Plaintiff Raymond Bush, as Executor of the Estate of decedent Alfred Bush is

suing defendant, Cobble Hill Health Center, Inc. (Cobble Hill), for decedent's personal injuries and wrongful death due to defendant's negligence, pursuant to Public Health Law (PHL), § § 2801-d, 2803, and common law negligence, during the period in 2002 when decedent was a patient at Cobble Hill's nursing home, in Brooklyn, New York. Defendant moves for summary judgment, pursuant to CPLR Rule 3212, and dismissal of the complaint, claiming that decedent Alfred Bush received proper care while a patient at Cobble Hill. Plaintiff cross-moves for partial summary judgment on liability, pursuant to CPLR Rule 3212. There are triable issues of fact. Therefore, both defendant's motion and plaintiff's cross-motion are denied.

Dr. Denton claimed that Mr. Bush, while a patient at Cobble Hill, had stable vital signs, including normal white blood cell count and BUN, demonstrating hydration. He further claims that while Mr. Bush's weight fluctuated at Cobble Hill, "no significant weight loss occurred while a resident of Cobble Hill [¶ 10]," and that Mr. Bush received appetite stimulants and nutritional supplements at Cobble Hill. Dr. Denton notes that LICH failed to conduct various blood tests, such as an albumin test, upon decedent's admission to LICH, which would have documented his nutritional status. Three weeks after his LICH admission, on October 23, 2003, blood tests showed that Mr. Bush's albumin level was very low, at 2.3, but Dr. Denton admits in ¶ 8 of his affirmation that

"the metastatic condition he suffered would have affected all areas of his health including his nutrition. At this time, his bone marrow was not effectively functioning." Further, Dr. Denton concludes, in ¶ 9, that Mr. Bush's "red blood cell counts are within normal range for this patient and upon admission to Long Island College Hospital, indicate that the resident's general health was acceptable. His BUN and creatinine levels were normal thus this resident was not dehydrated upon admission to Long Island College Hospital [sic]."

Defendant, relying upon Dr. Denton's affidavit, contends that Mr. Bush did not

suffer with sepsis while at Cobble Hill and that Cobble Hill took all necessary steps to prevent and treat any infection during Mr. Bush's residency. Dr. Denton's claims, in ¶ 12 of his affirmation, that "[d]uring Mr. Bush' s stay at Cobble Hill he utilized a Foley catheter for urine retention. Care was rendered to the catheter each shift and this catheter waschanged every month to avoid infection." Dr. Denton continues, in ¶'s 13 and 14, that:

13. On October 4, 2002 laboratory values were received at the

Cobble Hill facility. White blood cells were found in the urine. [*3]

He was not septic at the time.14. Only on October 11, 2002 at Long Island College Hospital,

after a specialty consult was completed by a gastrointestinal

specialist, did the medical record maintained by Long Island

College Hospital document urine retention, fever and infection.

This occurred days after Mr. Bush was admitted to the hospital.

His general condition had worsened by this time [sic].

Further, Dr. Denton contends that the care that Mr. Bush received with respect to

the prevention and treatment of decubitus ulcers, when they formed, was well within accepted standards of medical care. Dr. Denton noted, in his affirmation, that most of Mr. Bush's wounds and other skin conditions healed at Cobble Hill. He observed, in ¶ 21 of his affirmation, that a November 7, 2002 LICH skin care note, more than one month after he left Cobble Hill:

documents larger and deeper stage II, possibly stage III, ulcers which

were not unexpected considering Mr.Bush's non-ambulatory status.

He suffered scrotal edema but this would have been expected since he had radiation seeds placed prior to his admission to the Cobble Hill facility in

an effort to fight the prostate carcinoma and by this time, his mobility

had decreased greatly.

With respect to Mr. Bush's fracture of the right humerus, the depositions of various Cobble Hill staff members, Mr. Bush's daughter, Lorraine Reddy, as well as Dr. Denton's affirmation, all show that after Ms. Reddy reported, on September 30, 2002, that her father felt a "pop" in his shoulder, X-rays were taken of both shoulders, which showed no apparent fracture, but the presence of osteoarthritis. The shoulder was swollen. Painkillers were administered to Mr. Bush. On October 3, 2002, after Mr. Bush reported that he was uncomfortable and had severe right shoulder pain, he was transferred to LICH. Cobble Hill contacted Mr. Bush's family. Dr. Denton, in ¶ 25 of his affirmation, states that "[t]his demonstrates prompt and appropriate response to a possible

fracture of the humerus." Defendant contents that the right humeral fracture was not the cause of Mr. Bush's death. Dr. Denton concludes, in ¶ 25 of his affirmation, that "[t]he records of the Cobble Hill facility are well maintained and the decline of the resident is clear . . . Mr. Bush was admitted to the Cobble Hill facility on a down-hill course.'" Finally, Dr. Denton, in ¶ 26, opines that the primary cause of death was metastasized prostate cancer and that "Mr. Bush's death is unrelated to the humeral fracture."

Plaintiff, in his opposition papers, asserts that defendant's entire motion for summary judgment is predicated on the medical malpractice standard, in which Dr. Denton states that Cobble Hill did not depart from accepted standards of care. Medical malpractice is not pleaded in plaintiff' s complaint. Rather, plaintiff's complaint is based upon alleged violations of PHL § 2801-d, negligence, wrongful death, and gross negligence. Defendant did not address these causes of action in the instant motion.

Further, plaintiff avers that the affirmation Dr. Tristan Dacunha [exhibit A of cross-motion] creates genuine issues of material fact sufficient to deny defendant's motion. Dr. Dacunha, a board-certified internist, reviewed defendant's motions and exhibits, decedent's charts from Cobble Hill, LICH, and the two hospices, and deposition testimony. He opines that Cobble Hill [*4]violated Alfred Bush's rights, pursuant to 10 NYCRR § § 415.12, 415.14, with respect to nursing homes providing each resident with a well-balanced diet and sufficient fluid intake. He states that these violations resulted in Alfred Bush's malnourishment, dehydration, and weight loss. Dr. Dacunha argues that defendant's actions caused decedent's sepsis, bedsores and his ultimate death.

The analysis of plaintiff's expert, Dr. Dacunha, in his affirmation, not only creates genuine issues of fact to deny summary judgment to defendant, but also creates material issues of fact to deny summary judgment to plaintiff. Therefore, both defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment are denied.

The complaint in this action asserts causes of action for

violations of the Public Health Law, ordinary negligence and wrongful

death. The statutory cause of action recites that it is brought pursuant

to Public Health Law § 2801-d confers a private right of action

on a patient in a nursing home for injuries sustained as the result

of the deprivation of specified rights (§ 2801-d[1]). Relief is

predicated on Public Health Law § 2803-c (3) (e), specifically

deprivation of "the right to receive adequate and appropriate medical

care," and alleges that defendants violated 10 NYCRR 415.12 © (1)

by failing to prevent the development of pressure sores and 10 NYCRR

415.12 (I) (2) by failing to maintain adequate nutrition. As such, it

states a cognizable cause of action under the statute (Goldberg v

Plaza Nursing Home, 222 AD2d 1082, 1084 [4th Dept 1995] [statute

affords remedy to patients denied rights enumerated in Public Health

Law § 2803-c (3)]; see also Begandy v Richardson, 134 Misc 2d 357,

361-362 [Sup Ct, Monroe County]).

(See Morisette v Terrance Cardinal Cooke Heath Care Center, 8 Misc 3d 506, 512 [Sup Ct, New York County 2005]; Ward v Eastchester Health Care Center, LLC, 34 AD3d 247 [1st Dept 2006]; Washington v Asfaw, 15 Misc 3d 1107 (A) [Sup Ct, New York County 2007]).

With respect to plaintiff's common law negligence cause of action, there is a subtle distinction between negligence and medical malpractice. Many of the alleged abuses committed upon decedent Alfred Bush with respect to malnutrition, weight loss, dehydration, sepsis, bedsores and the events that resulted in decedent's right humeral fracture could be the result of actions by practical nurses, orderlies, nurse's aides and others who assist in patient care. The Court of Appeals (Scott v Uljanov, 74 NY2d 673, 674 [1989]) instructed:

In that medical malpractice is simply a form of negligence,

no rigid analytical line separates the two, although for policy reasons

the Legislature has chosen to affix different Statutes of Limitations

to medical negligence (or malpractice) and negligence generally.

Conduct may be deemed malpractice, rather than negligence, when

it "constitutes medical treatment or bears a substantial relationship to

the rendition of medical treatment by a licensed physician." (Bleiler v

Bodnar, 65 NY2d 72 [1985]).

Further, Zeides held that a private cause of action for PHL § 2801-d violations may be asserted with a common law negligence claim. (See Morisette v Terrance Cardinal Cooke Heath Care Center, supra; Pasqua v Bon Secours New York Health System, 13 Misc 3d 1036 [Sup Ct, Bronx [*6]County 2006]; Washington v Asfaw, supra; Passet v Menorah Nursing Home, Inc., 16 Misc 3d 1117 (A) [Sup Ct, Kings County 2007]). While, to this Court's knowledge, the Appellate Division, Second Department has not articulated a view with respect to whether common law negligence claims may be asserted with claims for statutory violations of PHL § 2801-d, plaintiff, in the instant action, may proceed with both PHL § 2801-d and common law negligence claims. "The rule in New York is that the trial courts must follow an Appellate Division precedent set in any department in the State until its own appellate division decides otherwise (see Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663 [2d Dept 1984])." (Stewart v Volkswagen of America, Inc., 181 AD2d 4, 7 [2d Dept 1992]).

Plaintiff's cross-motion, similar to defendant's motion, fails to make a prima facie showing of entitlement to judgment as a matter of law. Material issues of fact as to the treatment of decedent Alfred Bush are not eliminated by the voluminous deposition transcripts, medical records presented along with the affidavit of Dr. Dacunha. (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Dr. Dacunha's affidavit, similar to Dr. Denton's affidavit, contains speculation and conclusory statements. It too lacks probative value (See Youthkins v Cascio, supra; Paladino v Time Warner Cable of New York City, supra; Figueroa v Gallagher, supra; Itzkowitz v King Kullen Grocery, Co., Inc., supra; Exime v Williams, supra).

Conclusion

Accordingly, it is

ORDERED, that the motion of defendant, Cobble Hill Health Care Center, Inc., for summary judgment, pursuing to CPLR Rule 3212, and dismissal of the complaint or various causes of action therein, is denied; and it is

ORDERED, that the cross-motion of plaintiff Raymond Bush, as Executor of the Estate of Alfred Bush, decedent, for summary judgment on liability, pursuant to CPLR Rule 3212, is denied.

ENTER

____________________________

HON. ARTHUR M. SCHACK

J. S.C.