Garbarini & Scher, P.C., New York, NY (William D. Buckley
of counsel), for appellant Brooklyn Hospital Center.
P.C., New York, NY (Martin B. Adams of counsel), for
appellant Lenox Hill Hospital.
& Associates, PLLC, New York, NY (Judith E. Crumpton of
counsel), for respondent.
PRISCILLA HALL, J.P., JEFFREY A. COHEN, BETSY BARROS,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
consolidated action to recover damages for medical
malpractice, the defendant Brooklyn Hospital Center appeals,
as limited by its brief, from so much of an order of the
Supreme Court, Kings County (Jacobson, J.), dated June 27,
2014, as denied its motion for summary judgment dismissing
the complaint insofar as asserted against it, and the
defendant Lenox Hill Hospital separately appeals, as limited
by its brief, from so much of the same order as denied its
motion for summary judgment dismissing the complaint insofar
as asserted against it.
that the order is affirmed, with one bill of costs.
plaintiff's decedent was admitted to the defendant
Brooklyn Hospital Center (hereinafter Brooklyn Hospital) in
September 2006. She was characterized as having a
"longstanding and extensive prior medical history"
that included, among other things, congestive heart failure,
cardiomyopathy, hypotension, diabetes, rheumatoid arthritis,
a poor history of medication and treatment compliance, and
having been bedbound since 2000. She was dependent on others
for all activities of daily living, including turning in the
bed and spoon-feeding of her meals. During her initial
admission to Brooklyn Hospital, she developed what became a
stage IV sacral decubitus ulcer. The ulcer appeared to grow
and worsen during five subsequent admissions to Brooklyn
Hospital and two admissions to the defendant Lenox Hill
Hospital (hereinafter Lenox Hill), all of which occurred
between October 2006 and May 2007. The plaintiff's
decedent died on February 10, 2008, at the Brooklyn Hospital.
An autopsy report prepared at the request of her family by
the Office of the New York City Medical Examiner documented
her cause of death as "hypertensive and atherosclerotic
cardiovascular disease, " and lists the manner of death
plaintiff commenced separate actions sounding in medical
malpractice and loss of society/companionship against
Brooklyn Hospital and Lenox Hill, alleging that they failed
to properly monitor and treat the plaintiff's
decedent's numerous pressure ulcers. After the actions
were consolidated, the defendants separately moved for
summary judgment dismissing the complaint insofar as asserted
against each of them. In support of their motions, the
defendants submitted, among other things, separate expert
affirmations from expert physicians, in which those
physicians opined that the plaintiff's decedent's
comorbidities, and not the negligence of each of the
defendants, respectively, proximately caused the
plaintiff's decedent's injuries. In opposition, the
plaintiff submitted, among other things, expert affirmations
from an unnamed physician who disputed the defendants'
experts' opinions, and opined with a reasonable degree of
medical certainty that the defendants departed from the
standard of care in treating the plaintiff's
decedent's pressure ulcers, and that their departures
proximately caused her injuries. The Supreme Court denied
both defendants' motions, and the defendants separately
defendants each established their prima facie entitlement to
judgment as a matter of law dismissing the complaint insofar
as asserted against each of them through the expert
physicians' affirmations, wherein they opined with a
reasonable degree of medical certainty that the defendants
did not depart from the standard of care in their treatment
of the plaintiff's decedent's pressure ulcers, and
further opined that the plaintiff's decedent's
pressure ulcers were "unavoidable" and caused by
the plaintiff's decedent's numerous comorbidities
(see Whitnum v Plastic & Reconstructive Surgery,
P.C., 142 A.D.3d 495, 497, quoting Geffner v North
Shore Univ. Hosp., 57 A.D.3d 839, 842).
opposition, the plaintiff raised a triable issue of fact by
submitting an expert affirmation from a physician, who opined
with a reasonable degree of medical certainty that the
defendants departed from the accepted standard of care
(see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).
Contrary to the defendants' contention, the
plaintiff's expert was qualified to render an opinion on
the standard of care for the plaintiff's decedent. The
plaintiff's expert affirmed that she was "thoroughly
familiar with the standards for the prevention and treatment
of decubitus ulcers and skin ulcers existing for the dates of
the admissions to the hospitals in this action" and
supported her statements as to the standard of care
applicable in this case with numerous medical journals and
textbooks, excerpts from which were attached to her
affirmation as exhibits. "Any lack of skill or
expertise" that the plaintiff's expert may have had
"goes to the weight of his or her opinion as evidence,
not its admissibility" (Erbstein v Savasatit,
274 A.D.2d 445, 445).
judgment is not appropriate in a medical malpractice action
where the parties adduce conflicting medical expert
opinions" because "[s]uch conflicting expert
opinions will raise credibility issues which can only be
resolved by a jury" (DiGeronimo v Fuchs, 101
A.D.3d 933, 936). In light of the conflicting expert opinion
submitted here, the Supreme Court properly denied the
defendants' separate ...