DEMICHELE v. NURSING CARE CENTER AT MEDFORD INC (2025)

Upon the following papers read on defendant's motion for summary judgment: NYSCEF documents 1 thru 90; it is hereby

ORDERED defendant's motion for summary judgment is denied in its entirety.

Plaintiff, Marguerite A. De Michele, commenced this action on December 9, 2021, to recover damages for personal injuries alleged as a result of defendant's negligence. Plaintiff's complaint alleges negligence, a violation of Public Health Law § 2801-d, and gross negligence against defendant The Nursing Care Center at Medford, d/b/a Medford Multicare Center for Living (hereinafter “Medford Multicare”). Defendant answered on April 8, 2022. Discovery is complete and a note of issue was filed on September 18, 2024. Defendant Medford Multicare Center now moves for summary judgment in its favor and for dismissal of plaintiff's complaint. In support of the motion defendant submits, among other things, the pleadings, an affirmation of counsel, plaintiff's medical records, plaintiff's deposition transcript, the deposition transcript of Melissa Cook, a representative of Medford Multicare, and the expert affirmation of Elias Sakalis, M.D., board certified in internal medicine and geriatrics.

In relevant part, plaintiff presented to Stony Brook University Hospital on August 10, 2021, subsequent to a fall at home two weeks prior. Imaging revealed that she had diffuse osteopenia (weakening density of the bone). On August 12, 2021, plaintiff was discharged from Stony Brook University Hospital and was transferred to Medford Multicare for rehabilitation secondary to impaired mobility, activities of daily living (ADLs) and unsteady gait. Initial assessment at Medford Multicare documented that the 83 year-old plaintiff walked with one to one supervision, needed supervision for physical lift, was mostly non-ambulatory and chair bound. Her fall risk assessment was 10, meaning she was at risk for falls. Plaintiff requires 1 person assist for bed mobility; 2 person assist for transfers; 1 person assist for dressing and locomotion; 1 person assist for toilet use, hygiene and bathing; and supervision for eating. Defendant implemented a care plan which included a call bell; personal items within reach; instruction on safety measures; non-skid shoes; monitor for wandering behaviors; ambulate with assist; dressing and personal care assist; toilet every 2-4 hours as needed; transfer with two person assist with Hoyer; locomotion with assist. Physical therapy and occupational therapy were also ordered. Significantly, a brief interview for mental status (BIMS) assessment performed by RN Alexandria Bet scored 13/15, revealing intact cognition.

On August 13, 2021, physical therapy reported plaintiff's previous history of stroke, COPD, hypertension, UTI, atherosclerotic heart disease and hyperlipidemia. Difficulty during bed mobility was documented, as well as the need for two person assist to stand with rolling walker. Physical therapy was to continue.

On August 13, 2021, plaintiff also met with occupational therapy. It was noted that plaintiff's primary means of locomotion was a wheelchair. It was documented that 2 person assist was needed for transfers from sit to stand. From August 13, 2021 through August 16, 2021 both physical and occupational therapy continued.

On August 16, 2021, at 3:35 p.m. plaintiff fell in her room. Plaintiff was found on the floor, and at 4:00 p.m. NP Kelly Godberson reported that plaintiff went to sit on the bed, missed the bed, and landed on her left hip. Plaintiff testified in her deposition that a nurse with sandy blonde hair, approximately forty years old grabbed her by the shirt collar and flung her, telling her to get in the bed. Plaintiff testified she missed the edge of the bed, her left leg hit the bed and she fell to the floor. Plaintiff testified she did not recall telling anyone at Medford Multicare about this assault/interaction.

At 4:53 p.m. a nursing note reports pain in plaintiff's left hip, her leg was externally rotated and painful to touch. According to the note, plaintiff again reported that she was walking in the room, she went to sit on the bed and fell. EMS was called and plaintiff was transported to Stony Brook University Hospital with a left hip fracture.

At Stony Brook University Hospital x-rays revealed a left hip intertrochanteric fracture. On August 17, 2021, orthopedic surgeon, Dr. Kristin Hopkins performed fixation with Striker Gamma Nail in the femoral canal of the left hip with two interlock screws. On August 23, 2021, plaintiff was transferred to Oasis Rehabilitation and Nursing for restorative rehabilitation.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (see CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Moonilal v Roman Catholic Church of St. Mary Gate of Heaven, 225 AD3d 592, 206 NYS3d 686 [2d Dept 2024]; Morejon v New York City Tr. Auth., 216 AD3d 134, 191 NYS3d 427 [2d Dept 2023]).

Healthcare professionals must exercise due care in caring for patients (see e.g. Nestorowich v Ricotta, 97 NY2d 393, 740 NYS2d 668 [2002]). “The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage” (E.K. v Tovar, 185 AD3d 803, 127 NYS3d 580 [2d Dept 2020]; see Messeroux v Maimonides Med. Ctr., 181 AD3d 583, 121 NYS3d 136 [2d Dept 2020]). To meet its prima facie burden on summary judgment, a defendant in a medical malpractice action must show either that it “did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries” (Joyner v Middletown Med., P.C., 183 AD3d 593, 594, 123 NYS3d 169, 171 [2d Dept 2020]; see Castillo v Surasi, 181 AD3d 786, 121 NYS3d 291 [2d Dept 2020]). In opposition, a plaintiff must “raise a triable issue of fact regarding the element or elements on which the defendant has made its prima facie showing” (Aliosha v Ostad, 153 AD3d 591, 61 NYS3d 55 [2d Dept 2017]; see Stukas v Streiter, 83 AD3d 18, 918 NYS2d 176 [2d Dept 2011]).

Plaintiff here has not alleged medical malpractice. Plaintiff's primary cause of action alleges negligence. The elements of negligence are (1) a standard of care; (2) that defendants breached that standard of care, and (3) that breach was the proximate cause of the injury (Rosen v John Foley Skilled Nursing Facility, 45 AD3d 558, 846 NYS2d 208 [2d Dept 2007]). Defendant argues, relying on the expert opinion of Dr. Elias Sakalis, that there were no failures to exercise reasonable care by Medford Multicare, its staff, agents, servants and /or employees; that with regard to plaintiff's second cause of action that Public Health Law § 2801-3 was not violated (which involves a patient's rights or benefits to provide adequate and appropriate medical care); and third, as to gross negligence “there is no evidence” of intentional or reckless disregard of plaintiff's rights as a nursing home resident.

Dr. Sakalis does opine, to a reasonable degree on medical certainty, to the above conclusions. However, Dr. Sakalis reports plaintiff was “cognitively intact” but opines “that plaintiff's version of events is incredulous.” Issues of credibility cannot be decided in motions for summary judgment. A trier of fact must resolve the issue of whether plaintiff was assaulted or not. Accordingly, defendant has not established a prima facie entitlement to dismissal of any of plaintiff's cause of action.

In any event, plaintiff has, in opposition raised triable issues of fact based upon plaintiff's depostition testimony. In reply, defendant maintains that plaintiff is “incredible as a matter of law.” Despite EMS and medical records to the contrary determinations of credibility are best made by triers of fact, accordingly, defendants’ motion is denied.

Paul M. Hensley, J.