Lyons V Lutheran Augustana Ctr. For Extended Care & Rehabilitation, Inc.

[FILED: KINGS COUNTY CLERK 12/20/2022 12:50 P NYSCEF DOC. NO. 97 INDEX NO. 520345/2018 RECEIVED NYSCEF: 12/20/2022 transfers with moderate assistance, sit to stand with moderate assist, rolling with moderate independence, and supine to sit with moderate assistance" (Id). Decedent's "[I ]ong term goals [included] ambulation to 150 ft supported with a rollator" (Id.). On June 9, 2016, the records state that "a physiatry consult was also provided, which noted that [decedent] was status-post cellulitis to the bilateral lower extremities, with chronic stasis dermatitis changes, chronic edema of the left lower extremity, and hyperpigmentation to the bilateral lower extremities" (Id. at ,r 11). Her "[p]rognosis with rehab was good" (Id.). On June 15, 2016, the chart documents that decedent "was improving significantly with PT/OT, able to stand for longer periods and use a walker for short ambulation'" (Id. at ,r 12). The physiatrist noted that decedent "had good rehab potential" (Id.). In July 2016, the "Certified Nursing Assistant Clinical Accountability and Assignment" records "indicated that [decedent] was ambulating in the unit with rolling walker assistance \Vith supervision" (Id at ,r 15). On July 6, 2016, the physical therapist recorded that decedent "had met her short- and long-term PT goals," "was able to ambulate short distances in a stable manner, and able to ambulate about 150 feet full weight bearing with a rolling walker'' (Id at ,r 16). Decedent was discharged on July 6, 2016, and her '·[d]ischarge instructions included a referral for Lutheran Care at Horne" (Id at 18). The records document that "[ a ]t the time of discharge . decedent's ··occupational therapy functional status was independent for wheelchair mobility, independent for grooming and dressing, minimal assistance with tub/shower transfer indicating grab bar and shower chair assist, toilet transfer with supervision with rolling walker, [and J toileting with supervision" (Id.). On July 7, 2016, decedent "·\vas admitted to Lutheran Medical Center relating to a fall sustained at home" (Id. at ,r 19). Dr. Walsh, an orthopedist recorded that "decedent sustained" a "comminuted displaced fracture [of the] distal left tib[ia ]/fib[ ula], requiring reduction and internal fixation" (Id. at ,r 20; Plaintiffs Response to Defendant's Statement of Facts ,r 20). "[S]ignificant osteopenia" was noted in the CT Scan report, and "[s]econdary diagnoses during this admission included osteoporosis, 5 [* 5] 5 of 18

[FILED: KINGS COUNTY CLERK 12/20/2022 12:50 P NYSCEF DOC. NO. 97 INDEX NO. 520345/2018 RECEIVED NYSCEF: 12/20/2022 obesity, coronary artery disease, hypertension, peripheral vascular disease, varicose dermatitis, and recurrent cellulitis" (Statement of Material Facts ,r 20). On July 8, 2016, decedent ··underwent an open reduction with internal fixation ("ORIF") surgery for the fracture'' (Id at ,r 21 ). On July 11, 2016, Ms. Lyons (decedent) was "discharged to Lutheran Augustana for rehabilitation" for "status-post left distal tibia/fibula fracture with ORIF (open reduction with internal fixation) with flex nails and hard cast placement" (Id. at ,r,r 22, 23). The records indicate that her "admitting diagnoses included acute renal failure, CAD (coronary artery disease) status-post placement of stents, trigeminal neuralgia, diastolic CHF (congestive heart failure), and hypertension" (Id at 123). The records document that the care plan called for two people to assist Ms. Lyons for toileting (Id. at ,r,r 25, 27, 28). On March 6, 2017, "at or about 4: 15 PM, two CNAs were providing [Ms.] Lyons' a two-person assist with transfer from the toilet to the wheelchair when" decedent" s ··knees buckled" (Id. at ,r 29). The incident report states that "an attempt was made to lower [decedent] to the floor," and that decedent "complained of pain to bilateral knees'' ·'[i]immediately after the fall" (Accident/Incident Report at 1, annexed as Exhibit Oto defendant's motion papers). The records document that "X-rays were performed at I :30 a.m., and showed a com minuted fracture of the right distal femur" (Statement of Material Facts ,r 32). Dr. Chen "ordered transfer of [Ms.] Lyons on the morning of March 7, 2017," and noted that "[she] had severe osteoporosis and osteopenia" (Id.). Upon arrival at Lutheran Medical Center on March 7, 2017, decedent was ·'admitted for treatment of a right distal femur fracture and pneumonia'' (Id at ,r 33). An "x-ray of the pelvis and bilateral hips was ordered," revealing "an acute, impacted, intra-angular, comminuted fracture of the right distal femur, involving the condyles, and moderate osteoarthrosis" (Id.). The x-ray reports also stated that decedent had osteopenia, and the "CT scan of the right knee indicated that the decedent had diffusely demineralized bones" (Id.). On March 13, 2017, Dr. Walsh performed an open reduction/internal fixation (ORIF) of decedent's right femur (Id. at ,r 34). On March 21,2017, decedent 6 [* 6] 6 of 18

[FILED: KINGS COUNTY CLERK 12/20/2022 12:50 P NYSCEF DOC. NO. 97 INDEX NO. 520345/2018 RECEIVED NYSCEF: 12/20/2022 "returned to Lutheran Augustana for rehabilitation following ORIF surgery" (Id at 39). Decedent died on December l, 2019 at NYU Lutheran (Id. at 44 ). In support of its motion for summary judgment. defendant submits an expert affirmation from Dr. Mark Lachs, M.D., a physician board certified in internal medicine with a "subcertification in geriatric medicine,"' contending that the staff at Lutheran Augustana did not deviate from the standard of care during their treatment of decedent, and that they did not proximately cause her injuries (Defendant's Expert Affirmation 11, 3). Dr. Lachs' opinion is based on review of the pleadings, bills of particulars, medical records, and the parties' deposition transcripts (Id at 12). Dr. Lachs opines that the staff at Lutheran Augustana did not depart from acceptable medical practice by discharging the decedent on July 6, 2016, and that her subsequent fall was not proximately caused by the discharge (Id at 1 48, 50). He states that '·plaintiffs allegations [rest] on the theory that the discharge was premature. improper, and that the family disagreed with the discharge" (Id at 1 48). Dr. Lachs maintains that the '·documentation in the records of Lutheran Augustana supports a proper determination to discharge the decedent, with an appropriate plan post-discharge, in conformity with the standard of care and in the exercise of proper medical/professional judgment" (Id.). He affirms that the "Physical Therapy note on the date of discharge. July 6, 2016, reported [that] the decedent met her short and long term PT goals, and was able to ambulate short distances in a stable manner, up to 150 feet with full weight bearing and use of a rolling walker'" (Id. at 49). Further, "[a]ppropriate recommendations for continued PT at home to improve strength, endurance and to maintain functional status, and use of a contact guard for stair negotiation and home exercise plans were provided" (Id.). Dr. Lachs alleges that "there was no longer any indication for continued therapy in a nursing home setting, and the decedent met the criteria for discharge" (Id.). Dr. Lachs points out that "there were no documented falls during this June-July 2016 admission to warrant any further or different instructions or recommendations,'· and that the "decedent was alert and oriented [upon discharge], given discharge 7 [* 7] 7 of 18

[FILED: KINGS COUNTY CLERK 12/20/2022 12:50 P NYSCEF DOC. NO. 97 INDEX NO. 520345/2018 RECEIVED NYSCEF: 12/20/2022 instructions that referred her to at-home care and provided for instructions of an at-home exercise program to continue to make gains" (Id at 50). Dr. Lachs claims that plaintiffs deposition testimony and the deposition testimony of decedent"s daughter, non-party, Carey Lyons, support that decedent "was able to adequately use a rolling walker following discharge," and that "they had [no] objection[s] to the discharge from Lutheran Augustana" (Id.). Dr. Lachs concludes that the fall was not proximately caused by defendant's care, as the fall occurred approximately "10 hours following the discharge," and "the decedent was doing well ambulating with the rolling walker at the time of discharge'' (Id.). Dr. Lachs also maintains that the staff at Lutheran Augustana did not deviate from the standard of care on March 6, 201 7, "in connection with" decedent's second fall (Id. at , 51, 5 7). Dr. Lachs disputes plaintiffs allegations that "the decedent was not properly assessed for risk of falls nor were appropriate care plans put into place" (Id at 51 ). He affirms that "there is ample evidence in the chart of an individually comprehensive care plan being initiated for [decedent], which was updated as indicated, and included fall risk assessments taking into account the decedent's functional status [at the] time" (Id.). Further, "[t]here were also documented monthly CNA (Certified Nurse Assistant) accountability assessments relating to carrying out instructions pertaining to the decedent's functional status, including carrying out instructions for the level of supervision deemed indicated for toileting and transfers, and such documents were updated monthly" (Id.). Dr. Lachs also contends that plaintiffs claim that "there was a failure to provide 1:1 or 2:1 supervision" at the time of decedent's fall, lacks merit (Id). He points out that "it is well documented that two aides [were] in attendance, and witness statements from both aides are also consistent in that they fully demonstrate that the CNA's acted in accordance with the plan of care as well as the standard of care in connection with such transfers" (Id. at ,r 52). Further, "[a] review of the CNA statements supports that both were providing physical assistance throughout the transfer," and "[t]here is no documentary evidence to support the plaintiff's claim that there was only one aide present at the time of the fall on March 6, 2017" (Id. at ,,r 8 [* 8] 8 of 18

[FILED: KINGS COUNTY CLERK 12/20/2022 12:50 P NYSCEF DOC. NO. 97 INDEX NO. 520345/2018 RECEIVED NYSCEF: 12/20/2022 52, 53). Dr. Lachs asserts that plaintiffs allegation that decedent ··could not have been eased to the floor" based on her injuries, is without merit (Id. at ,r 55). Dr. Lachs opines that "a fracture of the type described in this action can indeed occur in the course of providing two-person assistance to a patient," and that decedent's injury "is consistent with a patient who has progressive osteopenia and osteoporosis" (Id.). He argues that "great force" was "not required to produce an injurious result" in decedent's case, as "[t]he record clearly documents that [decedent] had osteopenia and osteoporosis, suffered prior fractures to the same affected area, and had demineralized bones" (Id.). Dr. Lachs concludes that "[i]n a patient who is compromised to the extent of decedent herein, such a result can be achieved as the result of relatively minor twists or contact with a surface.'' Dr. Lachs alleges that plaintiffs allegations that ·'Lutheran Augustana failed to monitor [decedent's] nutrition and signs of dehydration" also lack merit, as "[ n ]utrition plans were in place in the care plan," "weight and nutrition were monitored closely and updated in an effort to monitor and treat [decedent's] continued obesity and comorbidities impacted by diet," "as well as overall nutrition and hydration concerns" (Id. at,; 56). Dr. Lachs maintains that defendant did not violate Public Health Law § 2801-d or Public Health Law § 2803-c, or any of the violations of 10 NYCRR § 415, enumerated in the bills of particulars (Id. at ,r,r 57-58). He contends that "it is apparent that Lutheran Augustana provided all [care] reasonably necessary to prevent or limit the claimed injuries herein, and there is no indication that any act or omission violated any statute, rule, or regulation" (Id. at ,r 57). As for the alleged violations of 10 NYCRR § 415, Dr. Lachs opines that "Lutheran Augustana acted in conformity \vith the pertinent statutes and regulations by provid[ing] the [care] necessary to address the decedent's needs, including taking all necessary steps to assure the decedent was safe for discharge," "provid[ing] timely assessments as to the decedent's functional and nutrition status,'· "develop[ing] and properly imp\ement[ing] a plan of care to meet the care needs of the decedent, with objectives," and "properly 9 [* 9] 9 of 18

INDEX NO. 520345/2018 [FILED: KINGS COUNTY CLERK 12/20/2022 12:50 P NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 12/20/2022 and diligently carr[ying] out the care plan" (Id at ,i 58). He concludes that despite proper care, 'falls may nonetheless occur in a nursing home setting," "result[ing] in an injury" (Id). In opposition to defendant's motion for summary judgment, plaintiff submits expert affirmations from Dr. Perry Starer, M.D., a physician board certified in internal medicine "with a subspecialty in geriatric medicine," and Dr. Mark J. Decker, M.D., a physician board certified in radiology (Starer Expert Affirmation ,i 1; Decker Expert Affirmation ,i 1). Dr. Starer opines that the staff at Lutheran Augustana deviated from the standard of care, and that they proximately caused decedent's injuries (Starer Expert Affirmation ,i 6). Dr. Starer's opinion is based on review of the pleadings, bills of particulars, deposition transcripts, medical records, Dr. Lachs' and Dr. Decker's affirmations, and the defendant's motion papers (Id at ,i 3). Dr. Decker discusses the decedent's fractures based on his review of decedent" s six radiology studies at Lutheran Medical Center. but does not give his opinion as to the standard of care in this case (Decker Expert Affirmation, 4). Dr. Starer alleges that "the standard of care'' in this case "called for the nursing staff to provide all care reasonably necessary to" "prevent falls/accidents, dehydration, urinary tract infection and impaired range of motion, perform assessments, carry out interventions, monitor the resident and make changes to the care plan as conditions change or incidents occur in order to achieve the highest level of practicable well-being" (Starer Expert Affirmation ,i 60). Dr. Starer contends that the staff at Lutheran Augustana deviated from acceptable medical practice by discharging decedent on July 6, 2016, resulting in decedent "fracturing her tibia and fibula" (Id at ,i 63 ). Dr. Starer maintains that it was inappropriate to discharge the decedent, as she had not '"[met] all of [her] long-term goals, was not conditioned to perform transfers outside the clinical setting and was discharged with unresolved risk factors for falling'' (Id. at ,i 64). More specifically, Dr. Starer claims that decedent "had not met the long term goals for toileting and toilet transfer," and that ''her endurance" was incorrectly "assessed as fair,'' "given the PT notes specifying the need for frequent rest and several continued issues with gait" 10 [* 10] 10 of 18

[FILED: KINGS COUNTY CLERK 12/20/2022 12:50 P NYSCEF DOC. NO. 97 INDEX NO. 520345/2018 RECEIVED NYSCEF: 12/20/2022 (Id). Further, Dr. Starer disputes Dr. Lachs' contention that "the discharge was overseen by the attending physician," "as there are no notes or examinations by the attending physician'' (Id at 65). Dr. Starer also points out that "there is no evidence [decedent] walked the unit with a rolling walker at any time outside of PT or OT," and "[range of motion] was completely ignored in the PT and OT plans of care resulting in impaired mobility and muscle strength" (Id at ,i,i 66, 68). The omission of range of motion from the care plans constitutes "a violation of the standard of care, and increased the likelihood that Mrs. Lyons would fall" (Id at ,i 68). Dr. Starer asserts that defendant violated Public Health Law § 2803-c(3)( e), "which requires a nursing home to provide adequate and appropriate medical care, and 42 CFR § 483.30, which requires the medical care of a patient to be overseen by a physician who examines the patient at least once every thirty days" (Id at ,i 69). He points out that ··there is no evidence Mrs. Lyons' attending physician ever actually examined her," and "there is [also] no evidence the physician reviewed the blood test results from June 28, 2016" (Id.). He indicates that the "blood test results suggest acute kidney malfunction and upon admission to Lutheran Medical Center on July 7, 2016, Mrs. Lyons was diagnosed with Acute Kidney Failure Syndrome" (Id at ,i 70). Dr. Starer suggests that this failure proximately caused decedent's fall on July 6, 2016, as ·'[kJidney failure syndrome can result in weakness, fatigue, and muscle spasms, raising the risk of falls" (Id). Dr. Starer maintains that defendant departed from the standard of care during plaintiffs second admission to Lutheran Augustana, causing her to fall on March 6, 2017 (Id. at ,i 77). He disputes Dr. Lachs' opinion that fall risk assessments were adequately performed, and states that the records only document that fall risk assessments were performed on September 8, 2016, and "on March 6, 2017 after the fall" (Id. at ,i 72). Dr. Starer contends that "Ms. Romeo and Ms. Smith, [two aides], failed to provide the proper assistance and supervision to Mrs. Lyons [on March 6, 2017} in violation of her rights as a nursing home patient, and that this violation caused her severe, painful, and life-altering 11 [* 11] 11 of 18

[FILED: KINGS COUNTY CLERK 12/20/2022 12:50 P NYSCEF DOC. NO. 97 INDEX NO. 520345/2018 RECEIVED NYSCEF: 12/20/2022 injuries'' (Id. at ,i 77). Dr. Starer suggests that two aides may not have been present when transferring decedent from the toilet to her wheelchair, as one of CNA Romeo's statements "indicates·· that ·'Ms. Smith went to get Mrs. Lyons a glass of water,'' but does not state when she came back (Id. at ,i,i 7374). Further, there are also inconsistencies in the statements, as "Ms. Smith's first statement, taken right after the incident, specified that Mrs. Lyons fell to the bathroom floor," while her statement two days later "claim[ ed] Mrs. Lyons was lowered to the floor" (Id. at ,i 74 ). Dr. Starer opines that"[ e ]ven if both aides had been present, it is clear they were not providing the proper extensive assistance and supervision of Mrs. Lyons during toileting such that she was caused to fall, violently fracturing her femur near the right knee and left ankle in a new portion of the tibia and fibula" (Id. at ,i 77). Further, the injuries suggest that "Mrs. Lyons was not lowered to the floor in a controlled manner," as the "presence of the new left ankle fracture in addition to the fractured femur evince physical force to both places·· (Id at ,i 75). Although "Dr. Lachs opines that Mrs. Lyons had osteopenia and osteoporosis," and that an injury may "be achieved as the result of relatively minor twists or contact with a surface," Dr. Starer maintains that "[p Jeople with osteopenia and people with osteoporosis must be protected from twists and surface contact during a controlled easing to the floor" (Id.). Further, according to Dr. Decker, "there [was] a 3 cm cortical fragment impacted into the medullary cavity with intraosseous hemorrhage" (Id. at ,i 76). Dr. Starer argues that ··[t]his type of injury, where a cortical fragment is shoved into the inside of the bone causing bleeding, is simply not indicative of a minor twist or contact" (Id. at ,i 76). Dr. Starer also claims that the nursing home violated "42 CFR § 483.374'' by not reporting the fall to the Department of Health, as decedent sustained a serious injury (Id. at ,i 79). He concludes that defendant "failed to supervise and monitor Mrs. Lyons [in violation of 42 CFR 483.25(d)(2)], and [that] this failure was a proximate cause and/or contributed to [decedent's] injuries" (Id. at 1 80). 12 [* 12] 12 of 18

[FILED: KINGS COUNTY CLERK 12/20/202

CHF (congestive heart failure), and hypertension" (Id at 123). The records document that the care . Lachs also asserts that the discharge instructions were within the standard of care, and that decedent's subsequent fall was not the result of any alleged malpractice. Dr. Lachs further maintains that defendant's staff adhered to the standard .