BRAUNSTEIN v. Mt. Sinai Medical Center, et al., Defendants. (2018)

Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered January 19, 2017, dismissing the complaint and all cross claims as against defendants Maimonides Medical Center and Victor Sasson, M.D., unanimously affirmed, without costs.

Plaintiff failed to raise an issue of fact in opposition to defendants' undisputed prima facie showing that they did not depart from the accepted standard of medical and nursing care for patients at risk for bed sores.  Plaintiff's medical expert was qualified to render an opinion (see Limmer v. Rosenfeld, 92 A.D.3d 609, 939 N.Y.S.2d 50 [1st Dept. 2012] ).  However, in detailing the skin care protocol for the prevention of decubitus ulcers, the expert stated the same standard of care as that stated by defendants' experts, and effectively conceded that defendants' experts were correct that the protocol must be tailored to the individual patient's condition, by quoting federal Department of Health and Human Services guidelines advising that “individuals ․ at risk for developing pressure ulcers should be repositioned at least every two hours if consistent with overall patient goals” (see Negron v. St. Barnabas Nursing Home, 105 A.D.3d 501, 963 N.Y.S.2d 101 [1st Dept. 2013] ).

Nor was an issue of fact raised by the expert's opinion that defendants caused the decedent's ulcer by not documenting their records in greater detail or her finding that the failure to document was itself the proximate cause of the ulcers.  A failure to document each element of the skin care protocol does not equate to a failure to perform each element or to a cause of the ulcer itself (see Topel v. Long Is. Jewish Med. Ctr., 55 N.Y.2d 682, 684, 446 N.Y.S.2d 932, 431 N.E.2d 293 [1981];  Rivera v. Jothianandan, 100 A.D.3d 542, 543, 954 N.Y.S.2d 94 [1st Dept. 2012], lv denied 21 N.Y.3d 861, 2013 WL 3215528 [2013] ).

We have considered plaintiff's other arguments and find them unavailing.