Kitt v. Okonta

2016 NY Slip Op 6955, 143 A.D.3d 601, 39 N.Y.S.3d 456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2016
• Docket: 2009 300414/10
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 30, 2015, which, to the extent appealed from, denied defendant Brookhaven Rehabilitation & Health Care Center’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Although Brookhaven made a prima facie showing that it did not depart from good and accepted medical practices (see Lopez v Gramuglia, 133 AD3d 424, 425 [1st Dept 2015]; Matos v Khan, 119 AD3d 909, 910 [2d Dept 2014]), the report of plaintiff’s medical expert raised triable issues of fact as to whether there was a departure and whether any departure was a proximate cause of decedent’s death. In particular, plaintiff’s expert opined that decedent presented to Brookhaven with symptoms and complaints indicative of a high risk for deep vein thrombosis and a pulmonary embolism (DVT/PE), which was not ruled out by testing done at a prior medical facility, that Brookhaven should have performed a diagnostic workup for DVT/PE and provided prophylactic anticoagulation treatment, and that it unreasonably delayed in sending decedent to the hospital when he was found on the floor vomiting 11 days after admission (see Bartholomew v Itzkovitz, 119 AD3d 411, 415 [1st Dept 2014]; Jiminian v St. Barnabas Hosp., 84 AD3d 647 [1st Dept 2011]).

Concur — Tom, J.P., Mazzarelli, Richter, Manzanet-Daniels and Webber, JJ.