Antoine v. New York City Health & Hosps. Corp.

2026 NY Slip Op 30735(U)

• Court: New York Supreme Court, Kings County
• Decided: February 27, 2026
• Docket: Index No. 18394/2010
• Status: Unpublished
• Author: Consuelo Mallafre Melendex

Opinion

Antoine v New York City Health & Hosps. Corp. 2026 NY Slip Op 30735(U) February 27, 2026 Supreme Court, Kings County Docket Number: Index No. 18394/2010 Judge: Consuelo Mallafre Melendex Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.183942010.KINGS.001.LBLX000_TO.html[03/11/2026 3:45:49 PM] FILED: KINGS COUNTY CLERK 02/27/2026 02:40 PM INDEX NO. 18394/2010 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 02/27/2026

At an IAS Term, MMESP7 of the Supreme Court of the State of NY, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 27th day of February 2026.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X PYTHAGORE ANTOINE, as Administrator of the Estate of MARIE ALICE PIERRE-PAUL, deceased, DECISION & ORDER

Plaintiff, Index No. 18394/2010 Mo. Seq. 8 -against-

NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, BROOKDALE UNIVERSITY HOSPITAL and SCHULMAN AND SCHACHNE INSTITUTE AT THE BROOKDALE HOSPITAL AND MEDICAL CENTER,

Defendants. -------------------------------------------------------------------X HON. CONSUELO MALLAFRE MELENDEZ, J.S.C.

Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 27 – 49, 51 – 56, 57 – 59

Defendants Brookdale University Hospital (“Brookdale”) and Schulman and Schachne

Institute at the Brookdale Hospital and Medical Center (“SSI”) move (Seq. No. 8) for an Order,

pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff’s

Complaint against them in its entirety.

Plaintiff opposes the motion.

Marie Alice Pierre-Paul (“Decedent”) commenced the action on July 26, 2010, arising

out of care and treatment she received at Brookdale and SSI. The Decedent passed away on July

24, 2015. An amended complaint was filed by the administrator of Decedent’s estate as Plaintiff,

Pythagore Antoine, on March 3, 2017.

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The claims against the moving Defendants arise from prevention and treatment of a

sacral pressure ulcer, specifically during Decedent’s continuous admission to Brookdale and SSI

from May through November 2009.

From March 14, 2009, through May 8, 2009, the 45-year-old Decedent was admitted to

Kings County Hospital for multiple issues, including multiple sclerosis, obesity, severe iron

deficiency anemia, uterine fibroid with heavy uterine bleeding, and various skin conditions.

While admitted, she was diagnosed with neuromyelitis optica. Decedent developed a small

pressure ulcer to her sacrum and her general condition was noted to have deteriorated during her

admission to Kings County Hospital.1

On May 8, 2009, Decedent was transferred from Kings County Hospital to SSI and was

admitted with a stage II sacral pressure ulcer measuring 2 x 0.5 cm. As of May 25, 2009, the

pressure ulcer was noted to be “healed.”

Decedent was transferred from SSI to Brookdale on June 15, 2009. Upon admission,

there was no documentation of a rash or pressure ulcers, though Decedent was ordered daily

application of Tegaderm to the sacral area, and she continued her nutritional supplements. On

June 23, 2009, Decedent was ordered to be turned every two hours, have dressing changes from

sacral stage II to normal saline cleansings, and dry sterile dressing changes every three days, and

she was given nutritional supplements. Records show that from May 25 through June 25, there

was no documentation that Decedent had a pressure ulcer. On June 25, 2009, Decedent was

documented to have a stage II sacral ulcer measuring 5 x 4 x 0.5 cm. The Patient Care Plan noted

preventive interventions including pressure relieving mattress, turning and repositioning, and

nutritional intake.

1 New York City Health and Hospitals Corporation settled with Plaintiff on October 26, 2018.

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Decedent was readmitted to SSI on July 1, 2009; the sacral ulcer was noted to be stage

III, measuring 8 x 8 x 0.5 cm. By July 8, 2009, the presence of necrotic tissue was noted.

Decedent underwent a surgical debridement on July 15. By July 17, the sacral pressure ulcer was

noted as stage IV and measured 10 x 10 x 4.5 cm. Another debridement was performed on July

20, and the wound was noted as improved. Decedent underwent additional debridements on July

24 and July 31. On August 21, the sacral ulcer measured 8 x 6.5 x 6 cm, when the wound was

debrided again. The wound was then described as having improved after administering

intravenous antibiotics during the admission.

Decedent was transferred to Brookdale on August 22, 2009, and she underwent another

surgical debridement and received new orders to treat the ulcer. The ulcer measured 8 x 5 x 3 cm

with tunneling. On August 25, the pressure ulcer measured 9 x 5 x 5 cm and was debrided on

August 26, with the operative report documenting an abscess of the sacro-coccygeal area

involving the bone.

On August 27, 2009, Decedent was transferred back to SSI with a stage IV sacral

pressure ulcer measuring 8 x 7 x 6 cm.

Decedent was transferred to Brookdale on September 27, 2009. On September 28, the

sacral pressure ulcer was documented as clean and stage IV, and on September 29, the ulcer

measured 8 x 6 x 4 cm.

Decedent was readmitted to SSI on October 1, 2009, with the sacral pressure ulcer noted

as stage IV and measuring 7 x 3 x 3.5 cm. Decedent was admitted to Brookdale on October 4,

where the ulcer was described as stage IV and more than 4 cm in diameter. Decedent returned to

SSI the same day. On October 26, there was a small area of necrotic tissue documented on the

left side of the ulcer.

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Decedent was transferred to Brookdale on October 27, 2009, and the sacral ulcer was

documented as measuring 8 x 6 x 4.6 cm with tunneling. On October 29, Decedent had a bedside

debridement performed. Decedent remained at Brookdale through November 3, 2009, marking

the end of the treatment she received from Defendants.

Decedent was transferred to Coler Goldwater on November 4, 2009, for further treatment

of the sacral pressure ulcer she allegedly sustained at Brookdale and SSI. On November 25, a CT

scan of the sacrum revealed a sacral decubitus ulcer extending to the inferior coccyx and sacrum

with boney erosion and abnormal inferior presacral soft tissue.

On February 24, 2010, Decedent underwent a myocutaneous flap procedure of the

sacrum with intravenous antibiotics for six weeks. Decedent was noted to have had a well-healed

surgical incision by March 26, 2010. In early May 2010, Decedent had intact skin, but by May

11, 2010, she was noted to have an open area on the right buttock. On May 18, a CT scan of the

pelvis documented that the sacral ulcer was healed and there was no evidence of acute

osteomyelitis. On several occasions in August 2010 and January 2011, the surgical incision scar

re-opened and healed. Two areas of the sacral flap surgical scar had opened by June 8, 2011, and

the surgical scar re-opened again by August 2011. By October 26, 2011, the open scar on the

sacral wound was noted as healed.

On July 24, 2015, the Decedent passed away.

Plaintiff alleges that Brookdale and SSI deviated from the standard of care in the

prevention and treatment of Decedent’s sacral pressure ulcer, including by failure to implement a

care plan in a timely manner. Plaintiff further alleges that these departures proximately caused

the development and/or worsening of Decedent’s pressure ulcer.

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In evaluating a summary judgment motion in a medical malpractice action, the Court

applies the burden shifting process as summarized by the Second Department: “[A] defendant

must make a prima facie showing either that there was no departure from good and accepted

medical practice, or that the plaintiff was not injured by any such departure” (Rosenzweig v

Hadpawat, 229 AD3d 650, 652 [2d Dept 2024]). “In order to sustain this prima facie burden, the

defendant must address and rebut any specific allegations of malpractice set forth in the

plaintiff’s complaint and bill of particulars” (Martinez v Orange Regional Med. Ctr., 203 AD3d

910, 912 [2d Dept 2022]). “Once a defendant physician has made such a showing, the burden

shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the

elements on which the defendant met the prima facie burden. Summary judgment is not

appropriate in a medical malpractice action where the parties adduce conflicting medical expert

opinions.” (Rosenzweig at 652 [2d Dept 2024] [internal quotation marks and citations omitted].)

However, “expert opinions that are conclusory, speculative, or unsupported by the record are

insufficient to raise triable issues of fact” (Barnaman v Bishop Hucles Episcopal Nursing Home,

213 AD3d 896, 898-899 [2d Dept 2023]).

In support of their motion (Seq. No. 8), Brookdale and SSI submit an expert affirmation

from Barbara Tommasulo, M.D. (“Dr. Tommasulo”), a licensed physician board certified in

internal medicine and in geriatric medicine.

Dr. Tommasulo opines that all treatment and care rendered by the physicians, nurses, and

staff at Brookdale and SSI were in accordance with the standard of care during Decedent’s

various admissions from May through November 2009. With respect to preventative care, Dr.

Tommasulo opines that appropriate and necessary interventions and treatments of Decedent’s

comorbidities were provided, including nutritional supplements, appetite stimulants, and feeding

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assistance. She opines that appropriate skin care plans within the standard of care were initiated

and implemented, including use of pressure relieving and air mattresses, turning and

repositioning, incontinent management, wound dressings, and cleansing agents as ordered. She

references documentation of Braden risk scoring, nursing flowsheets reflecting daily assessments

and preventative interventions, and frequent turning and repositioning. Dr. Tommasulo further

opines that there were occasions when Decedent refused treatment, including refusal of physical

therapy, refusal to remain positioned on her side, removal of propping pillows despite

explanation, and refusal of certain medications, and that such conduct limited the effectiveness of

preventative measures.

On the issue of proximate causation, Dr. Tommasulo opines the worsening of Decedent’s

sacral pressure ulcer was unavoidable despite proper treatment. Dr. Tommasulo opines that

Decedent had an overall compromised condition, was unable to ambulate due to multiple

sclerosis, and was in a “stressed” catabolic state. She opines that Decedent was administered

high doses of corticosteroids and immunosuppressant medications for multiple sclerosis and

neuromyelitis optica, which impaired her ability to heal, contributed to skin breakdown, and

increased susceptibility to infection. Dr. Tommasulo further notes that Decedent’s anemia and

hypertension further increased skin vulnerability and impaired healing.

Dr. Tommasulo opines that despite the implementation of all reasonable and necessary

preventative interventions and wound treatments, the sacral wound inevitably progressed in size

and staging due to Decedent’s extensive comorbid medical conditions, necessary medications,

nutritional compromise, immobility, and the inescapable pressure and shear inherent in daily care

over a prolonged admission. She opines that Defendants rendered proper skin care, did not depart

from the standard of care, and that Decedent’s skin injuries, impaired healing, and alleged

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damages were not causally related to any care and treatment rendered by Brookdale or SSI, but

were unavoidable given her condition.

Based on the submissions, Defendants have established prima facie entitlement to

summary judgment on the issues of standard of care and proximate causation, by setting forth

expert opinions that Brookdale and SSI complied with the applicable standard of care and that

different treatment would not have prevented the development or progression of Decedent’s

sacral pressure ulcer. The burden therefore shifts to Plaintiff to raise a triable issue of fact.

In opposition, Plaintiff submits an expert affirmation from Marc Shepard, M.D. (“Dr.

Shephard”), a licensed physician board certified in internal medicine.

Dr. Shepard opines that Defendants departed from the standard of care in several

instances in preventing and treating Decedent’s sacral pressure ulcer and that these departures

proximately caused her claimed injuries. Specifically, Dr. Shepard states that Brookdale and

SSI’s treatment plans were not properly or timely implemented or appropriately documented, and

that such departures led to the development and progression of the ulcer, necessitating multiple

debridements, intravenous antibiotics, and prolonged care.

Dr. Shepard opines that there was a failure to timely implement a pressure ulcer

prevention strategy upon Decedent’s admission to Brookdale on June 15, 2009. The expert

opines that while Decedent did not have a documented pressure ulcer upon admission, she

received a Braden Scale score of 18 and required a pressure ulcer prevention plan, but that no

such plan was initiated until June 23, 2009. Two days after initiating the plan, on June 25, the

Decedent was documented to have a stage II pressure ulcer and her Braden score had dropped to

14. Dr. Shepard opines that from June 15 to June 23, eight days elapsed without implementation

of a pressure ulcer preventative protocol despite documented risk for skin breakdown. According

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to Dr. Shepard, the failure to timely implement preventative measures upon admission and the

eight-day delay in initiating a pressure ulcer prevention protocol constituted departures from the

standard of care.

While Defendants’ expert opines that the ulcer’s progression was inevitable due to

Decedent’s comorbidities, medications, nutritional compromise, and refusals of care, Plaintiff’s

expert opines that the extent of Decedent’s pressure ulcers was avoidable. Dr. Shepard opines

that given Decedent’s multiple comorbidities increasing her skin breakdown risk, as well as her

history of a stage II sacral pressure ulcer, the standard of care required strict adherence to

pressure prevention protocols and that the lack of such adherence resulted in the progression of

the ulcer.

He opines that Defendants failed to initially implement systematic screening with score

and risk stratification, including failing to document Decedent’s pressure ulcer when it was stage

I. Dr. Shepard also contests Dr. Tommasulo’s reliance on documentation referencing pressure

relieving mattresses and preventative measures, noting that the record lacks precise

documentation of when a pressure relieving device was placed. Specifically, he observes that the

planned intervention for a pressure relieving mattress was dated June 27, two days after

documentation of a stage II ulcer on June 25, four days after the initiation of the pressure ulcer

prevention plan on June 23, and twelve days after Decedent’s admission to Brookdale on June

15. Dr. Shepard further opines that the documentation of turning and repositioning was also

inconsistent and improperly recorded, making it unclear whether such measures were performed

on specific dates.

On the issue of proximate causation, Dr. Shepard opines that the above delays in proper

assessment and implementation of treatment plans for Decedent’s pressure ulcer led to its

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degradation and limited healing. Dr. Shepard also counters the Defendants’ expert opinion that

the claimed injuries were inevitable, stating that the failure to implement preventative measures

for eight days deprived the Decedent of a better outcome. Plaintiff’s expert states that given

Decedent’s Braden score of 18 and her history of a stage II sacral pressure ulcer, a pressure

prevention plan should have been implemented on June 15, 2009. Moreover, the record notes a

two-day delay between the documentation of Decedent’s stage II ulcer and Braden score of 14 on

June 25 and the implementation of a pressure relieving mattress as part of the pressure

prevention plan on June 27. The expert opines that preventative measures should have been

implemented upon admission on June 15, 2009, and that these delays and failures caused the

Decedent’s ulcer to develop and allowed it to progress to stages III and IV.

As discussed above, Plaintiff’s expert opines that Decedent’s comorbidities increased her

skin breakdown risk but that the failure to implement preventative measures on admission to

Brookdale on June 15, 2009, was a clear deviation and departure from the standard of care. The

expert opines that while the Decedent’s comorbidities contributed to Defendants’ alleged

departures from the standard of care having a “catastrophic effect,” proper pressure ulcer

protocol was not implemented. Dr. Shepard states that the departures in treatment allowed the

pressure ulcer to progress to stage IV.

Plaintiff’s expert offers a conflicting opinion that the worsening of Decedent’s sacral

pressure ulcer could have been prevented with the proper assessment and timely and consistent

treatment, and the movants’ failure to timely and consistently implement a treatment plan

deprived Decedent the chance to avoid developing a stage IV sacral pressure ulcer that required

multiple debridements and prolonged intervention and care. The record indicates that when the

Decedent was admitted to Brookdale on June 15, 2009, her sacral pressure ulcer had healed. The

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first indication that the patient had a recurring stage II wound was noted on June 25. Between

June 15 and June 23, protocols to prevent pressure ulcers were not documented in the record.

Plaintiff’s expert opines that this was a deviation from the standard of care. The expert also

thoroughly considers the effect of the patient’s co-morbidities on prevention, development and

treatment of the sacral ulcer. The Court finds that his opinions are detailed and based on the

records submitted with this motion. Plaintiff has thus raised triable issues of fact that preclude

summary judgment. Plaintiff also raises issues of fact on whether these departures were the

proximate cause of the development and deterioration of Decedent’s pressure ulcer, as well as

Decedent’s injuries claimed herein.

Accordingly, Defendants’ motion for summary judgment (Seq. No. 8) is denied.

It is hereby:

ORDERED that Brookdale and SSI’s motion (Seq. No. 8) for an Order, pursuant to CPLR

3212, granting summary judgment in their favor and dismissing Plaintiff’s Complaint against them

in its entirety, is DENIED.

This constitutes the decision and order of this Court.

ENTER.

_______________________________ Hon. Consuelo Mallafre Melendez J.S.C.

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