BRADLEY v. ST BARNABAS HOSPITAL (2024)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about June 8, 2022, which, to the extent appealed from as limited by the briefs, denied the defendant St. Barnabas Hospital's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss plaintiff's cause of action for wrongful death, and otherwise affirmed, without costs.

Plaintiff's expert created questions of fact as to whether defendant deviated from the standard of care in the manner in which it treated and attempted to prevent decedent's skin ulcers (see Pichardo v St. Barnabas Nursing Home, Inc., 134 AD3d 421 [1st Dept 2015]).  The expert relied upon defendant's medical records of decedent's care, which have multiple lapses of documentation as to what skin care protocol was being employed and whether that protocol was followed (compare Braunstein v. Maimonides Med. Ctr., 161 AD3d 675 [1st Dept 2018]).  Defendant is correct, however, that plaintiff's expert's opinion was speculative and conclusory as to how the skin ulcers led to decedent's death from pneumonia secondary to renal disease and hypertension, and thus plaintiff failed to adequately create a question of fact as to his wrongful death cause of action (compare Reape v. NCRNC, LLC, 213 AD3d 538 [1st Dept 2023]).