Senior Trial Partner Jacqueline D. Berger and Senior Associate Daniel P. Borbet successfully obtained Summary Judgment in Queens County Supreme Court on behalf of MCB's client nursing home, which was alleged to have been negligent in the prevention and treatment of the decedent's pressure ulcers, resulting in sepsis and death. Plaintiffs asserted causes of action for violations of the New York Public Health Law, Negligence and Gross Negligence, Wrongful Death, and sought punitive damages for violations of state and federal statutes governing nursing homes.
MCB submitted an Affirmation from an expert in Internal Medicine and Geriatrics, establishing that the nursing home did not depart from the accepted standard of care, the decedent's pressure injuries and subsequent demise were unavoidable and not proximately caused by the nursing home's care and treatment, and that the care and treatment of the decedent did not violate any applicable statutes. In opposition, plaintiffs' expert opined that greater attention should have been provided to the decedent, thereby depriving the decedent of rights in violation of the Public Health Law. In reply, MCB argued that plaintiffs' expert failed to articulate how the alleged deprivations of rights resulted in the alleged injuries and wrongful death, and that the decedent's comorbidities and overall poor health condition rendered skin breakdown unavoidable. MCB also successfully argued that plaintiffs' submission of an Affirmation from a fact witness nurse offering medical opinions regarding the decedent's care and treatment should be disregarded as an unqualified expert opinion.
The Court found that plaintiffs' experts failed to raise a triable issue of fact and offered opinion that was speculative and conclusory, and granted Summary Judgment, dismissing the case against MCB's client nursing home in its entirety.