Plaintiff, in her capacity as power of attorney for Sally Keller (decedent), commenced a medical malpractice action against a New York nursing home seeking to recover damages for injuries sustained by decedent, who was a resident at defendant Waterfront Center for Rehabilitation and Healthcare (Waterfront), after she developed an infection in her left eye following cataract surgery that became so severe that the eye required surgical removal.
The plaintiff claimed that the nursing staff at Waterfront failed to administer the anti-inflammatory steroid eye drops directed by decedent’s ophthalmologist following decedent’s cataract surgery on her left eye and later opted to treat decedent with antibiotic eye drops after she began exhibiting signs of a post-operative infection rather than immediately transferring her to the ophthalmologist’s office or the emergency department.
The Supreme Court of the State of New York Appellate Division Fourth Judicial Department stated in its Memorandum and Order entered on February 4, 2024: “We agree with defendants that they raised an issue of fact whether the post-operative failure to administer anti-inflammatory steroid eye drops was a proximate cause of the infection that resulted in the loss of decedent’s left eye inasmuch as defendants submitted in opposition to the motion the affirmation of their medical expert and the deposition testimony of decedent’s ophthalmologist contradicting the opinion of plaintiff’s expert on that issue.”
“We nonetheless further conclude that, contrary to defendants’ contention, they failed to raise a triable issue of fact whether the decision to treat decedent with certain antibiotic eye drops over the weekend instead of immediately sending decedent to the ophthalmologist’s office or the emergency department on an urgent basis was consistent with good and accepted medical practice. Although defendants’ expert opined that Waterfront’s treatment of decedent with the antibiotic eye drops was “an appropriate first step,” defendants’ expert did not adequately address the conclusion of plaintiff’s expert that the standard of care for a person with decedent’s presentation of endophthalmitis required examination at the ophthalmologist’s office or the emergency department on an urgent basis, nor did defendants’ expert address many of the undisputed facts concerning decedent’s treatment including, critically, those contained in the report and medical records documenting decedent’s worsening infection symptoms over the period that Waterfront chose to treat decedent with antibiotic eye drops that proved ineffective instead of seeking, as urged by the ophthalmologist’s office upon consultation at the outset of decedent’s symptoms, more intensive and specialized care to address the infection … Likewise, defendants’ expert did not controvert the opinion of plaintiff’s expert that Waterfront’s delay in sending decedent to her ophthalmologist or the emergency department on an urgent basis caused the infection to progress to an irrecoverably severe point and contributed to the need to surgically remove the eye.”
“We further conclude that the court properly granted that part of plaintiff’s motion with respect to the claim for violation of Public Health Law § 2801-d under the second cause of action. On her motion, plaintiff “bore the initial burden of establishing . . . prima facie entitlement to judgment as a matter of law and to ‘show that there is no defense to [that] cause of action’ ” … Plaintiff met her initial burden by establishing that decedent was injured as a result of a deprivation of a right or benefit established for the well-being of a patient of a residential health care facility by state regulation, including 10 NYCRR 415.3 (f) (1) (i), and that defendants did not “exercise[ ] all care reasonably necessary to prevent and limit the deprivation and injury.””
Source Stanton v. Waterfront Center for Rehabilitation and Healthcare, 28 CA 22-01992.
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