SCHLAGER v. HOSPITAL FOR SPECIAL SURGERY (2024)

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered October 12, 2023, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established entitlement to judgment as a matter of law in this action where plaintiff Herbert Schlager, after undergoing knee surgery the day before, fell from his bed.  The court correctly found that defendant's experts showed that defendant's staff had adhered to the accepted standards of medical care in its fall risk assessment of plaintiff and properly implemented those procedures (see Boltyansky v. New York Community Hosp., 175 A.D.3d 1478, 1478, 108 N.Y.S.3d 188 [2d Dept. 2019]).

In opposition, plaintiffs failed to raise a triable issue of fact.  Their expert failed to opine as to a deviation in the standard of care.  While the expert opined that defendant was negligent in failing to set the bed at its lowest level, this claim was contradicted by plaintiff's medical records, which repeatedly note that the bed was in the lowest position (see Homan v. David Seinfeld, M.D., PLLC, 164 A.D.3d 1147, 1148, 82 N.Y.S.3d 413 [1st Dept. 2018]).