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Senior Trial Partner Michael A. Sonkin, Partner Amy E. Korn, and Associate Elizabeth C. Athy secured Summary Judgment on behalf of a physician defendant in a Kings County medical malpractice action arising from a fatal fall at an assisted living facility. The plaintiff alleged that MCB’s client physician failed to adequately assess and manage the resident’s fall risk, failed to ensure implementation of fall-prevention measures, failed to follow up on recommendations for increased supervision, failed to secure physical therapy services, and failed to recommend transfer to a higher level of care. Plaintiff claimed alleged departures led to an unwitnessed fall that resulted in catastrophic injuries
In moving for Summary Judgment, MCB established that the physician’s role was limited to evaluating the resident when requested and communicating medical findings and recommendations to facility staff. MCB demonstrated that the physician was not employed by the assisted living facility, had no authority to direct facility personnel, determine room placement, implement supervision plans, review facility records, or require transfer to another facility. MCB further established that the client physician repeatedly recognized the resident’s fall risk and appropriately recommended physical therapy, mobility assistance, monitoring for falls, and one-to-one supervision. The motion also argued that the plaintiff’s statutory and negligence per-se claims were legally unsupported and unopposed.
In opposition to the motion, the plaintiff submitted expert testimony contending that MCB’s client physician had a duty not only to assess the patient and make recommendations, but also to ensure that the assisted living facility implemented those recommendations, to follow up with facility staff regarding compliance, to recommend alternative interventions if recommendations were not followed, and to facilitate transfer to a skilled nursing facility. Plaintiff’s expert also asserted that the physician should have taken additional steps regarding supervision, monitoring, and physical therapy.
The Court rejected plaintiff’s arguments and granted Summary Judgment dismissing all claims against MCB’s client physician. The Court held that MCB’s client physician’s role was limited to assessing the resident’s condition and making appropriate recommendations, not directing or ensuring how the assisted living facility implemented those recommendations. The Court further found that the plaintiff’s expert opinions regarding duty and causation were conclusory, speculative & contradicted by the record.