Defendant Rivington House-The Nicholas A. Rango Health Care Facility (Rivington House) moves for an order granting summary judgment on the issue of liability and dismissing the complaint, or, in the alternative, granting partial summary judgment (a) dismissing plaintiff Lloyd Osborne's (Osborne) claims related to defendant's alleged failure to (1) prevent or care for Osborne's pressure sores or (2) erect bed rails; or (b) dismissing plaintiff's claims for punitive damages; or (c) dismissing or staying the complaint for failure to file and serve a notice of medical malpractice.

Plaintiff cross-moves for leave, more than 60 days after filing the Note of Issue, to cross-move for summary judgment in its favor on the issues relating to plaintiff's pressure sores.

The complaint alleges that, beginning in or about August 2001 to at least May 2005, when the complaint was filed, plaintiff was a resident of Rivington House, a geriatric center, adult care, and/or nursing home facility located at 45 Rivington Street, New York, New York. The complaint further alleges that defendant failed to take the necessary actions to prevent, and then treat, Osborne's bed or pressure sores, and to keep the side rails (bed rails) up on Osborne's bed to prevent Osborne from falling from his bed. The complaint asserts three causes of action; the first asserts a claim of negligence and it and the second cause of action allege violations of Public Health Law §§ 2801-d and 2803-c, and state and federal regulations governing the provision of health care by nursing homes and long-term care facilities, 10 NYCRR 415.3 and 415.12, and 42 CFR §§ 483.20, 483.25 and 483.40. The third cause of action alleges gross negligence.

In support of its motion for summary judgment, defendant submits the affidavit of Roy J. Goldberg, M.D., a physician licensed to practice medicine in the State of New York, who is board certified in internal medicine and geriatrics, a Certified Medical Director of a Long-Term Care Facility and an Associate Professor of Medicine at the Albert Einstein College. Dr. Goldberg states that his opinions are based upon review of the pleadings, medical records and other documents in the case, including plaintiff's verified bill of particulars and supplemental bill of particulars, the census of Rivington House, the Rivington House Chart, August 7, 2001-April [*2]2, 2006, the investigative report regarding Osborne's fall from his bed, a Beth Israel Medical Center chart and the Rivington House policies and procedures, and the deposition testimony of Jermoa Biga, Dr. Starett, Dr. Rodrigue Joseph, Rita Griffiths, Jeanne Kalinowski, Robert Osborne and Lloyd Osborne.^[FN1] Dr. Goldberg states:

5. It is my opinion that it would not be possible to determine, within a reasonable degree of medical certainty, that the allegedly negligent actions and omissions of the defendant caused or contributed to the development of the plaintiff's foot ulcers. The plaintiff would have been prone to develop such ulcers in any event as a result of his preexisting nutritional problems, incontinence, bilateral paraesthesia, neuropathy, contractures and chronic deep vein thrombosis (DVT).

6. Further, there would have been no need to position or turn this patient because he was otherwise mobile, although not ambulatory.

7. With regard to plaintiff's claim that defendant failed to erect proper bed rails or otherwise apply restraints to this patient, the use of bed rails and restraints must be ordered by a physician. In this instance, there is no record in the nursing home chart or care plan that a physician ever ordered that bed rails be erected. Furthermore, it is my opinion, within a reasonable degree of medical certainty, that bed rails were not appropriate in this instance. The bed was in the low position, and a rear call bell was available to the patient.

Defendant specifically refers to the deposition testimony of Osborne's treating physician, Dr. Rodrigue Joseph, who testified that ulcers can result from systemic disease and that Osborne was at risk to develop skin ulcers, because he was having leg contraction and his heel was always compressed against a wheelchair.

In response, plaintiff argues that Dr. Goldberg's affidavit must be rejected as deficient, because he fails to attach his curriculum vitae, fails to attach Osborne's medical records, and fails to detail the factual basis on which he reaches his conclusions. Plaintiff submits the affidavit of Eric MuÑoz, M.D., who states that defendant generally departed from standards of good and accepted practice by failing to maintain Osborne's skin integrity, make proper physical assessments, utilize an air mattress or other pressure relieving devices, or rotate his body on a timely basis. See MuÑoz Affidavit, ¶ 9. Based upon Osborne's medical records, MuÑoz details Osborne's repeated transfers between Rivington House and several hospitals including Bellevue Hospital, St. Vincent's Hospital, and Beth Israel Medical Center, and the development and progression of his various pressure sores, not just on his heel, as mentioned by Dr. Goldberg, but on his buttocks, and the inadequate treatment of those pressure sores. Id., ¶¶ 21-30.

It is not clear from Dr. MuÑoz's affidavit whether the pressure sores were contracted while Osborne was in Rivington House or during his various hospital stays. Nonetheless, the [*3]affidavits of Drs. MuÑoz and Goldberg and the deposition testimony of Dr. Joseph present the sort of conflicting evidence that preclude the granting of summary judgment to defendant, particularly in light of the lack of specificity in Dr. Joseph's affidavit.

Defendant further contends that, although plaintiff has not filed and served a notice of medical malpractice, his case is one that sounds in medical malpractice. According to defendants, neither of the two medical experts identified by plaintiff in his response to defendant's request for disclosure of medical experts, Mark S. Stern, M.D. or Charlotte Sheppard, R.N., will testify to any departures from the appropriate standard of care, which testimony is required to prevail on a medical malpractice case. Defendant argues that for these reasons the case should be dismissed, or at least stayed, until plaintiff files and serves a notice of medical malpractice.

Although, as a general matter, "[w]hen the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence" (Halas v Parkway Hosp., Inc., 158 AD2d 516, 516 [2d Dept 1990]), a personal injury action against a medical practitioner or medical facility may also be based on negligence principles. Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 (1st Dept 1986). Negligence principles are applicable where "the alleged negligent act may be readily determined by the trier of the facts based on common knowledge." Id. A patient in a residential health care facility may also have a statutorily based cause of action for damages where the facility deprives the patient of any right or benefit

created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation, ... where noncompliance by said facility with such statute, code, rule or regulation has not been expressly authorized by the appropriate governmental authority.

Plaintiff relies on both state and federal regulations, which provide that residential facilities must ensure that a patient who enters without bed sores does not develop them unless, because of the patient's clinical condition, the bed sores were unavoidable and the facility made every reasonable effort to prevent them, and if bed sores do develop, the patient must receive the proper treatment to promote healing, prevent infection and prevent further sores from developing. See 10 NYCRR 415.12 (c), 42 CFR § 832.25 (1). Therefore, with respect to the claims regarding pressure or bed sores, plaintiff has stated a cause of action pursuant to the Public Health Law, and the branch of defendant's motion to dismiss or stay the action for failure to file and serve a notice of medical malpractice is denied.

Plaintiff cross-moves for leave to file a late summary judgment motion in his favor on the issue of his pressure sores.

An untimely cross motion for summary judgment may be considered when a timely motion for summary judgment has been filed on identical or nearly identical grounds. Grande v Peteroy, 39 AD3d 590, 591-592 (2d Dept 2007). Here, since defendant has moved for summary judgment on the basis of medical malpractice, and plaintiff is moving for summary judgment on the basis of its statutory claims, the motion and cross motion are not identical or nearly identical. [*4]Nonetheless, in the course of deciding a timely summary judgment motion the court may search the record. Id.

In any case, here, the court concludes that, as discussed above, the very evidence submitted by plaintiff raises questions about whether he contracted the pressure sores at the defendant's facility or at one or more of the hospitals he visited. In addition, there are conflicts in the evidence presented by the parties' experts as to whether adequate treatment for the pressure sores was provided, once they developed. For these reasons, plaintiff's cross motion for leave to file a late cross motion for partial summary judgment is granted, but his motion for partial summary judgment is denied.

With respect to defendant's alleged failure to erect bed rails to prevent Osborne from falling, Dr. Goldberg suggests that the use of bed rails must be ordered by a physician to be the basis of liability against a health-care provider (Goldberg Affidavit ¶ 7). However, while a hospital can certainly be held liable for failing to follow a physician's order to use bed rails, it can also be held liable for failing to provide bed rails if its employees had notice that the patient's condition required their use. Alaggia v North Shore Univ. Hosp., 92 AD2d 532, 533 (2d Dept 1983).

Regarding defendant's assertion that plaintiff's claim sounds in medical malpractice, rather than negligence, there is considerable case law discussing that distinction. For example, a hospital's failure to equip a bed with bed rails in compliance with a doctor's order raises a question of negligence, whereas a failure to use bed rails where there is no doctor's order generally raises a question of medical malpractice. Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, supra; see also Fox v White Plains Med. Ctr., 125 AD2d 538 (2d Dept 1986)(improper assessment of plaintiff's condition and degree of supervision needed, particularly with regard to ability to ambulate post-operatively, is question of medical malpractice, not negligence).

[T]he evaluation of decedent's condition and risk of falling, the related implementation of measures designed to address the potential for such an occurrence and the adequacy, or lack thereof, of such preventative measures, necessarily implicate the professional skill and knowledge of the practitioner or the medical facility' and, therefore, require the court to apply the more specialized theory of medical malpractice.'"

In Halas v Parkway Hosp., Inc. (158 AD2d 516 [2d Dept 1990]), however, the Court concluded that where a 79 year-old patient who was weak, appeared chronically ill, and had a 105 degree fever, fell from his bed to the floor when his bed rails were in a down position, the complaint sounded in ordinary negligence, rather than medical malpractice. There, the court noted that the patient's condition was delicate and a risk of harm was recognized, therefore, the gravamen of the complaint did not involve diagnosis or treatment or the failure to follow a physician's instructions, but rather related to conduct that could be readily assessed based on common everyday experience. Id. at 517. [*5]

Here, there is no evidence that Osborne's condition was as extreme as that of the plaintiff in Halas. Although Dr. MuÑoz does refer to Osborne's propensity for falls, the falls he mentions occurred in October 2001 (see MuÑoz affidavit, ¶ 17), while the fall which resulted in Osborne's injury occurred three years later, on December 8, 2004 (see id., § 30). Unlike the issue of pressure sores, plaintiff does not cite any state or federal regulations specifically requiring physical restraints such as bed rails in support of his statutory cause of action. Although in addition to noting Osbourne's propensity for falls, Dr. Munoz does point to parts of his medical records which indicate a decline in physical and cognitive functioning in June, 2004, it cannot be said based on Munoz's affidavit, that Osborne's condition in December, 2004 demonstrated a need for protective bed rails which was so obvious that the question of alleged negligence can be determined by a jury without the aid of expert witnesses. Thus, this court concludes, as did the court in D'Elia, that the question of whether defendant improperly failed to erect bed rails on Osborne's bed is one that sounds in medical malpractice as it involves an evaluation of Osborne's condition and his risk of falling, and implicates " the professional skill and knowledge of the practitioner or the medical facility'" (D'Elia v Menorah Home and Hosp. for the Aged and Infirm, supra, at 10).

As to defendant's motion for summary judgment dismissing the cause of action for negligence in connections with the claims regarding the lack of bed rails, defendant argues that absent a physician's order, plaintiff has failed to establish that defendant departed from good and accepted medical practice. Defendant further argues that it has established a prima facie case for summary judgment as Dr. Goldberg opined that bed rails were not necessary as "[t]he bed was in the low position, and a rear bell was available to the patient" ¶ 7 and that the proximate cause of the fall was not the lack of bed rails but Osborne's failure to use the call button.

Plaintiff argues that Dr. Goldberg fails to state any factual or medical support for his opinion and thus, defendant has failed to make out a prima facie entitlement for summary judgment. While plaintiff points generally to the affidavit of Dr. Munoz, it appears that the following opinions of Dr. Munoz are arguably relevant to the issue involving the bed rails, that defendant "departed from good and accepted practice...in failing to develop a comprehensive care plan...take proper cognizance of his diminished ability to move unassisted and his diminished cognitive status...in failing to provide a proper physical assessment...in failing to provide proper protocol in restraining Mr. Osborne." ¶ 9 In support of this opinion, Dr. Munoz stated that the nursing home records indicate that in or about June, 2004 "Mr. Osborne began to demonstrate a decline in both physical and cognitive functioning. He required more assistance with his daily care, including bed mobility and even required extensive assistance with eating." ¶ 27. Dr. Munoz further stated that although "Lloyd Osborne sustained multiple un- witnessed falls while residing at Rivington House; yet Care Plans for fall prevention were not implemented or updated in a timely manner when falls continued to occur. Staff relied on this cognitively impaired gentleman to routinely summon their assistance for his needs when his needs should have been anticipated." ¶ 32

Based on the conflicting affidavits, this court concludes that an issue of fact exists as to whether defendant departed from good and accepted practice in not ordering the use of bed rails, and defendant' motion for summary judgment must be denied.

Turning to defendant's argument that plaintiff has not served and filed a notice of medical [*6]malpractice action, as required by CPLR §3406 (a) and 22 NYCRR 202.56, as discussed above, the issue regarding whether plaintiff's action is grounded in negligence or medical malpractice has been raised and decided in the instant motion. Under these circumstances, as Dr. Munoz's affidavit addresses inter alia the medical malpractice issues, to require a separate notice serves no purpose, and this court deems his affidavit sufficient to satisfy the notice provisions of the CPLR and court rules.

Finally, defendant moves for summary judgment to dismiss plaintiff's third cause of action for punitive damages based upon gross negligence. The standard for establishing punitive damages in a medical malpractice case is a stringent one: "Punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces a high degree of moral culpability, [or constitutes] willful or wanton negligence or recklessness.'" Hill v 2016 Realty Assoc., 42 AD3d 432, 433 (2d Dept 2007)(citations omitted).

Punitive damages are available pursuant to Public Health Law § 2801-d, however, "where the deprivation of any ... right or benefit [as defined by the statute] is found to have been willful or in reckless disregard of the lawful rights of the patient...." This would appear to be a less stringent standard than that under the law governing medical malpractice. It is premature to determine whether that standard has been met here. Therefore, defendant's motion is denied with respect to plaintiff's third cause of action.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that defendant's motion for summary judgment is denied; and it is further

ORDERED that plaintiff's cross motion for leave to file a late motion for partial summary judgment on the issues of departure and causation relating to plaintiff's pressure sores is granted as to the extent that filing of the motion is permitted, and is otherwise denied.

Dated: April 15, 2008

ENTER:

__________________________

J.S.C.