When a resident of a nursing home suffers from severe pressure ulcers any claim against the facility may initially seem indefensible. But careful evaluation of the record may very well show that not to be the case. If there was a well thought out care plan followed appropriately by the staff under the supervision of physician, what seems indefensible may not look like such a bad case at all. Investing in an expert is also advisable. If the expert confirms there was no deviation in the standard of care, the claim may be candidate for summary judgment — what seems indefensible may turn out a case where there was no deviation in the care of the resident.
This was shown in an action to recover damages for medical malpractice, lack of informed consent, and violations of the patient’s rights as a nursing home resident under Public Health Law §§ 2801-d and 2803 against defendant nursing home. Erik Newberg et al. v Glenhaven Health Care Organization et al, Suffolk County Supreme Court (Reilly, J.), Index no. 033963/2010 (July 19, 2022). In Newberg, the gravamen of the complaint was that the staff at its facility was negligent and departed from good and accepted medical practice in its care and treatment of pressure ulcers suffered by the decedent. Plaintiff alleges that the staff at the facility, by failing to properly assess, diagnose, evaluate, supervise, and monitor the decedent, caused and exacerbated the condition of two pressure ulcers, a right leg pressure ulcer, and a Stage IV decubitus osteomyelitis and clostridium difficile, which required a vacuum-assisted (“VAC”) closure of the wound and a rectal tube.
Jan Lorrie Newberg (“Lorrie”) was a patient at Glenhaven in 2008. Lorrie filed suit in against Glenhaven on allegations of improper treatment, professional negligence, lack of informed consent and violation of Public Health Law Section 2801-d. Jan Newberg passed away in 2013 and his son Erik Newberg (“Erik”) substituted in as administrator and personal representative of Jan’s Estate to prosecute this action.
In the Decision rendered on July 18, 2022, the Honorable David T. Reilly of the Supreme Court, Suffolk County, granted Glenhaven’s motion for summary judgment. In a lengthy, well-reasoned opinion, Judge Reilly methodically laid out the salient facts including Jan Newberg’s multiple debilitating co-morbidities present upon admission to Glenhaven in November 2007. The Court placed special emphasis on Lorrie’s preexisting Stage 4 Hodgkin’s Lymphoma and fungal skin infections. The Court also recognized that Lorrie presented to Glenhaven with a Stage IV sacral skin ulcer over the left buttocks/sacrum and ulcers on the heel of each foot.
The Court ruling further recounted Glenhaven’s varied efforts to address and treat Lorrie’s skin wounds during the admission. The Glenhaven interventions included multiple wound care assessments, prescribing a myriad of medications, instituting a low air mattress and debridement procedures.
The Court found Glenhaven’s evidentiary submissions, most prominently the affidavit of expert Barbara Tommasulo, M.D., a board-certified internist/geriatric and wound care specialist, established prima facie that Glenhaven did not deviate from good and acceptable medical practice in the care rendered Lorrie. The Court also concluded the treatment Glenhaven provided Lorrie during the admission did not proximately cause any injuries Lorrie sustained.
As Glenhaven met its initial burden for summary judgment, the Court turned to analyze Newberg’s opposition including the affidavit of medical expert. As readily evident in the written opinion, the Court effectively excoriated the expert affidavit as conclusory, speculative and without factual basis in the record. The Court zeroed in on the fact that the expert failed “to state what preventative care or therapies Glenhaven should have employed to prevent and treat Jan Newberg’s pressure wounds or how the treatment that Glenhaven did carry out failed to meet the accepted standards of care.” The Court further determined that the defense failed “to establish that any act or omission on behalf of Glenhaven, and not the natural progression of Jan Newberg’s medical conditions, was a substantial factor in producing the injuries sustained by plaintiff’s decedent (Lorrie).” As a result, the Court granted Glenhaven summary judgment dismissal of Newberg’s nursing home malpractice cause of action.
The Court likewise dismissed in full Newberg’s Public Health Law cause of action. The Court held Glenhaven’s forensic medical expert and the Facility records established no violation of any contract, statute, rule or regulation, and that Jan Lorrie was not injured by any such violation. Again, the Court emphasized that plaintiff’s opposition failed to identify any specific Glenhaven action or inaction that violated any regulation or statute that led to Lorrie’s injuries.
Finally, the Court quickly dismissed plaintiff’s lack of informed consent cause of action for the simple reason that Lorrie signed consent forms to undergo all treatment deemed necessary while a patient at Glenhaven.
Of course, the result Newberg does not mean that any bed sore case, if carefully investigated, will result dismissal of any claims that the nursing home deviated from the standard of care required of such facilities. What the case does show, however, is that simply the fact of severe bed sores does not mean that a plaintiff will be able to establish malpractice against the nursing home. As we have shown in Newberg, nursing homes are required to have care plans and carefully follow these plans under the supervision of a physician. There may be instances where the care plan was inadequate or was not followed properly. But the severity of the injury does not necessarily mean the deviation in the standard of care. Residents with comorbidities may not recover completely no matter how carefully they are treated by their caregivers.
