Petrova v Ilnitskyy 2024 NY Slip Op 34563(U) December 29, 2024 Supreme Court, Kings County Docket Number: Index No. 3019/16 Judge: Genine D. Edwards 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. [FILED: KINGS COUNTY CLERK 01/02/2025 04:15 P~ INDEX NO. 3019/2016 NYSCEF DOC. NO. 227 RECEIVED NYSCEF: 01/02/2025
At an IAS Term, Part 80, of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 29' h day of December 2024. PRESENT: HON. GENINE D. EDWARDS, Justice. -------------------------------------------------------------------------x SOFJYA PETROVA, as Administrator of the Goods, Chattels and Credits, which were of GENYA KATS, deceased,
Plaintiff, DECISION AND ORDER
-against- Index No. 3019/16 (converted to e-filing)
fEDIR ILNITSKYY, M.D., Mot. Seq. 16, 15, and 18 NEW YORK METHODIST HOSPITAL, ALBERT KHASKI, M.0., Mu-I K, Kuo, M.D., OLGA PAVLOVA, R.N., MAGDI ANIS BEBAWI, M.D., HAYM SALOMON HOME FOR NURSING AND REHABILITATION, and NEW YORK PRESBYTERIAN HEALTH CARE SYSTEM,
Defendants. -------------------------------------------------------------------------x' The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Cross Motion, Affidavits (Affirmations) and Exhibits ...................... .................... 133-155; 156-176;213-215 Affirmations (Affidavits) in Opposition and Exhibits . . . . . . . . . . 186-189; 194-196; 200-207; 208-212 Reply Affirmations and Exhibits ...................... ..... 223; 224
In this action to recover damages for negligence/medical malpractice and violation of
the Public Health Law. (1) defendants Fedir Ilnitskyy, M.D., and New York Methodist Hospital
("Methodist'" and collectively with Fedir llnitskyy, M.D., the ·'Methodist defendants") jointly~
1 The caption confonns to its latest version as set forth in this Court's order, dated June 28, 2024. Defendants Olga Pavlova, R.N., and New York Presbyterian Health Care System never appeared in this action. See Methodist defendants' counsel's affinnation in support. dated March 25, 2024, ~ 10.
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(2) defendant Mu-I K. Kuo, M.D. (''Or. Kuo"), individually; and (3) defendant Haym Salomon
Home for Nursing and Rehabilitation ("HSH") individually; each moved (or cross-moved, as
applicable) for summary judgment dismissing all claims as against the Methodist defendants
and Dr. Kuo, and in the instance of HSH, dismissing all vicarious claims as against it stemming
from Dr. Kuo's alleged acts/omissions. Plaintiff Sofiya Petrova, as the administrator of the
Estate of her late mother. Gen ya Kats ("plaintiff') as well as non-moving defendant Albert
Khaski, M.D. ("Dr. Khaski") separately objected to all three motions.
Background
On January 6, 2015, plaintiffs decedent Genya Kats (the "patient'") passed away at the
age of 91 at a nonparty nursing home from "metastatic adenocarcinoma of the pancreas," with
other significant conditions of the "diffuse Lewy body disease," 2 "atherosclerotic
cardiovascular disease,'' and "'diabetes mellites." 3 Approximately seven months prior. on
May 13, 2014, 4 the patient (then living at her own home) presented to Methodist's emergency
room ("ER") with generalized jaundice of two weeks' duration, with the associated (and
progressively worsening) pruritis, nausea. and vomiting. 5 The patient's major comorbidities. at
the time, included: (1) hypertension; (2) left bundle branch block (a cardiac conduction
abnormality); (3) hyperlipidemia; (4) diabetes mellitus; (5) chronic kidney disease; and
2 ·•Diffuse Lewy body disease" is defined as "a degenerative cerebral disorder of the elderly, characterized initially by progressive dementia or psychosis. and subsequently by parkinsonian findings, usually with severe rigidity; other manifestations include involuntary movements, myoclonus. dysphagia, and orthostatic hypotension.'' Stedman's Medical Dictionary, Entry No. 254230 (online edition). 3 Office of Chief Medical Examiner's Report of Autopsy of the Patienfs Body, dated January 7. 2015. page 2. When quoting from the medical record, the Court spelled out abbreviations and corrected typographical errors. 4 All references are to calendar year 20 I 4, unless otherwise indicated. 5 Methodist's records, page 48 of 690. 2
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(6) monoclonal gammopathy of undetermined significance (a potential precursor to multiple
myeloma, a form of a plasma-cell malignancy). 6
A work-up at the ER revealed an obstructing pancreatic mass which (on cytology) was
confirmed as a Stage IV pancreatic adenocarcinoma. A biliary drain was placed as a palliative
measure. Considering the patient's deconditioned state and her multiple comorbidities, she was
not a candidate for surgery, chemotherapy, or any other cancer-directed therapy to reduce the
burden of her disease or to prolong her survival. In the ensuing months, the patient's
oncologists confirmed that her pancreatic carcinoma was not only incurable but also was
further metastasizing. The oncologists advised that the patient's only choice, given her ;·active
dying" status, was general palliative care. th As relevant to this action, the patient was hospitalized at Methodist from September 6
to September 15 th , with altered mental status, sepsis, aspiration pneumonia. and a possible
biliary tract infection that was accompanied by pancreatitis (the ••initial Methodist
hospitalization"). During that hospitalization, the patient was suffering from one sacral
pressure ulcer and from a right heel pressure ulcer (collectively, "PUs"). After treatment with th antibiotics and fluids, the patient was discharged from Methodist to HSH on September 15 .
The ulcers were evaluated by the wound care service and were treated by regular cleaning and
application of topical pharmacotherapies. rd The patient resided at HSH from September 15 th to November 23 • with some th interruptions for in-hospital treatments. On admission to HSH on September 15 • the patient
was suffering from a sacral PU and from bilateral heel PUs (a progression from her right heel-
6 Methodist's records, page 48 of 690. 3
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only PU at Methodist). During her residence at HSH, the patient's PUs were treated with
various topical therapies (including hydrogel, Dakin's solution, and calcium alginate dressings)
and with repositioning/offloading (including regular turning and repositioning as well as heel
offloading). In the course of her residence at HSH, the patient was seen multiple times by its
wound-care physician, Dr. Kuo. Approximately three weeks into the patient's admission at
HSH. on October 5th , Dr. Kuo recommended that the patient's sacral PU be debrided by a
general surgeon.
On October 14th , the patient was re-hospitalized at Methodist for three days until
October 17 th (the ··subsequent Methodist hospitalization"). At the inception of her subsequent
hospitalization, the patient required a transfusion of packed red blood cells for her anemia. She
was also administered intravenous antibiotics for her urinary tract infection and foot ulcer. At
discharge. she was prescribed a course of antibiotics. As relevant herein, the patient's sacral PU 1·
was treated with the TheraHoney wound dressing, whereas her let1-heel PU was surgically
debrided. Once the patient's condition was sufficiently stabilized, she returned to HSH where,
upon admission, she was noted to have been suffering from the sacral and left-heel PUs.
As noted, the patient succumbed to her metastasizing cancer at a nonparty nursing home
on January 5, 2015. Thirteen months later, on March 16, 2016. plaintiff(as the administrator of
the patient"s estate) brought the instant action against the Methodist defendants as well as
against (among others) Dr. Kuo and HSH. After discovery was completed and a note of issue
was filed, the instant motions/cross-motion were timely served. On August 18, 2024, the three
motions/cross-motion were submitted. Additional facts are noted when relevant to the
discussion below.
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Standard of Review
"A defendant moving for summary judgment ... must demonstrate the absence of any
material issues of fact with respect to at least one of the [two] elements of a cause of action
alleging medical malpractice: (I) whether the physician deviated or departed from accepted
community standards of practice, or (2) that such a departure was a proximate cause of the
plaintiff's injuries.,. Rosenthal v. Alexander, 180 A.D.3d 826, l 18 N. Y.S.3d 658 (2d Dept.
2020) (internal citation omitted). "When a defendant in a medical malpractice action
demonstrates the absence of any material issues of fact with respect to at least one of [the two]
elements, summary judgment dismissing the action should eventuate unless the plaintiff raises
a triable issue of fact in opposition." Schwartz v. Partridge, 179 A.D.3d 963. 117 N.Y.S.3d 300
(2d Dept. 2020) (internal citations omitted). "A physician's [expert affirmation] in opposition
to a motion for summary judgment must attest to the defendant's departure from accepted
practice, which departure was a competent producing cause of the injury.'' Shahid v. New York
City Health & Hasps. Corp., 4 7 A.D.3d 800, 850 N.Y.S.2d 519 (2d Dept. 2008). ''General and .
conclusory allegations unsupported by competent evidence are insufiicient to defeat a motion
for summary judgment." Id.
With regard to plaintiff's additional cause of action premised on an alleged violation of
Public Health La\v § 2801-d. liability under this statute ··contemplates injury to the patient
caused by the deprivation of a right conferred by contract, statute, regulation, code or rule,
subject to the defense that the facility exercised all care reasonably necessary to prevent and
limit the deprivation and injury to the patient." Van De Veerdonk v. North Westchester
Restorative Therapy & Nursing Ctr., 223 A.D.3d 702, 204 N.Y.S.3d 132 (2d Dept. 2024)
(internal quotation marks omitted). "[A] defendant moving for summary judgment dismissing a 5
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cause of action alleging deprivation of rights pursuant to Public Health Law§ 2801-d meets its
prima facie burden by submitting evidence that the plaintiff's injuries did not arise through any
action or negligence of its employees." Russell v. River Manor Corp .. 216 A.D.3d 827,
188 N.Y.S.3d 191 (2d Dept. 2023).
Discussion
Methodist Defendants
In support of their motion, the Methodist defendants submitted (among other
documents) the affirmation of Howard J. Guzik, M.D. ("Dr. Guzik"), a board-certified internist
with board sub-certifications in geriatrics and palliative care. In his affirmation, Dr. Guzik
addressed and discussed in detail the patient's poor prognosis from her terminal cancer and its
associated consequences, including the unavoidable development and persistence of her PUs.
In that regard. Dr. Guzik explained (in, 17 of his atlirmation) that:
"'[Bly the time of the [initial Methodist hospitalization in] September 2014 ... , [the patient] was a terminal cancer patient for whom palliative and hospice services were appropriately indicated. The 2014 [National Pressure Ulcer Advisory Panel] guidelines outline[ ] general principles that should guide pressure ulcer management in individuals receiving palliative care: ·Palliative care is focused on preventing and relieving suffering of the individual with life- threatening illness and his or her significant others through identification, assessment, and relief of distressing physical, psychosocial and spiritual issues, and pain. while neither hastening nor prolonging death. Palliative pressure ulcer care is not 'lack of care.' but care focused on comfort and limiting the extent or impact of the wound. Prevention of new pressure ulcers remains important; however, during the period of active dying, comfort and/or the individual's preference may override implementation of active prevention strategies.' However, despite these proper and indicated treatment recommendations, hospice was refused/declined by the [patient's] family ... " (footnote omitted).
More importantly. Dr. Guzik emphasized that plaintiff missed the big picture, which was
that "the presenting patient for this case was a terminal cancer patient of advanced age who
was going through the dying process and who likewise suffered from other chronic medical 6
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conditions that predisposed her to developing pressure ulcers [in the course of both her initial
and subsequent Methodist hospitalizations]." In Dr. Guzik's opinion the patienes family's
insistence for "·curative treatment'" (reinforced by her family·s concurrent refusal of hospice
care) was "unrealistic'' because the patient's PUs (as well as other stigmata of her body's
deterioration) were "part of the dying process, which could not be stopped." Dr. Guzik's
conclusion in that regard was corroborated by the deposition testimony of Dr. Kuo that "when
you have a patient who ·s had pancreatic cancer[,] with advanced age[,] with anemia, with
uncontrolled diabetes, with low albumin. with a failure to thrive ... [. herJ healing is set up for
failure . .. because [her] comorbidities . .. [are] holding her back from healing" (emphasis
added).
Dr. Kuo/HSH
In support of her motion (and in support of HSH's related cross-motion as to vicarious
liability), Dr. Kuo proffered the aflirmation of Alisha Oropallo, M.D. ("Dr. Oropallo"), a
board-certified general and vascular surgeon. Dr. Oropallo opined that Dr. Kuo ·s care and
treatment of the patient's PUs conformed with good and accepted standards of medico-surgical
practice. Dr. Oropallo further opined that the "myriad'' of the patient's comorbidities "not only
placed her at a heightened risk for the development of pressure ulcers, but also diminished her
ability to heal from [them]:· Dr. Oropallo noted that as if the aforementioned comorbidities
were not enough. the patient was also suffering from a "tortuous and calcified aorta" which
reduced blood flow through her heart, and which "significantly inhibit[ed] [her] body's ability
to heal wounds." Dr. Oropallo concluded that ''[t]he development and sustaining of pressure
ulcers can, and do occur, as did here. in the absence of negligence." and that Dr. Kuo 's care and
treatment of the patient "did not in any way cause or contribute to [her] alleged injuries." 7
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At a minimum, the Methodist defendants and Dr. Kuo/HSH each met their respective
prima facie burden as to the proximate cause element of plaintiff's claims to be entitled to
summary judgment. See Avgi v. Policha, _A.D.3d _ , _ N.Y.S.3d _ . 2024 N.Y. Slip
Op. 05951 (2d Dept. 2024 ); Mattocks v. El/ant, 231A.D.3d813, 219 N.Y.S.3d 715 (2d Dept.
2024); Campbell v. Ditmas Park Rehabilitation & Care Ctr., LLC, 225 A.D.3d 835,
208 N.Y.S.3d 220 (2d Dept. 2024 ); Nisevich v. Shore.front Ctr. for Rehabilitation & Nursing
Care, 216 A.D.3d 981, 188 N.Y.S.3d 684 (2d Dept. 2023 ); Russell v. River Manor Corp.,
216 A.D.3d 827, 188 N.Y.S.3d 191 (2d Dept. 2023).
Plaintiffs Opposition
In opposition to both motions (as well as in opposition to HSH's cross-motion), plaintiff
proffered an affirmation of a board-certified internist ("plaintiff's expert"). In essence,
plaintiff's expert opined that the Methodist defendants and Dr. Kuo (individually or in
combination) failed to: ( 1) --properly assess and document"' the patient's PUs; (2) update her
care plan; (3) call all necessary and proper wound consultations: and (4) notify the relevant
healthcare providers of the worsening status of the patient's PUs. On the subject of proximate
cause, plaintiff's expert opined in a convoluted fashion that "[j]ust because the [patient's]
family had decided not [to have her] ... undergo treatment for her pancreatic adenocarcinoma
in approximately May 2014. the remaining months of her life were severely compromised due
to the significant [and poorly treated PUs] and accompanying pain:·
Plaintiff's expert's atlirmation was conclusory and speculative, failed to address the
impact of the patient's advanced (and advancing) pancreatic cancer in the context of her
multiple comorbidities, and was lacking on the essential element of proximate cause. See
Mattocks v. El/ant, 23 l A.D.3d 813, 219 N .Y.S.3d 715; Campbell v. Ditmas Park 8
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Rehabilitation & Care Ctr., LLC, 225 A.D.3d 835, 208 N.Y.S.3d 220; Barnaman v. Bishop
Hucles Episcopal Nursing Home, 213 A.D.3d 896. 184 N.Y.S.3d 800 (2d Dept. 2023); Lowe v.
Japal. I 70 A.D.3d 70 I, 95 N.Y.S.3d 363 (2d Dept. 2019); Novick v. South Nassau
Communities Hosp., 136 A.D.3d 999, 26 N.Y.S.3d 182 (2d Dept. 2016).
It is well established that on the element of "causation, the plaintiff's evidence may be
deemed legally sufficient even if its expert cannot quantify the extent to which the defendant's
act or omission decreased the plaintiff"s chance of a better outcome or increased his injury, as
long as evidence is presented from which the jury may infer that the defendant's conduct
diminished the plaintiff's chance of a better outcome or increased his injury." Starre v. Dean,
229 A.D.3d 728, 215 N.Y.S.3d 490 (2d Dept. 2024) (italics and internal quotation marks
omitted). Assuming the truth of plaintiff's expert's position that .. the remaining months of (the
patient's] life were severely compromised due to [her] significant lPUs] and accompanying
pain,,. plaintiff failed to raise a triable issue of fact that "a reasonable person might conclude
that it was more probable than not that the defendant's departure was a substantial factor in
causing the plaintiffs injury." Whitehall v. Andrade. 231 A.D.3d I 094, 23 I A.D.3d 1094,
220 N.Y.S.3d 145 (2d Dept. 2024) (internal quotation marks omitted). More fundamentally,
"[a] finding of liability is not appropriate where [as is the instance here], to establish a
connection between a defendant's alleged departures and the plaintiff's injuries, the jury could
only rely on speculation." Whitehall v. Andrade, 231 A.D.3d 1094, 220 N.Y.S.3d 145.
As stated, the patient was of failing health and was suffering from the synergistic effects
of her multiple: (1) chronic medical conditions (e.g., diffuse atherosclerosis, diabetes mellitus
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Parkinson's disease, and "'plasma cell dyscrasia" 7); and (2) acute medical conditions (e.g.,
metastatic pancreatic cancer. pancreatic insufficiency, urinary tract infections. and
malnutrition). Indeed, the patient's situation was so hopeless that her family opted for non-
cancer-related palliative care with the inevitable consequence that the patient's overall
condition would (and did) worsen. Thus. even if there were departures from the standard of
care, plaintiff's expert failed to separate the effects attributable to the patient's comorbidities
and the effects, if any, attributable to any negligence or medical malpractice. Between the
patient's ··exocrine"8 pancreatic insufficiency (impairing her ability to digest and absorb
nutrients. leading, in turn. to malnutrition and hypoalbuminemia). her multifactorial anemia
necessitating intermittent transfusions (reducing oxygen delivery to her tissues), her diabetes
mellitus (impairing her skin function and predisposing her to the development and persistence
of PUs). her diffuse atherosclerosis (further impairing blood flow), and her chronically bedfast
state, plaintiff's expert failed to explain how any medical intervention would have bettered the
outcome of the actively dying patient.
Defendants' duty to the patient was to provide her with --reasonable care:· rather than
"doing everything·· at any cost, in all situations, and in a manner that would be inconsistent
with the overall goals of care. Plaintiff's expert failed to recognize and respect the realities and
limitations of the patient's dire condition and her impending death approximately seven months
after her initial cancer diagnosis. Instead of facing reality, plaintiff's expert noted, in the
7 "Plasma cell dyscrasia" is defined as .. [a] diverse group of diseases characterized by the proliferation of a single clone of cells producing a monoclonal immunoglobulin or immunoglobulin fragment,'' including "multiple myeloma." Stedman's Medical Dictionary, Entry No. 272100. 8 ··Exocrine" is defined {in relevant part) as ·'[d]enoting glandular secretion delivered onto the body surface." Stedman's Medical Dictionary, Entry No. 309720.
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abstract, the day-to-day variations in the measurements of each of the patient's PUs. Plaintiff's
expert's suggestions that any interobserver difference in the measurement was necessarily
attributable to the individual measurer's negligence, and that any intraday or inter-day variation
was likewise necessarily attributable to systematic bias and institutional negligence, were
speculative and unsupported by any facts in the record. In any event. "[a] failure to document
each element of the skin care protocol does not equate to a failure to perfonn each element or
to a cause of the ulcer itself."' Braunstein v. Maimonides Med. Ctr., 161 A.D.3d 675,
78 N.Y.S.3d 344 (1st Dept. 2018) (citing Topel v. Long ls. Jewish Med. Ctr., 55 N.Y.2d 682,
446 N.Y.S.2d 932 l 1981]). Further, any alleged omissions in the turning and positioning
schedules and in the wound-care records maintained by defendants could not have (in and of
themselves) injured the patient. See Shapiro v. Gurwin Jewish Geriatric Nursing &
Rehabilitation Ctr., 84 A.D.3d 1348, 923 N .Y.S.2d 894 (2d Dept.2011 ).
Dr. Khaski ·s Opposition
Dr. Khaski's opposition was not probative on the ultimate issue of proximate cause
because it addressed the alleged inconsistencies in the measurements of the patient' PUs.
The Court considered the parties' remaining contentions and found them either moot or
unavailing in light of its determination.
Conclusion
Accordingly, it is
ORDERED that the Methodist defendants' motion for summary judgment is granted,
and all claims as against them are dismissed with prejudice and without costs and
disbursements, and it is further
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ORDERED that Dr. Kuo's motion is granted, and all claims as against her are
dismissed with prejudice and without costs or disbursements, and it is further
ORDERED that HSH's cross-motion is granted, and all claims as against it for
vicarious liability insofar as predicated on Dr. Kuo s alleged acts and omissions are dismissed,
and it is further
ORDERED that the action is severed and continued against remaining appearing
defendants Albert Khaski, M.D., Magdi Anis Bebawi, M.D., and Haym Salomon Home for
Nursing and Rehabilitation. and it is further
ORDERED that to reflect the dismissal of the Methodist defendants and Dr. Kuo from
this action, the caption is amended as follows:
-------------------------------------------------------------------------X SOFIYA PETROVA, as Administrator of the Goods, Chattels and Credits, which were of GENYA KATS, deceased,
Plaintiff,
-against-
ALBERT KHA SKI, M.D., MAGO! ANIS BEBAWI, M.D., and HAYM SALOMON HOME FOR NURSING AND REHABILITATION,
Defendants. -------------------------------------------------------------------------X
; and it is further
ORDERED that the Methodist defendants' counsel is directed to electronically serve
a copy of this Decision and Order with notice of entry on the other parties' respective counsel
and to electronically file an affidavit of said service with the Kings County Clerk, and it is
further
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ORDERED that the parties are directed to appear remotely at the Alternative Dispute
Resolution Conference on March 19. 2025, at 10:00A.M.
This constitutes the Decision and Order of the Court.
enme D. Edwards J. S. C.
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