First Department Upholds Summary Judgment for Defendant in Bronx Nursing Home Action

A March, 2014 Decision and Order by the Supreme Court Appellate Division, First Department, upheld a lower court’s finding of summary judgment for a defendant nursing home. The underlying complaint, negligence against the Bronx nursing home for failure to properly treat and heal a pressure ulcer, leading to amputation, was therefore dismissed.

wheelchair room.jpgPlaintiff-appellant had been discharged to the defendant nursing home with two existing Stage IV pressure ulcers on his left leg. A prior diagnosis at a Florida hospital stated that the decedent was a candidate for potential amputation due to the deterioration of the ulcer. In fact, the hospital advised that the patient undergo the procedure because the prognosis for recovery was so slight. Ultimately the resident did have his left leg amputated below the knee. The plaintiff sued, claiming that the nursing home’s negligence in allowing a previously healed pressure ulcer to reopen was the cause of the eventual amputation.

The First Department disagreed with the plaintiff-appellant. In doing so, the Court relied upon conflicting accounts as to the origin of the injury. Additionally, the defendant-respondent’s expert opined that the amputation was inevitable, due to the preexisting condition. He also claimed that the nursing home had adhered to appropriate medical standards in treating the patient. The appellant’s expert asserted a merely conclusory opinion that the amputation was avoidable because “no other extremity required amputation.”

Clearly the defense expert affirmed that the nursing home did not depart from an accepted standard of care. After the defendant made this prima facie showing, it became incumbent upon the plaintiff’s expert to raise a triable issue of fact to overcome summary judgment. Because the Court felt that the plaintiff’s expert affirmation was conclusory, the plaintiff was unable to meet his burden and overturn the lower court’s finding.

Iciano v. Franklin Nursing Home, 2014 Slip Op 3009

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