nursing Nursing Home weight of of 166.5 pounds pounds placed obese category category of of the body body mass mass index, index, since since placed her in the obese her weight decedent was only only 5 feet 1 inch. Weight Weight loss was necessary necessary and healthy healthy and and not a sign sign of of decedent malnutrition and neglect. neglect. Her ideal body body weight weight was 104 to 128 pounds. pounds. malnutrition Fisher concludes concludes that the care provided staff at the Nursing Home comported comported Dr. Fisher provided by the staff Nursing Home accepted practice, practice, and did not depart depart from appropriate appropriate standards standards in their their care with good and accepted treatment of of decedent. decedent. and treatment opposition, plaintiff plaintiff offers offers an unidentified unidentified doctor's doctor's affirmation, affirmation, who is Board Board In opposition, Certified in New New York, reviewed decedent's decedent's medical pleadings and other other Certified York, who has reviewed medical records, records, the pleadings documents in the record. record. From From the record, plaintiff s expert expert recites recites that that decedent, decedent, then then 85 years documents record, plaintiffs of age was admitted admitted to the Nursing Home on January January 8, 2013 for long long term term care. Her diagnoses diagnoses of Nursing Home upon admission admission were were bipolar disorder, hypertension, hypertension, atrial fibrillation, fibrillation, congestive congestive heart heart failure, failure, upon bipolar disorder, coronary artery disease, disease, dementia, dementia, Page's Page's disease disease and end-stage end-stage renal failure. failure. coronary During her admission admission at the Nursing Home, on January January 29, 29, 2013, 2013, decedent decedent underwent underwent a During Nursing Home, Nutrition/Hydration Evaluation Evaluation where where she was noted noted to be a high high nutritional nutritional risk. As time went went Nutrition/Hydration decedent was noticeably noticeably losing losing weight. weight. Plaintiffs Plaintiff s expert expert believes meeting her believes she was not meeting on, decedent nutritional needs. nutritional Nursing Home, Home, decedent's decedent's starting starting weight weight was was 166.5 pounds. readmission At the Nursing pounds. Upon Upon readmission Home, decedent decedent was noted skin intact intact and and weighed pounds. By July to the Nursing Nursing Home, noted with with skin weighed 157.2 pounds. 13,2013, eight pounds and weighed weighed 149 pounds. pounds. She was again again noted noted as being 13, 2013, she lost eight pounds and being a high 7 [* 7] 7 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 nutritional risk with with inadequate inadequate food and beverage beverage intake. intake. Her Her current current diet diet remained remained nutritional unchanged. On February pressure ulcers. unchanged. February 3, 2014, 2014, decedent decedent was considered considered a high high risk risk for pressure ulcers. Due Due weight loss of of about about 10 pounds past six months months and and poor appetite, Dr. Giti Mansouri Mansouri pounds in the past poor appetite, to a weight referred decedent decedent to the dietician dietician on April 17, 17,2014. until May 6, 2014, 2014, that that decedent decedent referred 2014. It was not until started on an appetite appetite stimulant. stimulant. was started night of of May 21 21,, 2014, 2014, while while still at the Nursing Nursing Home, Home, decedent decedent was found On the night unresponsivt: and was transferred transferred to the Hospital, Hospital, after after suffering suffering a seizure. seizure. Upon Upon admission admission to unresponsivt-· Hospital, decedent, decedent, was was intubated intubated and on a ventilator, ventilator, it was noted she had no wounds. the Hospital, was noted wounds. Her Braden scale meaning that decedent was at high high risk risk for developing developing pressure pressure ulcers. Braden scale was 9, meaning that decedent ulcers. The next Nutrition/Hydration Evaluation Evaluation finding finding that that her nutritional needs next day she underwent underwent a Nutrition/Hydration her nutritional needs were not being being met. It is plaintiffs expert's s opinion opinion that decedent was not properly nourished or hydrated hydrated plaintiffs expert' that decedent properly nourished while under under Nursing Nursing Home' Home'ss care. care. She started started at 166.5 pounds weight in the Nursing Nursing while pounds and lost weight expert claims claims that that contrary contrary to St. Josephs' Josephs' expert' expert's s contention contention that that decedent's decedent's Home. The expert weight stabilized, stabilized, decedent decedent continued continued to lose weight weight during during her her admission admission at the Nursing Nursing weight Home. Plaintiffs expert points Hospital's' s records, records, decedent decedent was noted noted with with Home. Plaintiffs expert points out that in the Hospital nutrition impairment. impairment. The The Nursing Nursing Home's Home's failure failure to order order additional additional nutritional nutritional consult, consult, test, test, nutrition change decedent's decedent's nutrition/hydration nutrition/hydration plan plan was a departure departure from the accepted accepted standards standards of of change nutrition is necessary necessary to the maintenance maintenance of of adequate adequate skin skin care, care, which which was a care, as proper proper nutrition proximate cause cause of of decent's decent's malnutrition. malnutrition. proximate From the Nursing Home's submissions, submissions, it met its prima entitlement to judgment From Nursing Home's prima facie entitlement judgment matter of of law dismissing dismissing the subject subject causes causes of of action, action, insofar insofar as they they relate relate to its alleged alleged as a matter decedent's malnutrition malnutrition and dehydration dehydration during during the relevant relevant period. period. failure to prevent prevent the decedent's 8 [* 8] 8 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 However, However, the affirmation affirmation of of the plaintiffs plaintiffs expert expert was sufficient sufficient to raise raise a triable triable issue issue of of fact, fact, of summary judgment dismissing thus warranting warranting denial denial of summary judgment dismissing those those claims. claims. There There are questions questions of of fact as to whether whether it is customary customary practice practice for a patient patient whose whose diet diet is being being controlled controlled in a skilled nursing nursing to lose weight, weight, or was decedent decedent in fact malnourished. malnourished. skilled As for the Hospital, Hospital, Dr. Fisher Fisher opined opined that: ...A Kennedy ulcer ulcer is not a product product of of nursing nursing or medical medical neglect neglect but " ... A Kennedy occurs as a manifestation manifestation of of end stage disease patient's systems systems fall. occurs disease as the patient's Nevertheless, the patients patients skin care was maintained maintained through through surgical surgical Nevertheless, the consultation on July July 10, 10,2014, which recommended recommended debridement, well as the 2014, which debridement, as well consultation of air mattress, mattress, heel protection, protection, collagnase collagnase dressings, dressings, appropriate appropriate period period use of turning, etc. I find that that the skin skin care met appropriate appropriate standards standards of of care both care at both turning, Home and Medical Medical Center. Center. ...."" (See (See Dr. Fisher's Fisher's Affirmation). Affirmation). the Nursing Nursing Home contravention, plaintiffs plaintiffs expert expert states In contravention, states that: "Further defendant' defendant' expert expert emphasizes emphasizes that that decedent was in the active active "Further decedent was process of dying. That does not permit a caregiver to deny the patient measures process of That permit caregiver deny patient measures which would would preserve preserve comfort comfort and dignity. dignity. Instead Instead of of receiving receiving comfort, comfort, which decedent's time spent in the hospital hospital during during the last two months months of of her her life was decedent's time spent ridden with with extreme extreme pain pain and suffering result of of the pressure pressure ulcers ulcers she ridden suffering as a result developed while while under under the care and treatment treatment of of defendants" defendants" (see Plaintiff's developed Plaintiff's Expert Opinion Opinion"" at 21) Expert It is also plaintiffs plaintiffs expert's expert's opinion opinion that: decedent's decedent's skin breakdown at the Hospital Hospital skin breakdown documented within within decedent's medical records; records; and the Hospital Hospital failed to was not properly properly documented decedent's medical accurately and consistently consistently stage stage and/or and/or size decedent's ulcers throughout throughout the medical medical accurately decedent's pressure pressure ulcers records. Between Between May May 24, 24, 2014, June 1, 2014, 2014, decedent decedent was not noted noted with with any wounds wounds records. 2014, and June and/or pressure pressure ulcers. ulcers. It wasn't wasn't until until the next next day, June June 2, 2014, 2014, that that decedent decedent was noted noted with with and/or pressure ulcers for the first time time during during admission admission at the Hospital, Hospital, which which over over time time were were getting getting pressure ulcers worse. Additionally, Additionally, frequent frequent turning turning and positioning positioning of of patients patients in hospitals, hospitals, particularly particularly those those worse. susceptible of of developing developing pressure pressure ulcers, ulcers, is critical critical as it distributes distributes pressure pressure to different different parts parts susceptible 9 [* 9] 9 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 of the body so that no one part part receives receives pressure pressure for any great great deal of of time. time. Decedent Decedent was not not of turned and positioned positioned every every two hours, hours, which which is a departure departure that that was a proximate proximate cause of the turned cause of development and deterioration deterioration of of decedent' decedent's s pressure pressure ulcers. ulcers. The The ulcer ulcer appeared appeared to grow grow and development worsen. worsen. Plaintiffs expert expert concludes concludes that that the actions actions and inactions inactions of of the Hospital Hospital were were a clear clear Plaintiffs deviation form the good good and acceptable acceptable standards standards of of medical medical care care and were were the proximate proximate deviation of decedent' decedent's s injuries, injuries, and were were the proximate proximate cause cause of of the development subsequent development and subsequent cause of progression and deterioration deterioration of of plaintiffs plaintiff s decedent's decedent's pressure pressure ulcers. ulcers. progression Courts recognize recognize that that "a hospital hospital may not be held liable liable for injuries injuries suffered suffered by a Courts patient under the care of private attending attending physician physician chosen patient where where the patient who is under of a private chosen by the patient resident physicians physicians and nurses nurses employed employed by the hospital hospital merely merely carry out the orders orders of of the resident carry out private attending attending physician, physician, unless unless the hospital hospital staff staff commits commits independent independent acts of negligence negligence or private acts of attending physician's physician's orders orders are contradicted contradicted by normal normal practice practice (Cham (Cham v St. Mary's Mary's Hosp. Hosp. the attending of Brooklyn, Brooklyn, 72 AD3d AD3d 1003, 1004 [2d Dept Dept 201 2010]). meet its prima prima facie burden burden of of proof, of O]). To meet moving defendant defendant is required required to address address the factual allegations allegations set forth forth in the plaintiffs' plaintiffs' bill the moving of particulars particulars with with reference reference to the moving moving defendant's defendant's alleged alleged acts acts of of negligence negligence and the of injuries suffered with competent competent medical medical proof proof (Cham (Cham v. St. Mary's Mary's Hosp. Hosp. of of Brooklyn, Brooklyn, 72 injuries suffered with AD3d at 1005. AD3d Here, the Hospital Hospital demonstrated demonstrated its prima prima facie entitlement entitlement to judgment matter of of Here, judgment as a matter through the submission submission of of an affirmation affirmation of of a board-certified board-certified physician physician and decedent's s law through and decedent' medical records, records, which which established established that there was no departure departure from good good and accepted accepted medical practice by the defendants defendants (Lefkowitz (Lefkowitz v Kelly, 170 AD3d AD3d 1148, 1150 [2d Dept Dept 2019]). 2019]). practice However, under under these these circumstances, triable issues issues of of fact precludes precludes summary summary judgment However, circumstances, triable judgment on 10 [* 10] 10 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 decedent' decedent'ss negligence negligence and malpractice malpractice claims claims against against the Hospital. Hospital. Plaintiff Plaintiff raised raised a triable triable of fact through through an expert expert affirmation affirmation from a physician, physician, who opined opined with with a reasonable reasonable issue of departed from the accepted degree of of medical medical certainty certainty that that the Hospital Hospital departed accepted standard standard of of care. Nagarwala's motion judgment (Seq Turning Turning next next to Dr. Nagarwala's motion for summary summary judgment (Seq 2), according according to the complaint, complaint, Dr. Nagarwala Nagarwala failed to prevent prevent the development development and the subsequent subsequent deterioration deterioration of of plaintiffs plaintiffs decedent's decedent's sacral pressure ulcer during during her Hospital Hospital admission of pressure ulcer admission of May 21 , 2014, to August 21,2014, August 2, 2014, 2014, when when she died. died. support of of Dr. Nagarwala's Nagarwala's motion motion for summary offers the affirmation affirmation summary judgment, judgment, he offers In support of ACC, licensed practice medicine New York, of Philip Philip Gelber, Gelber, MD, MD, F FACC, licensed to practice medicine in New York, and specializes specializes in of Internal Internal Medicine, Medicine, Critical Critical Care Medicine, Medicine, and Cardiovascular Cardiovascular Disease. Disease. After After the fields of reviewing decedent's decedent's medical medical records, records, and the pleadings pleadings and discovery discovery material, material, the expert expert reviewing opined properly. She was administered opined that the decedent decedent was treated treated properly. administered respiratory respiratory support, support, given given triple antibiotic antibiotic therapy, therapy, anticoagulant, anticoagulant, as well well as an IV of of labetolol labetolol for her elevated elevated blood blood triple pressure, and a blood blood work-up work-up was done. After After a couple couple of of months months of of this treatment, treatment, the pressure, decedent showed showed little little signs signs of of improvement; improvement; a brief brief trial extubation extubation failed, failed, and and she underwent underwent decedent tracheotomy. She subsequently subsequently developed developed renal failure failure and underwent underwent dialysis, dialysis, and was a tracheotomy. continued on antibiotics. antibiotics. It is the doctor's doctor's opinion, opinion, that based upon decedent' decedent's s renal failure, failure, continued based upon respiratory failure, failure, age, co-morbidities, co-morbidities, prior prior CVAs CVAs obtundation obtundation point, point, nursing nursing home home history, history, respiratory criteria for evaluation evaluation of of sepsis, sepsis, the decedent's decedent's mortality mortality risk risk stood greater than than and the NIH NIH criteria stood at greater 90% at this point. point. Even Even with with the odds odds against against decedent, decedent, the staff staff withheld withheld nothing nothing in her management, which which in his opinion opinion was exemplary. exemplary. management, Gelber continues continues that that as for Dr. Nagarwala, of the physicians involved involved in her Dr. Gelber Nagarwala, one of the physicians care, he conducted conducted appropriate appropriate consultations consultations and continued continued to provide provide proper proper treatment. treatment. Sores Sores care, 11 11 [* 11] 11 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 uncommon, and are not not always always treatable treatable or preventable preventable in a clinical clinical context. While it are not uncommon, context. While would ordinarily ordinarily be the province province of of the nursing nursing staff staff to turn tum and position position the the decedent decedent to reduce reduce would of bed sores, sores, in a chronic chronic ventilator ventilator patient, patient, that that is not not always always feasible feasible. . The the risks of The doctor doctor characterizes Dr. Nagarwala's treated decedent, decedent, to be aggressive aggressive and heroic. characterizes Nagarwala' s care as he treated heroic. contravention to Dr. Nagarwala' Nagarwala's s expert, expert, plaintiff plaintiff offers unnamed expert, In contravention offers an unnamed expert, who who is Certified in Internal Internal Medicine, Medicine, Geriatric Geriatric Medicine, Medicine, and am a Diplomate of the National Board Certified Diplomate of National Board of of Medical Medical Examiners. Examiners. After After reviewing reviewing the record, record, and plaintiff's medical records, records, Board plaintiff's medical plaintiff's expert expert opines opines that treatment rendered decedent by Dr. Nagarwala N agarwala was plaintiffs that the care and treatment rendered to decedent accordance with with good good and accepted accepted medical medical practice, practice, and that that there there were were departures not in accordance departures and deviations from the accepted accepted standards standards of of care. care. deviations Plaintiff's expert expert recites recites that that Dr. Nagarwala examined decedent decedent on numerous numerous occasions Plaintiff's Nagarwala examined occasions of decedent' decedent's s attending attending physicians/ physicians/ a hospitalist hospitalist during and was one of during her her admission admission to the Hospital. On June June 2, 2014, decedent was noted noted with with pressure ulcers for the first first time time during Hospital. 2014, decedent pressure ulcers during hospital admission. admission. Plaintiffs Plaintiff's expert expert emphasizes that Dr. Nagarwala examined decedent her hospital emphasizes that Nagarwala examined decedent but did not note any pressure pressure ulcers ulcers and/or and/or wounds. wounds. Nagarwala on that same day, but Nagarwala examined examined decedent again on June June 3, 2013, 11,, 12 122014, again did not mention any 2014, and again not mention decedent 2013 , and June June 10, and 11 pressure ulcers ulcers and/or and/or wounds wounds in his report. report. Every Every time that Nagarwala pressure time that Nagarwala examined examined decedent decedent June 14, 14,2014 through June June 30, 2014, 2014, he did not mention mention any pressure ulcers, wounds wounds or from June 2014 through pressure ulcers, redness anywhere anywhere on decedent's decedent's body, there being notations all over over the the records redness body, despite despite there being notations records regarding decedent decedent having having sacral sacral pressure ulcers and redness redness on her heels. In nursing nursing regarding pressure ulcers her bilateral bilateral heels. notes, but not not in any ofNagarwala' ofNagarwala's s narrative narrative notes, notes, from from June June 14, 14,2014 2014 through through notes and care notes, June 27, 27, 2014, 2014, decedent decedent was continuously continuously noted noted with with a stage stage III sacral pressure ulcer, ulcer, stage June sacral pressure stage II preSSl.fe and redness redness on bilateral bilateral heels. By June 28, 2014, 2014, decedent's pressure sacral presst.re June 28, decedent's sacral sacral pressure 12 [* 12] 12 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 deteriorated to Stage Stage IV. She was also noted noted with pressure ulcer ulcer and ulcer had deteriorated with a stage stage II sacral sacral pressure redness on her bilateral bilateral heels. redness Based on the record, record, plaintiffs plaintiff's expert expert concludes concludes that that it was a departure departure in the standards standards Based T- of good and accepted accepted medicine medicine for Dr. Nagarwala Nagarwala to fail to accurately accurately and consistently of consistently size decedent's pressure pressure ulcers ulcers throughout throughout his notes, notes, and this departure departure was proximate cause decedent's was a proximate cause of of substantial deterioration deterioration of of plaintiffs plaintiff's pressure pressure ulcers. ulcers. the substantial Additionally, frequent frequent turning turning and positioning positioning of of patients patients in hospitals, hospitals, particularly particularly those those Additionally, susceptible of of developing developing pressure pressure ulcers, ulcers, is critical critical as it distributes distributes pressure pressure to different different parts parts susceptible of the body so that that no one part part receives receives pressure pressure for any great great deal deal of time. For a patient patient like of of time. decedent, good accepted medical medical practice practice would would have been been to re-position more often than decedent, good and accepted re-position more often than hours, and the lack lack of of consideration consideration given given to postural postural alignment alignment was a deviation deviation every two hours, accepted medical medical practice, practice, and a proximate proximate cause cause of decedent's development of decedent's development from good and accepted deterioration of of pressure pressure ulcers. ulcers. and deterioration plaintiff's expert' expert'ss opinion, opinion, that Dr. Nagarwala's failure to arrange It is also plaintiffs Nagarwala' s failure arrange for the wound care team team to timely timely assess assess decedent's constitutes a deviation deviation from from good good wound decedent' s pressure pressure ulcers ulcers constitutes accepted medical medical practice. practice. It was not until July 10, 2014, 2014, that that he first first noted noted decedent decedent had a and accepted pressure ulcer ulcer and/or and/or wound, wound, even though though nurses nurses and other providers noted noted pressure pressure ulcers pressure other providers ulcers and/or wounds wounds prior prior to this this date, date, and that that failure failure was a proximate proximate cause cause of of plaintiffs plaintiff's and/or development and and deterioration deterioration of of pressure pressure ulcers. The expert also also points points out that the mattress mattress development The expert out that used by plaintiff plaintiff may may not have have been been gel, foam and sheep sheep skin mattresses and used skin surface-based surface-based mattresses and overlays are of of particular particular utility utility in high risk patients. patients. overlays Further, despite despite plaintiffs plaintiff's co-morbities, co-morbities, the etiology etiology of pressure ulcers ulcers is pressure. Further, of pressure pressure. The various co-morbities co-morbities the plaintiff plaintiff suffered suffered from were various were consistent consistent throughout throughout the time time of of her 13 [* 13] 13 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 admission. atrial fibrillation, admission. Moreover, Moreover, the following following should should be noted: hypertension, hypertension, atrial fibrillation, congestive heart heart failure, failure, coronary coronary artery artery disease, disease, dementia dementia Page' Page'ss disease, congestive disease, end end stage stage renal bipolar disorder disorder does not cause cause pressure pressure ulcer. It is a medical medical fact that that unrelieved unrelieved failure bipolar pressure that Dr. Nagawala should have pressure causes causes pressure pressure ulcers. ulcers. It is plaintiffs plaintiffs expert' expert's s opinion opinion that Nagawala should have timely, appropriately, appropriately, and on an ongoing ongoing basis basis evaluated decedent's s pressure pressure relieving relieving more timely, evaluated decedent' surfaces, evaluated evaluated decedent' decedent's s risk for pressure pressure ulcers, ulcers, evaluated evaluated the frequency frequency and surfaces, and compliance compliance repositioning, and evaluated evaluated all pressure pressure ulcer ulcer interventions. interventions. In plaintiffs plaintiff s expert expert opinion, opinion, with repositioning, failures led to the development development and deterioration deterioration of of decedent's pressure ulcers. decedent's pressure ulcers. these failures Finally, it is plaintiffs plaintiffs expert's opinion that that decedent's decedent's medical history did not make make Finally, expert's opinion medical history incapable of of healing healing from a pressure pressure ulcer, and did not make development of pressure her incapable make the development of a pressure ulcer clinically clinically unavoidable. unavoidable. Decedent's Decedent's pressure pressure ulcers ulcers could could have have been ulcer been avoided avoided with with the proper medical medical and nursing nursing care, care, provided provided by and under under the supervision supervision of proper of Dr. Nagawala. Nagawala. Based upon upon the foregoing, foregoing, and in particular particular the Hospital Hospital's' s expert expert affidavit, affidavit, the court court Based Hospital demonstrated demonstrated prima prima facie that that it did not depart accepted finds that the Hospital depart from good good and accepted medical practice practice in their their treatment treatment of of decedent, decedent, and did not cause cause decedent's alleged injuries. injuries. medical decedent's alleged opposition, plaintiff plaintiff raised raised triable triable issues issues of of fact through through the expert's expert's affidavit In opposition, affidavit (Muniz (Muniz v Mount Sinai Hosp. of Queens, 91 AD3d AD3d 612, 612, 617 [2d Dept Dept 2012]).The 2012]). The opinion opinion of plaintiffs' Mount of Queens, of the plaintiffs' medical expert expert is not conclusory conclusory or without without evidentiary evidentiary value, value, thus, thus, summary summary judgment medical judgment is not appropriate here, here, where where the parties parties adduce adduce conflicting conflicting medical medical opinions opinions and raise raise credibility appropriate credibility which can only resolved by a jury (Barrocales v New York Methodist Methodist Hosp. Hosp.,, 122 issues which only be resolved jury (Barrocales New York AD3d 648, 648, 649 [2d Dept Dept 2014]). 2014]). AD3d 14 [* 14] 14 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 court has considered considered the remainder remainder of of the factual factual and legal contentions contentions of of the The court parties and to the extent extent not specifically specifically addressed, them to be without without merit merit or rendered rendered parties addressed, finds them moot by other other aspects aspects of of this decision. decision. This constitutes constitutes the decision decision and order order of of the court. moot Accordingly, based based upon upon the stated reasons, it is hereby hereby Accordingly, stated reasons, ORDERED, that that St. Joseph's Joseph's Medical Medical Center, Center, St. Joseph's Joseph's Hospital Hospital Nursing Home of of ORDERED, Nursing Home Yonkers, motion motion for summary summary judgment denied; and it is further further Yonkers, judgment (Seq 1) is denied; ORDERED, that Faisal Faisal Nagarwala, Nagarwala, M.D. motion motion for summary summary judgment ORDERED, judgment (Seq 2) is denied; and it is further further denied; ORDERED, that St. Joseph's Joseph's Medical Medical Practice, Practice, P.C., P.C., to have have this court court so order order the ORDERED, Stipulation of of Discontinuance Discontinuance (Seq 3) is granted granted simultaneously executed as of this date; and Stipulation simultaneously executed of this it is further ORDERED, that that plaintiff plaintiff is to serve this Decision Decision and Order Order on all parties parties and the ORDERED, Clerk's Office Office no later later than than 15 days from the date of of the Decision Decision and Order; further Order; and and it is further Clerk's ORDERED, that that the parties parties are directed directed to appear appear on ORDERED, ~ J J II tt JJ lI~ ~ , 2019 2019 9:15 at 9: 15 Courtroom 1600, the Settlement Settlement Conference Conference Part, at the Westchester Westchester County County A.M. in Courtroom Courthouse, 111 111 Dr. Martin Martin Luther Luther King Jr. Blvd., Blvd., White White Plains, Plains, New York 10601. New York Courthouse, 2019 Dated: May 31, 2019 White Plains, Plains, New York White New York 15 [* 15] 15 of 16 FILED: WESTCHESTER COUNTY CLERK 05/31/2019 11:46 AM NYSCEF DOC. NO. 106 To: INDEX NO. 51014/2017 RECEIVED NYSCEF: 05/31/2019 Associates Sinel & Associates Attorneys for Plaintiff Plaintiff Attorneys Floor Penn Plaza, Plaza, 8thth Floor 7 Penn New York 10001 New York, New New York Hirsch, Britt Britt & Mose Mose Hirsch, Attorneys for Defendants Defendants Attorneys S1. Joseph's Joseph's Medical Medical Center Center and St. S1. Joseph's Joseph's Hospital Hospital Nursing Home of of Yonkers, Yonkers, New New St. Nursing Home York, Inc. Merrick A Avenue, Suite 400 90 Merrick venue, Suite Meadow, New New York York 11554 East Meadow, O'Connor, McGuinness, McGuinness, Conte, Conte, Doyle & Oleson Oleson O'Connor, Attorneys for Defendant Defendant Faisal Faisal Nagarwala, Attorneys Nagarwala, MD. Baker Avenue, Avenue, Suite Suite 675 One Baker White Plains, Plains, New York 10601 White New York Gordon & Silber, Silber, P.C. Gordon Attorneys for Defendant Defendant Attorneys S1.Joseph's Medical Practice, Practice, P.C. St. Joseph's Medical Lexington Avenue, Floor 355 Lexington Avenue, 7thth Floor New York, New York 10017 New York New 16 [* 16] 16 of 16

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.