Kitt v. Okonta

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

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.