Defendant has applied, pursuant to CPLR §3212, for summary judgment.

This is an action for personal injuries sustained by Plaintiff's decedent, David Colley ("Decedent"), and for his wrongful death, arising out of allegations of negligent nursing care and violations of Public Health Law §§2801-d and 2803-c.

On April 8, 2015, Decedent, then age seventy-two (72), presented to the Emergency Department at Mercy Hospital with complaints of inability to ambulate, and pain and numbness from his neck to his feet and that he could not walk despite having been ambulatory with no difficulty. The pain was progressive and accompanied by leg weakness. Decedent also expressed that he had fallen several times, and had experienced bowel incontinence on several occasions (see Mercy Hospital records at NYSCEF Doc. No. 26).

Decedent's past medical history included abdominal aortic aneurysms status post repair; left carotid stenosis with total occlusion, without surgical intervention; and hypertension. His social history noted that he had smoked one (1) pack of cigarettes per day for fifty (50) years (Id.).

Decedent was admitted for a work-up, including an MRI of the thoracic spine, which revealed a pathologic fracture at T2 vertebral body with severe spinal cord compression, abnormal enhancement, and associated soft tissue mass with high concern for malignancy. An MRI of the cervical spine revealed a compression fracture at the upper thoracic vertebrae with central canal compression, diffuse posterior disc bulge, and moderate to severe central canal compromise (Id.).

On April 13, 2015 (while a patient at Mercy Hospital), Decedent underwent cervicothoracic fusion at C6-T4 with Medtronic lateral mass and T1-2 thoracic laminectomy with subtotal excision of the T2 tumor extradural. Tumor pathology revealed B-cell lymphoma, prompting an oncology consult and commencement of chemotherapy.

On May 12, 2015, Decedent was discharged from Mercy Hospital and admitted to Defendant's facility (the "Facility") for rehabilitation services and subacute care. As of that date, Decedent had completed two (2) chemotherapy treatments (Id.).

Upon admission to the Facility, Decedent presented with a "healing" pressure ulcer on his coccyx, measuring 1.5 cm by .5 cm by .1 cm., and no drainage was noted (NYSCEF Doc. No. 22, p. 282). He was non-ambulatory, with both a Foley catheter and a Miami-J hard cervical collar in place. Decedent was noted to be a fall risk, and fall prevention measures were put into place, including high/low bed, bed and chair alarms, and non-skid socks (Id.; see also, NYSCEF Doc. No. 14, at ¶¶11-12).

The Facility developed a Care Plan wherein Decedent's pressure ulcer was scheduled to be assessed daily, with findings documented on a weekly basis. He was to be turned and/or positioned every two (2) hours, with skin prep at the periwound and Exuderm dressings to be changed every three (3) days. The ulcer was gently cleaned with normal saline and let air dry every three (3) days (NYSCEF Doc. No. 22, p. 282; NYSCEF Doc. No. 14, ¶12).

Also upon admission to the Facility, a Braden Scale analysis was performed, which revealed, inter alia, a Braden Score of "14 Moderate Risk"^[FN1] (NYSCEF Doc. No. 22, p. 99).

During the next month, Decedent's medical condition deteriorated and, on June 11, 2015, he was transferred urgently to Lakeshore Hospital, where it was determined that he required a higher level of care, resulting in his transfer (the same day) to Mercy Hospital (NYSCEF Doc. No. 14, at ¶15).

Decedent's condition continued to deteriorate and, on June 23, 2015, he passed away. The immediate cause of death was listed as healthcare acquired pneumonia with other significant conditions including B-cell lymphoma and congestive heart failure (NYSCEF Doc. No. 28).

To obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law (Ferluck AJ v. Goldman Sachs & Co., 12 NY3d 316, 320 [2009]). This requires sufficient evidence to shift the burden to the opposing party to produce evidentiary proof sufficient to establish the existence of genuine issues of material fact (Id at 320). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (Gilbert Frank Corp. v. Fed. Ins. Co., 70 NY2d 966, 967 [1988] [citation omitted]). Factual issues raised by the opposing party must be genuine, as opposed to speculative (Trahwen LLC v. Ming 99 Cent City No.7, Inc., 106 AD3d 1467, 1468 [4th Dept 2013]).

Plaintiff contends that Defendant committed medical malpractice, and

to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries. On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (Novick v. South Nassau Communities Hosp., 136 AD3d 999, 1,000 [2016]).

Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause (Id.).

Plaintiff alleges further that Defendant violated sections 2801-d and 2803-c of the Public Health Law, pertaining to private actions by patients against health care facilities and the patient's statement of rights, as well as numerous provisions of the New York Code of Rules and Regulations.

A cause of action pursuant to Public Health Law §2801-d is separate and distinct from an action sounding in medical malpractice, and the

basis for liability under the statute is neither deviation from accepted standards of medical practice nor breach of a duty of care. Rather, it contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule (Novick, 136 AD3d at 1,001).

Summary judgment is appropriate where a defendant can establish no violation of any contract, statute, regulation, code or rule, and that the injured party was not injured by any such violation (Id.).

Defendant submitted the affidavits of Diane J. Yastrub, FNP, CWCN, and Valerie Vullo, MD (NYSCEF Doc. Nos. 14 and 15, respectively).

Based on their respective affidavits, the Court considers both Nurse Yastrub and Dr. Vullo to be experts in the areas of, respectively, nursing and medical practice.

Nurse Yastrub is a Certified Wound Care Nurse ("CWCN") and Family Nurse Practitioner ("FNP"), with approximately forty-one (41) years' experience as a Registered Nurse and nineteen (19) years' experience as a FNP. As a CWCN, her responsibilities have included, inter alia, consulting in subacute care, long term care, short term care, home care, and assisted [*2]living facilities in connection with the development of wound care protocols, documentation and development of templates to enhance the education of staff, residents and families (NYSCEF Doc. No. 14; ¶¶ 1-4).

Nurse Yastrub's opinion is based, inter alia, upon her review of the Complaint, Answer, Plaintiff's Bill of Particulars, and Plaintiff's pertinent medical records.

With respect to the Original Pressure Ulcer ^[FN2] , Nurse Yastrub opines that Defendant could not have prevented it, because Decedent presented with it upon arrival at the Facility, whereupon Defendant documented the presence, appearance, and characteristics of the Original Pressure Ulcer and established a care plan, which included daily assessment and weekly documentation of the wound, turning and positioning at two (2) hour intervals, skin prep, and the application of comfort foam. Based on the foregoing, Nurse Yastrub opines, to a reasonable degree of certainty in her area of practice, that Defendant properly noted, assessed, and cared for the Original Pressure Ulcer.

With respect to Decedent's subsequently acquired ulcers, Nurse Yastrub opines, to a reasonable degree of certainty in her area of practice, that these were terminal ulcers indicative of skin changes at life's end (known as "SCALE" ulcers), rather than pressure ulcers. She describes such ulcers, as follows:

A patient simply does not develop three pressure ulcers in one area; rather, these types of lesions indicate systemic, end stage breakdown of the skin. In cases of terminal ulcers, the wound will continue to deteriorate as the skin shunts blood to the vital organs. This shunting of blood results in the deprivation of blood to the skin, which is the largest organ, which subsequently robs the skin of oxygen and nutrients needed to maintain the skin's health. Therefore, these lesions could not have been prevented by the facility no matter what level of preventative and actual wound care was provided to the patient (NYSCEF Doc. No. 14, ¶20).

With respect to Plaintiff's claim that Defendant failed to properly hydrate Decedent and provide him with proper nutrition, Nurse Yastrub demonstrates how these contentions lack merit - they are belied by the documentation provided by, inter alia, an attending physician and speech language therapist. In this regard, Decedent experienced moderate oral dysphagia, which interfered with his ability to swallow and made eating difficult. Defendant recognized Decedent's needs and placed him on a suitable therapeutic diet. Moreover, Decedent was experiencing electrolyte imbalance due to his multiple co-morbidities, complicated by his chemotherapy (NYSCEF Doc. No. 22, pp. 295, 299, 306, 308; NYSCEF Doc. No. 14; ¶¶22-23).

Nurse Yastrub similarly and adequately responds to Plaintiff's remaining contentions.

Dr. Vullo is a physical medicine and rehabilitation specialist who has been licensed to practice medicine in New York State for almost thirty (30) years. She has served as, inter alia, an Associate Medical Director at DeGraff Medical Rehabilitation Unit and as Clinical Director of [*3]Kaleida Rehabilitation Center. Dr. Vullo also served as a Clinical Assistant Professor at the University at Buffalo from 1995-2003 (NYSCEF Doc. No. 15, ¶¶1-5).

Dr. Vullo's opinion is based, in relevant part, upon her review of the same pleadings and medical records that Nurse Yastrub reviewed.

Dr. Vullo opines, to a reasonable degree of medical certainty, that Defendant's care and treatment of Decedent "was reasonable, appropriate, and met the applicable standard of care" (NYSCEF Doc. No. 15, ¶15). She bases her opinion on Defendant having

continuously monitored and assessed [Decedent's condition] while he was a resident at the Facility, including but not limited to physical and mental well-being, intake needs, and skin integrity (Id.).

Dr. Vullo further noted the following in attributing the "plethora of [Decedent's] medical conditions" upon admission to the Facility:

The patient's Lymphoma caused pancytopenia, or low counts for all types of blood cells, which is a typical complication of non-Hodgkin's lymphoma. In addition, the patient developed neutropenia, or low neutrophil count, which was likely caused by chemotherapy. These issues in turn gave rise to further complications, including GI Bleed, Dehydration, Malnutrition and Syndrome of Inappropriate Secretion of Antidiuretic Hormone or commonly known as SIAD. This patient was in a very deconditioned state and prone to further complications when he arrived at the Facility. His immune system was compromised as a result of the lymphoma and chemotherapy, which increased his susceptibility to infection and caused skin breakdown, including ulcers. The immediate cause of death for this patient was listed as Health Care Acquired pneumonia. Pneumonia is a common complication arising in immunocompromised cancer patients. Due to this patient's deconditioned state and weak immune system, there was nothing the Facility could have done to prevent these complications, nor could it have prevented [Decedent's] death (Id., at 17).

The Court finds that Defendant's expert's opinions are sufficiently supported by the record, and demonstrate Defendant's entitlement to summary judgment, as a matter of law. Accordingly, the burden of proof shifted to Plaintiff to submit proof, in admissible form, creating a genuine issue of material fact sufficient to defeat summary judgment (Ferluck AJ, 12 NY3d at 320).

Plaintiff submitted the affidavit of Terrence L. Baker, MD, MS.

Dr. Baker is a licensed physician, with in excess of thirty (30) years' experience specializing in family medicine, emergency medicine, and geriatrics. He is board certified in each of these areas (NYSCEF Doc. No. 29, ¶¶1-5). The Court considers Dr. Baker to be an expert in his respective fields of medical practice.

Dr. Baker's opinion is based upon, inter alia, his reviewof the Complaint, Plaintiff's Bill of Particulars, Plaintiff's pertinent medical records, several deposition transcripts, and the affidavits of Nurse Yastrub and Dr. Vullo.

Much of Dr. Baker's affidavit addresses Plaintiff's contention that Defendant failed to properly assess the condition of Decedent's skin including that, neither a Braden analysis was performed, nor a skin care plan implemented. However, these contentions are belied by the record: Defendant performed a Braden Scale Analysis and developed a skin care plan upon Decedent's admission to the Facility (NYSCEF Doc. No. 22, p. 99). Dr. Baker missed and/or overlooked these critically important facts, necessarily leading the Court to reject his opinion on these issues.

Dr. Baker opines further that Decedent's nutritional and fluid intakes were inadequate. However, the record reflects that Decedent suffered from moderate oral dysphagia, which interfered with his ability to swallow, making eating difficult. Defendant's physician and speech language therapist recognized these limitations and placed Decedent on a suitable therapeutic diet. Defendant monitored dietary compliance and any changes in tolerance were noted in order to adjust Decedent's diet to accommodate the dysphagia (NYSCEF Doc. No. 22, pp. 295, 299, 306, 308; NYSCEF Doc. No. 14, ¶23).

In addition, upon admission to the Facility, Decedent also suffered from hyponatremia. According to the Mayo Clinic,

[h]yponatremia occurs when the concentration of sodium in your blood is abnormally low. Sodium is an electrolyte, and it helps regulate the amount of water that's in and around your cells. In hyponatremia, one or more factors - ranging from an underlying medical condition to drinking too much water - cause the sodium in your body to become diluted. When this happens, your body's water levels rise, and your cells begin to swell. This swelling can cause many health problems, from mild to life-threatening.

Hyponatremia treatment is aimed at resolving the underlying condition. Depending on the cause of hyponatremia, you may simply need to cut back on how much you drink. In other cases of hyponatremia, you may need intravenous electrolyte solutions and medications (www.mayoclinic.org/diseases-conditions/hyponatremia/symptoms-causes/syc-20373711 ).

Such electrolyte imbalance was caused by Decedent's co-mordities and complicated by repeated chemotherapy treatments, all of which adversely affected his sodium levels. However, Decedent's fluid intake was continuously monitored and, when found to be inadequate, appropriate adjustments were made (NYSCEF Doc. No. 22, pp. 295-315; NYSCEF Doc. No. 14; ¶23).

While the record reflects a few instances where Decedent was found to be malnourished and improperly hydrated, it also establishes that Defendant continuously and properly monitored Decedent and made adjustments to his fluid and food intake to address them. Dr. Baker focuses on these instances in a vacuum and out of context, by failing to also note that immediately following theses incidents Defendant made appropriate adjustments based on its regular monitoring.

In light of the foregoing, Plaintiff has failed to submit evidence in admissible form to create a material issue of fact sufficient to defeat summary judgment.

Accordingly, it is hereby,

ORDERED, that Defendant's motion for summary judgment is granted, and the [*4]Complaint is hereby dismissed.

This constitutes the Decision and Order of this Court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.