February 25, 2014
Joyce Wong, etc., Plaintiff-Appellant,
German Masonic Corporation, doing business as Dumont Masonic Home, Defendant-Respondent, Igor Israel, M.D., et al., Defendants. German Masonic Corporation, doing business as Dumont Masonic Home, Third-Party Plaintiff-Respondent, Geriatric Services, P.C., Third-Party Defendant, Nataliya Gorelko, M.D., Third-Party Defendant-Respondent.
Tha Adam Law Office, P.C., New York (Richard Adam of counsel), for appellant.
Ptashnik & Associates, LLC, New York (Richard M. Fedrow of counsel), for German Masonic Corporation, respondent.
DeCorato Cohen Sheehan & Federico LLP, New York (Kari Merolesi of counsel), for Nataliya Gorelko, M.D., respondent.
Sweeny, J.P., Andrias, Moskowitz, DeGrasse, Gische, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 22, 2012, which granted defendant German Masonic Corporation d/b/a Dumont Masonic Home's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Plaintiff's decedent, Fredeswinda Wong, was brought to Jacobi Hospital for treatment of smoke inhalation due to a fire in her apartment. Decedent suffered from, inter alia, hypertension and chronic obstructive pulmonary disease, and dementia due to Alzheimer's disease. In early February 2005, decedent was transferred from Jacobi to defendant Dumont Masonic Home for rehabilitation. Both Jacobi and Dumont had taken EKGs that revealed that decedent had tachycardia (rapid heartbeat). At about 3:15 a.m. on March 25, 2004, decedent was sitting up in her room, attempting to get dressed, and in an agitated state. The nurse contacted Nataliya Gorelko, M.D., the on-call physician, who prescribed 1 mg. of Haldol to be given intramuscularly for decedent's agitation. The Haldol was administered at 3:40 a.m., and decedent passed away at 5:05 a.m.
Defendant established prima facie entitlement to summary judgment, which plaintiffs, by their expert, failed to rebut. In arguing that decedent, among other things, should have been transferred to a hospital for adequate care of her heart condition, plaintiff failed to demonstrate that inadequate care was rendered to decedent at the Dumont Home. The record shows that decedent improved during her stay (see Rivera v Greenstein, 79 A.D.3d 564 [1st Dept 2010]). Further, while plaintiff's expert pathologist performed an autopsy and concluded that decedent passed away from congestive heart failure, decedent's medical records at the nursing home showed no signs of congestive heart failure, although tests had been performed. Thus, even though plaintiff's expert found congestive heart failure in his autopsy, there is no basis for finding that Dumont or its staff should have had notice of it. As in Rivera, "the autopsy gives the benefit of hindsight that defendant, of course, did not have" (id. at 569).
Further, while plaintiff's expert opined in conclusory terms that Haldol was contraindicated for patients with tachycardia and arrhythmia, decedent did not have arrhythmia and, moreover, plaintiff's expert failed to demonstrate that the intramuscular injection of Haldol increased decedent's heart rate. The medical records show that after the Haldol was administered to decedent, her heart rate actually slowed down. Thus, plaintiff failed to demonstrate that any departure on defendant's part proximately caused decedent's death (see Sassen v Lazar, 105 A.D.3d 410 [1st Dept 2013]).
We have considered plaintiffs' remaining contentions and find them unavailing.