October 17, 2020

The Supreme Court of the State of New York Appellate Division: Second Judicial Department (“New York Appellate Court”) affirmed in its Decision & Order dated September 16, 2020 that the decedent’s primary care physician was not entitled to summary judgment in a New York medical malpractice nursing home negligence case.

The New York Appellate Court stated, “the plaintiff submitted an affirmation from an expert which raised a triable issue of fact as to the nature of the physician/patient relationship between Khokhar [the defendant primary care physician] and the decedent while she was at OLOC [the defendant nursing home], specifically, whether Khokhar was still a treating physician of the decedent while she was at OLOC, since while she was there he performed a physical exam of her and did an assessment and plan which included orders for x-rays and a complete blood count … the affirmation of the plaintiff’s expert, reasonably construed in a light most favorable to the plaintiff, was not speculative or conclusory, but rather sufficiently raised triable issues of fact as to whether Khokhar departed from accepted medical practice and whether his alleged departures were a proximate cause contributing to the decedent’s death.”

Dissenting Opinion

The dissent stated: “In my view, the record demonstrates that the plaintiff failed to establish a triable issue of fact as to the proximate cause between the alleged departures of Khokhar from good and accepted medical practice and the decedent’s death.” The dissenter argued: “On her admission to OLOC, the decedent’s primary care physician was Alice Kolasa. Throughout the decedent’s admission to OLOC, Kolasa remained her primary care physician, even though other physicians examined and treated the decedent during her stay … During her 19-day stay at OLOC, the decedent was only seen once by Khokhar, while he was serving as a covering, per diem physician. The decedent’s family asked Khokhar to see the decedent solely with respect to her complaints pertaining to her neck and ribs. When Khokhar saw the decedent for these complaints, he ordered cervical spine and rib x-rays and a complete blood count (hereinafter CBC), which all had negative results. Later in her admission to OLOC, and after she had been seen by Khokhar, the decedent’s condition deteriorated … Khokhar, who was the decedent’s treating physician during her admission at the hospital, ceased to function in that role upon her transfer to OLOC on May 11, 2009 … it was not until after the decedent was admitted to OLOC that her condition started to deteriorate.”

“Khokhar was not involved in any way in the decedent’s care or treatment from the date of her discharge from the hospital until May 27, 2009, 16 days later, when he saw her for the first and only time at OLOC. At that time, Khokhar saw the decedent in the capacity of a covering, per diem physician. He was not her treating or attending physician. He saw the decedent because of her complaints of neck and rib pain. He conducted a focused examination relating only to those complaints, ordered x-rays of the cervical portion of her spine and her ribs, which were negative, and ordered a CBC, which showed a normal white blood cell count; to wit: no infection. The decedent was otherwise asymptomatic when seen by Khokhar for those specific complaints. Since the OLOC medical records reflected that the decedent’s throat infection and nutrition and hydration already were being addressed by Kolasa as the attending physician, Khokhar appropriately deferred to Kolasa and her team with respect to those issues.”

“Although the plaintiff argues that Khokhar had an obligation to note pressure ulcers found on the decedent, such notations would have, at best, been cumulative to the notes and findings made by Kolasa and her staff prior to May 27, 2009 … There is absolutely no basis articulated by Yurberg [plaintiff’s expert] as to how and why Khokhar’s limited role in addressing the decedent’s specific complaint imposed upon him the obligation of attending physician for the decedent’s total care. Khokhar was at OLOC on May 27, 2009, solely to address the decedent’s immediate complaints of neck and rib pain. He did so by ordering x-rays of the cervical portion of the decedent’s spine and her ribs and by ordering a CBC, all of which were negative … the fact that the decedent had been diagnosed and treated at the hospital before her discharge and by Kolasa during the 16 days prior to Khokhar’s limited, focused examination of the decedent, there has been no proof or claim offered that the decedent’s outcome would have been different had Khokhar treated her as Yurberg suggests.”

“[N]one of Yurberg’s findings and opinions as to Khokhar concluded that he had departed from good and accepted medical practice in his treatment of the decedent to a reasonable degree of medical certainty. To support her conclusory opinions as to Khokhar, the best Yurberg could muster was a departure to a “fair degree of medical of certainty” … Yurberg’s opinion can only be read as finding that the departures ascribed to Khokhar and the harm they allegedly caused lacked the same professional certainty as compared to the departures ascribed to the OLOC defendants.”

“Yurberg, in addition to her opinion being contradicted by the record, failed to respond to DiLorenzo’s unequivocal opinion that, even if Khokhar departed from good and accepted medical practice, such departure was not a proximate cause of the decedent’s injuries or death. Yurberg’s failure to address this crucial point of causation renders her opinion insufficient to raise a triable issue of fact as to Khokhar’s treatment of the decedent … Inasmuch as the plaintiff failed to raise a triable issue of fact as to proximate cause, the Supreme Court should have granted Khokhar’s motion for summary judgment dismissing the complaint insofar as asserted against him.”

Source Rosario v. Our Lady of Consolation Nursing and Rehabilitation Care Center.

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