SUPREME COURT OF THE STATE OF NEW YORK. Plaintiff. The following papers have been read on this motion: Notice of Motion dated 12/15/05

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1 SHORT FORM ORDER fcfirl SUPREME COURT OF THE STATE OF NEW YORK Present: HON. LAWRENCE J. BRENNAN Acting Justice Supreme Court x DIANE SHERRRD TRIAL PART: 52 NASSAU COUNTY -against- Plaintiff INDEX NO.: 18874/00 MOTION DATE: 1/17/06 SUBMIT DATE: 2/11 SEQ. NUMBER - 5 NORTH SHORE UNIVERSITY HOSPITAL, et. al. Defendant( s) x The following papers have been read on this motion: Notice of Motion dated 12/15/05 Motion by defendant United Presbyterian Residence ("UPR") for an Order pursuant to CPLR 3212, granting summary judgment in favor ofupr, is hereby denied. In this action, the plaintiffs seek to recover damages for medical malpractice and negligence arising out of the care and treatment rendered to the decedent William Sherrard, by the defendants. Insofar as defendant UPR is concerned, the plaintiffs' Bill of Particulars alleges that: " The negligent acts of defendant (UPR commenced on June 23, 1998 and continued through July 1, Among other things, the plaintiffs' Bill of Particulars alleges that UPR was negligent " in failing to provide adequate and proper medical and nursing care for treatment of the

2 ,. decubitus (i.e., a tye ofulcerj in plaintiff William Sherrard' s sacral area that was present upon admission. Defendant UPR moves for summary judgment on the grounds that: "The evidence in admissible form indicates that at no time did staff at (UPRJ deviate from accepted standards of practice with respect to the care and treatment rendered to Mr. Sherrard." In support of the motion, UPR submits the Affidavit of Vincent Marchello, M.D. Dr. Marchello states that: "In 1987, Mr. Sherrard suffered a debilitating cerebrovascular accident, more than eleven (11) years prior to his admission to UPR/ (and thatj He was never able to care for himself again." Dr. Marchello further states that: "Care was provided at home by 24 hour nursing assistance, seven days per week." Dr. Marchello goes on to state that: "Prior to the June 23, 1998 admission to UPR, Mr. Sherrard had been a resident and patient of North Shore University Hospital at Manhasset (hereinafter NSUH Manhasset' ). (and thatj He had previous to his admission to (NSUH ManhassetJ, been a resident and patient of multiple hospitals and skilled nursing facilities. " Dr. Marchello furthermore states that: "Mr. Sherrard was an individual who, due to his medical history, peripheral vascular disease, shoulder fracture, and inability to move, was at tremendously high risk of ulceration." Dr. Marchello additionally states that: "The ulcers appeared at NSUH Manhasset and deteriorated to stage IV at the NSUH facility. With respect to UPR' s treatment of the ulcers, Dr. Marchello states that:

3 - - During Mr. Sherrard' s residency at (UPR), he was appropriately treated for the prevention and healing of decubitus ulcers. (and that) Each treatment followed wound protocols at the facility." Dr. Marchello further states that: "When Mr. Sherrard' s condition became such that more specialized care in an appropriate setting was required, UPR timely and properly transferred Mr. Sherrard to an appropriate medical facility, North Shore University Hospital at Plainview. " Dr. Marchello concludes that: "It is (his) opinion within a reasonable degree of medical certainty that the care rendered at the UPR facility was not the proximate cause of the stage IV sacral decubitus ulcer sustained by Mr. Sherrard, especially in light of the fact that the sacral ulcer was present at this stage upon admission to the facility. The Court holds that Defendant UPR has made a prima facie showing for the grant of summary judgment in its favor. The burden of proof is now on the plaintiffs "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition to the instant application, the plaintiff has submitted the Affirmation of Daniel Buff, M. which contains the following averments: "Defendant, United Presbyterian Residence was negligent and/or departed from accepted standards of medical and nursing practice in the care and treatment provided to William Sherrard' s sacral decubitus ulcer as follows:

4 (a J upon admission to the Residence, it was noted that he had a Stage IV sacral ulcer and he was placed on an air mattress than an accu-care bed which would have reduced the. pressure to his -sacral. area; (b J the sacral decubitus ulcer was black with a foul odor, which called for examination and debridement by a surgeon; ( c J seven days after admission, the nursing staff was ordered to keep William Sherrard off his sacral area; (dj in relying upon the patient to turn and position himself rather than have the nursing staff perform this function; ( e J in permitting the patient to remain in a wheelchair for excessive periods in the presence of a significant sacral ulcer; (fj in failing to provide the appropriate pressure-relieving device while the patient was out of bed and in a chair. Dr. Buff concludes that: "Based upon (his J review of the evidence herein, it is (hisj opinion, within a reasonable degree of medical certainty, that (UPRJ departed and violated accepted standards of care in the medical and nursing management of William Sherrard' s sacral decubitus ulcer during his admission to (UPRJ from June 23, 1998 until July 1, 1998, and that those departres led to exacerbation of William Sherrard' s sacral ulcer during that period." Dr. Buff further states that: "The basis for defendant' s motion for summary judgment is the fact that William Sherrard' s sacral ulcer was measured as 5 x 7 cm on admission and measured 5. 2 x 6. 8 cm upon discharge. However, it is probable that there was significant deep tissue injury and infection that was not readily apparent because debridement as needed and recommended by the plastic surgeon at

5 North Shore University Hospital was not performed. (emphasis addedj It is the rule that: "' To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (l) the standard of care at the facility where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of the injury " (Texter v Middletown Dialysis Center, 22 Ap3d 831, quq!iilggzliot Long Is. Home, Ltd., 12 AD3d ). The affirmation of Dr. Buffhas demonstrated deviations from the standard of care on the part of UPR, and that the alleged breach of those standards was the proximate cause of the injury alleged, to wit: exacerbation of Mr. Sherrard' s stage IV sacral ulcer. Moreover, the medical opinions of Dr. Marchello and the medical opinions of Dr. Buff necessarily create questions of fact, the existence of which precludes the granting of summary judgment. ( Zuckerman v City of New York, 49 NY2d ). Based upon the foregoing, the defendant' s motion made pursuant to CPLR 3212 and which seeks summary judgment dismissing the plaintiffs' complaint is hereby denied. This shall constitute the Decision and Order of the Court. May 1", 200 1:NTERED MAY CE. BRENNAN e Court Justice NASSAU COUNT COUNTY CLERK'S OFFICE!