OGARRO v. “John Doe, M.D. 1–3,” Defendants. (2018)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered December 7, 2016, which granted defendant St. Luke's Roosevelt Hospital Center's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs, and the motion denied.

While standing in his hospital room, decedent experienced an episode of asystole (a state of no cardiac electrical activity) and collapsed, suffering a cerebral hemorrhage when his head struck the floor.  Plaintiff alleges that defendant hospital failed to properly restrict or supervise decedent's ambulation.

Defendant met its burden of demonstrating its entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).  Defendant submitted affirmations from two medical experts which established that it did not depart from good and accepted medical practice in its assessment of decedent as a low to moderate fall risk or by failing to sufficiently restrict or supervise his ambulation, and that in any event defendant's care and treatment of decedent did not proximately cause his injuries, which resulted from a fall caused by a sudden, unpredictable and unpreventable asystole (see Foster–Sturrup v. Long, 95 A.D.3d 726, 727–728, 945 N.Y.S.2d 246 [1st Dept. 2012] ).

In opposition, plaintiff failed to raise a material issue of fact.  Plaintiff's expert's opinion, that in retrospect, decedent should have been kept in bed, is unsupported hindsight reasoning inappropriate to defeat summary judgment (see Kristal R. v. Nichter, 115 A.D.3d 409, 981 N.Y.S.2d 399 [1st Dept. 2014] ).  Plaintiff's assertion that defendant violated its protocols for fall prevention for moderate risk patients by failing to reinforce the use of the call bell and keeping bed rails up is speculative.  In any event, while a “hospital's failure to abide by its own rule is some evidence of negligence” (Haber v. Cross County Hosp., 37 N.Y.2d 888, 889, 378 N.Y.S.2d 369, 340 N.E.2d 734 [1975] ), plaintiff still must show causation.  Decedent's injuries resulted from a subdural hemorrhage that occurred secondary to a fall caused by an episode of asystole that could not have been anticipated.