The New York Supreme Court Appellate Division, First Department (“New York Appellate Court”) held in its decision dated November 9, 2021 in a nursing home bedsore case: “Since defendant did not meet its initial burden on its summary judgment motion, there is no need to consider the sufficiency of plaintiff’s opposition papers.”
The plaintiff’s decedent was admitted to Terrence Cardinal Cooke Health Center (TCC), a nursing and rehabilitation center, for short-term rehabilitation following a spinal compression fracture. During her three-month admission period at TCC, decedent, among other things, became so malnourished and dehydrated as to develop acute kidney injury. She died approximately three months after being transferred out of TCC. Plaintiff, as administrator of decedent’s estate, asserted causes of action based on violation of Public Health Law §§ 2801-d and 2803-c, negligence, and wrongful death.
Defendant subsequently moved for summary judgment, relying on the expert affirmation of Lawrence N. Diamond, M.D., and plaintiff submitted the expert affidavit of Thomas Perls, M.D., in opposition. The court granted defendant’s motion in part, dismissing all claims and causes of action, “other than those claims relating to the formation, care and treatment of bedsores,” which the court found involved triable issues of fact. The plaintiff appealed.
The New York Appellate Court held: “We disagree to the extent that we find that defendant failed to sustain its initial burden in demonstrating entitlement to judgment as a matter of law on plaintiff’s other claims. In his expert affirmation, Dr. Diamond denied, in conclusory terms, plaintiff’s allegations regarding TCC’s negligent care of decedent during her admission period, particularly with respect to her nutrition and hydration. He failed to sufficiently explain the rapid decline of decedent’s nutritional levels, which were within normal limits upon her admission to TCC, as well as troubling inconsistencies in her medical record regarding the monitoring of her weight. He did not specify what affirmative steps TCC took to address decedent’s continued weight loss and dehydration, or how the resulting kidney damage and related health issues were not a contributing factor to her death three months later. “Bare conclusory denials of negligence without any factual relationship to the alleged injuries, and the submission of the affidavit of a medical expert which fails to address the essential factual allegations set forth in the complaint are insufficient to establish that defendant is entitled to summary judgment” (Wasserman v Carella, 307 AD2d 225, 226 [1st Dept 2003]). Accordingly, summary judgment as to the negligence and wrongful death claims should have been denied.”
The New York Appellate Court further held: “Defendant’s expert’s bare denial of the allegations also failed to establish, prima facie, that TCC did not violate any contract, statute, regulation, code or rule, and that the decedent was not injured by such violation, to warrant dismissal of plaintiff’s claims under Public Health Law § 2801-d.”
Source Cortez v. Terrence Cardinal Cooke Health Care, 2021 NY Slip Op 06078.
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