Diaz v Tessler

[*1] Diaz v Tessler 2023 NY Slip Op 23331 Decided on October 23, 2023 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 23, 2023
Supreme Court, Bronx County

Minerva Diaz, as Executrix of the Estate of PETER PIANOFF, Plaintiff,

against

Mark Tessler, M.D., VISITING NURSE SERVICE OF NEW YORK, UNITED ODD FELLOW AND REBEKAH HOME, INC., d/b/a REBEKAH REHAB & EXTENDED CARE CENTER, VOHRA WOUND PHYSICIANS OF NY, PLLC, d/b/a VOHRA WOUND PHYSICIANS and WESTCHESTER SQUARE MEDICAL CENTER, Defendants.



MARK TESSLER, M.D., Third-Party Plaintiff,

against

ALPINE HOME HEALTH CARE, LLC, and MINERVA DIAZ, Third-Party Defendants



Index No. 23107/13



Alpine's Attorney

Robert E. Fein, Esq.

Marks, O'Neill, Obrien, Doherty & Kelly, P.C.

580 White Plains Road, Suite 620

Tarrytown, New York 10591

(914)345-3701

Dr. Tessler's Attorney

Nazia Z. Zaman, Esq.

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP

711 Westchester Ave., Suite 406 White Plains, New York 10604

(914)946-0400
Joseph E. Capella, J.

The following papers numbered 1 to 3 read on this motion dated December 9, 2022.

PAPERS NUMBERED

NOTICE OF MOTION 1

ANSWERING AFFIRMATION 2

REPLY AFFIRMATION 3

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

Motion by third-party defendant, Alpine Home Health Care, LLC (Alpine), for summary judgment (CPLR 3212) and dismissal of third-party complaint, which alleges indemnification and contribution, is granted. At the time in question, decedent was 83 years-old with Parkinson's disease, coronary artery disease, diastolic congestive heart failure (CHF), hypertension, anemia, renal insufficiency and urinary retention. Plaintiff's complaint alleges medical malpractice, Public Health Law violation and negligence, and essentially alleges that defendants failed to, inter alia, provide proper care and treatment of decedent's pressure ulcers. As for Alpine's involvement, decedent received at-home health care services from Alpine from January 28 through February 15, 2012, consisting of seven at-home skilled nursing visits, at-home physical therapy and two hours of daily at-home aid services.

Alpine seeks dismissal of the first cause of action for indemnification by third-party plaintiff, Mark Tessler, M.D., as a matter of law. There is no dispute that plaintiff's complaint alleges that Dr. Tessler had an active role in the alleged tortuous conduct regarding decedent's care and treatment. In addition, Dr. Tessler testified that he participated in the care and treatment of decedent. This information is of paramount importance when attempting to resolve whether indemnification or contribution is an appropriate third-party claim. In the traditional indemnification claim, the party seeking indemnity has committed no wrong, but by virtue of some relationship with the tortfeasor or obligation imposed by law, is nevertheless held liable to the injured party. (Glasser v M. Fortunoff, 71 NY2d 643 [1988]; Rock v Reed-Prentice, 39 N2d 34 [1976].) Conversely, where a party is held liable at least partially due to its own purported conduct, contribution against other culpable tort-feasors is the only available remedy. (Glasser, 71 NY2d 643.) In the instant action, there is no relationship or legal obligation that would entitle Dr. Tessler to indemnification against Alpine. Therefore, if Dr. Tessler is found to be partially or wholly liable, he will only be liable for his comparative share of the damages as an active tortfeasor.

As for Dr. Tessler's contribution claim, Alpine alleges that the treatment it rendered was in accordance with reasonable home health aide practice, and nothing it did or did not do caused decedent to sustain an injury. The initial burden is on Alpine to make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 320 [1986].) If it does, then the burden shifts to Dr. Tessler to produce evidentiary proof in admissible form sufficient to [*2]create issues of fact to warrant a trial (Alvarez, 68 NY2d 320), and denial of summary judgment. In support of its motion is an expert affirmation by Dr. William Wilson, a board certified emergency medicine physician, who opines that the care and treatment received by decedent from Alpine was within the standard of care. He notes that decedent's primary care giver during the relevant at-home time period was plaintiff, Minerva Diaz. He also notes that an initial assessment was done by Nurse Rose Alexander on January 28, 2012, which identified pre-existing skin breakdown in the sacral area and heel, in addition to renal failure, congestive heart failure, hypertension, anemia, Parkinson's Disease, coronary artery disease and prostate cancer.

According to Dr. Wilson, "because [decedent] had peripheral vascular disease, Parkinson's Disease, malnutrition (albumin documented at 3.1 on 01/21/12), renal insufficiency, and past inferior wall heat attack with known heart disease (CABG X3), this can greatly reduce the tissue baseline arterial pressure below 32 mmHg." He states that it was not realistic to expect significant healing after 18 days of care (i.e., January 28 - February 15, 2012). He opines that the skilled nursing visits on January 28, 31, February 2, 6, 9, 10 and 14 were performed in accordance with good and accepted practice. According to Dr. Wilson, on each of these encounters decedent was properly assessed and treated with respect to skin breakdown. He also notes that there is documentation that wound care counseling was performed and Ms. Diaz had significant experience with caring for people with similar conditions. Dr. Wilson opines that to the extent that decedent's pre-existing skin breakdown did not completely resolve over the few days that Alpine was involved, it was not due to Alpine, and occurred in spite of Alpine's diligent treatment. Based on the aforementioned, the Court is satisfied that Alpine has met its burden for summary judgment (Zuckerman v City of NY, 49 NY2d 557 [1980]; Kaffka v NY Hospital, 228 AD2d 332 [1st Dept 1996]), which now shifts to Dr. Tessler.

In opposing Alpine's motion, Dr. Tessler does not explain how indemnification is an appropriate claim in this action. Therefore, that portion of Alpine's motion seeking dismissal of the indemnification claim is granted. As for the balance of the motion, the burden has now shifted to Dr. Tessler to provide an affidavit and/or affirmation from an expert(s) who opines to a reasonable degree of medical certainty that Alpine was negligent, departed from the standard of care and/or violated the Public Health Law, and that such negligence, departure and/or violation was a proximate cause of decedent's injuries. (Mortensen v Memorial, 105 AD2d 151 [1st Dept 1984].) Included in the opposition papers is an expert affirmation by Dr. Lawrence Diamond, who is board certified in geriatric medicine. According to Dr. Diamond, "based on [his] review of the entirety of Alpine's records there is no education provided by the skilled nurses on the importance of turning and positioning, and offloading wounds." This opinion assumes that there was no proper turning and positioning by Ms. Diaz, and that Ms. Diaz required such training. Dr. Diamond does not address Dr. Wilson's finding that Ms. Diaz had significant experience in caring for people with conditions similar to decedent. In addition, the opinion does not address causation, in other words, if Ms. Diaz did not properly turn and position decedent, what if any injury did this cause.

Dr. Diamond opines "that the deterioration of [decedent's] pressure ulcers could have been avoided with the proper medical and nursing care provided by and under the supervision of Alpine." However, this opinion does not specify what would constitute "proper medical and nursing care." Dr. Diamond also opines that "Alpine's records demonstrate that record keeping [*3]was not accurately kept nor recorded, as is evidenced by the inconsistent mentions of [decedent's] wounds at home visits, and failure by skilled nurses and aides to document how orders were carried out." However, Dr. Diamond does not provide any specificity as to dates, and the corresponding inconsistent wound descriptions or orders that were not carried out. Dr. Diamond opines that "Alpine failed to utilize proper training and education as required for accepted medical and nursing practices for identification of wounds and its location." This opinion provides no specificity as to the dates in which proper wound identification and location did not take place, nor does it describe how the failure to identify a wound and its location on a particular date(s) caused injury to decedent.

Lastly, Dr. Diamond opines that Alpine deviated from the standard of care in failing "to record if and how the cushioning boots were used by [decedent], and whether it aided [decedent]," and "failed to [appropriately] stage the [right heel] ulcer." However, neither opinion addresses causation. Even viewing these opinions in a light most favorable to Dr. Tessler, (O'Sullivan v Presbyterian, 217 AD2d 98 [1st Dept 1995]), the Court is satisfied that they are entirely conclusory, and it is well settled that mere surmise, suspicion and accusations are insufficient to defeat summary judgment. (Oates v Marino, 106 AD2d 289 [1st Dept 1984].) Therefore, the motion by Alpine for summary judgment is granted, the third-party action is dismissed against Alpine, and the clerk shall enter judgment accordingly. Alpine is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.

Dated 10/23/23

Hon. Joseph E. Capella, J.S.C.

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