FILED: NEW YORK COUNTY CLERK 02/03/ :14 PM INDEX NO /2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/03/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X LISA HAMMER, as Executrix of the Estate of ROBERT GOODMAN, Deceased, and on behalf Index No.: /2016 of decedent s distributees, Plaintiff, PLAINTIFF S VERIFIED BILL OF PARTICULARS -against- AMSTERDAM NURSING HOME CORP., and SOUTH NASSAU COMMUNITIES HOSPITAL, Defendant(s) X Plaintiff, LISA HAMMER, as Executrix of the Estate of ROBERT GOODMAN, Deceased, and on behalf of decedent s distributees, by her attorney, MANGAN GINSBERG, LLP, pursuant to the Demands of Defendant, AMSTERDAM NURSING HOME CORP., for a Verified Bill of Particulars, alleges and responds as follows: 1. Dates of Negligent Acts or Omissions: During the course of plaintiff s decedent s admission to the defendant facility on or around April 2, 2015 June 16, Address: 1060 Amsterdam Ave, New York, NY Statement of every act of negligence, omission or commission: Defendant, AMSTERDAM NURSING HOME CORP., failed to heal or improve a decubitus sacral ulcer and lateral malleolus wounds over the course of a two-month admission because of lack of basic pressure relief; failure in preventing ROBERT s pressure ulcer from developing into a Stage IV sacral ulcer with bone exposure; failure to turn and position plaintiff s decedent, ROBERT, every two hours while in bed or chair to shift weight or encourage weight shifting every hour; failure to use proper devices; failure to provide adequate wound care and debridement; failure to transfer ROBERT out of his chair despite his and his daughter s frequent complaints to staff; 1 of 10

2 failure to perform adequate and appropriate skin assessments; failure to maintain an adequate diet and nutrition; negligence in allowing ROBERT to sit in soiled diapers for extended periods of time; failure in maintaining proper hygiene, specifically in failing to provide ROBERT with a clean and dry peri area; failure in properly treating the ulcer at all stages; failure to update and maintain proper care plan and medical records, specifically wound documentation; failure to use ordinary and reasonable care in the delivery of services to the plaintiff s decedent, and ensuring that services were delivered; failure to take reasonable precautions to prevent the development of ROBERT s injuries; failure to provide sufficient nursing staff knowing that insufficient staff would result in an inability to provide the necessary care and services; failure to institute a plan of care to prevent skin breakdown; and failure to use reasonable care in the employment, training and supervision of its employees to find out whether they were competent to do their work without danger of harm to others by failing to conduct reasonable background inquiries and required checks regarding lack of convictions and abuse. 4. Persons performing such acts, or failing to act: Said persons are in the exclusive knowledge of the defendants herein and include but are not limited to: all nurses, nurses aides, physicians, staff and agents employed by and/or charged with providing care to Robert Goodman while he resided at defendant facility. 5. Accepted medical practice/customs violated: Objection. Beyond the scope of Rule 3043(a) of the CPLR and/or calls for evidentiary material or information in the form of or to be gleaned from, expert testimony and, therefore, overly broad, and improper. See, Felock v. Albany Medical Center Hospital 1999 WL (3rd Dept. 1999); Liddell v. Cree, 233 AD 2d 593, 649 NYS 2d 101 (3rd Dept. 1996); Dellagio v. Paul, 250 AD 2d 806, 673 NYS 2d 212 (2nd Dept., 1998) Heyward v. Ellenville Community Hospital 215 AD 2nd 967; 627 NYS 2d 167 (3rd 2 of 10

3 Dept. 1995); McKenzie v. St. Elizabeth Hospital, 81 AD 2d 1003, 440 NYS 2d 109 (2nd Dept 1981); Rockefeller v. Hwang, 106 AD 2d 817, 484 NYS 2d. 206 (3rd Dept 1984); Wadler v. Stern, 124 AD 2d 725 (2nd Dept. 1986); Patterson v. Jewish Hospital and Medical Center of Brooklyn, 94 Misc. 2d 680, 405 NYS 2d 194, aff d 65 AD 2d 553, 409 NYS 2d 124 (2nd Dept. 1978). Defendant, its agents, servants and/or employees should be fully aware of the accepted medical practices and customs. Plaintiff reserves the right to supplement this response upon further discovery. 6. See responses to demand No Plaintiff is not alleging improper or defective equipment at this time. Plaintiff reserves the right to supplement this response upon further discovery. 8. Violations: 42 CFR (c) Pressure Sores, and 10 NYCRR (c) indicates "Based on the comprehensive Assessment of a resident, the facility must ensure that (l) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and (2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." The NYS rules and regulations-10 NYCRR (c) (1) adds to the first part of the regulation "demonstrates that they were unavoidable despite every reasonable effort to prevent them." The process of analyzing whether or not an ulcer is avoidable involves determining if the resident was properly assessed for the risk, the problem was appropriately care planned for and the interventions were implemented. 3 of 10

4 42 CFR and 10 NYCRR Quality of care "Each resident must receive and facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Intent-The facility must ensure that the resident obtains optimal improvement or does not deteriorate within the limits of a resident's right to refuse treatment, and within the limits of recognized pathology and the normal aging process. In any instance in which there has been a lack of improvement or a decline, the survey team must determine if the occurrence was unavoidable of avoidable. A determination of unavoidable decline or failure to reach highest practicable well-being may be made only if all of the following are present: An accurate and complete assessment (See ); A care plan which is implemented consistently and based on information from the assessment; Evaluation of the results of the interventions and revising the interventions as necessary. 42 CFR (b): A facility must make a comprehensive assessment of a resident's needs, using the RAI specified by the State. The assessment must include at least the following: identification and demographic information, customary routine, cognitive patterns, communication, vision, mood and behavior patterns, psychosocial well-being, physical functioning and structural problems, continence, disease diagnoses and health conditions, dental and nutritional status, skin conditions, activity pursuit, medications, special treatments and procedures, discharge potential, documentation of summary information regarding the additional assessment performed through the resident assessment protocols and documentation of participation in assessment. 4 of 10

5 42 CFR (1) Clinical Records "The facility must maintain clinical records on each resident in accordance with accepted professional standards and practices that are (i) Complete; (ii) Accurately documented; (iii) Readily accessible; and (iv) Systematically organized... " According to the Guidelines, "A complete clinical record contains an accurate and functional representation of the actual experience of the individual in the facility. It must contain enough information to show that the facility knows the status of the individual has adequate plans of care and provides sufficient evidence of the effects of the care provided. Documentation should include a picture of the resident's progress, including response to treatment, change in condition, and changes in treatment." 42CFR (b) (I) indicates that the facility must immediately inform the resident, consult with the resident's physician, and if known, notify the resident's legal representative or an interested family member when there is... (B) A significant change in the resident's physical, mental, psychosocial status (i.e., a deterioration in health, mental or psychosocial status in either life threatening conditions or clinical complications); (C) A need to alter treatment significantly (i.e., a need to discontinue an existing form of treatment due to adverse consequences or to commence a new form of treatment. Plaintiff reserves the right to supplement this response upon further discovery. 9. Plaintiff objects to this demand to the extent that it is overly broad. Notwithstanding and without waiving said objection, during the relevant period of negligence, April 2, 2015 June 16, 2015, plaintiff was not hospitalized at any facility other than that of defendants herein, therefore this information better known and available to defendants. 5 of 10

6 10. Injuries: Merging of decubitus sacral ulcer and lateral malleolus wounds to create a Stage IV pressure ulcer on plaintiff s decedent s sacrum with bone exposure, tunneling and necrosis, a large amount of foul serosanguinous (bloody) seepage; infection from exposure to fecal contamination; altered mental status; unmanaged pain and suffering; violation of dignity and death. 11. DOD: June 16, Medical cause of death: Objection. Beyond the scope of Rule 3043(a) of the CPLR and/or calls for evidentiary material or information in the form of or to be gleaned from, expert testimony and, therefore, overly broad, and improper. See, Felock v. Albany Medical Center Hospital 1999 WL (3rd Dept. 1999); Liddell v. Cree, 233 AD 2d 593, 649 NYS 2d 101 (3rd Dept. 1996); Dellagio v. Paul, 250 AD 2d 806, 673 NYS 2d 212 (2nd Dept., 1998) Heyward v. Ellenville Community Hospital 215 AD 2nd 967; 627 NYS 2d 167 (3rd Dept. 1995); McKenzie v. St. Elizabeth Hospital, 81 AD 2d 1003, 440 NYS 2d 109 (2nd Dept 1981); Rockefeller v. Hwang, 106 AD 2d 817, 484 NYS 2d. 206 (3rd Dept 1984); Wadler v. Stern, 124 AD 2d 725 (2nd Dept. 1986); Patterson v. Jewish Hospital and Medical Center of Brooklyn, 94 Misc. 2d 680, 405 NYS 2d 194, aff d 65 AD 2d 553, 409 NYS 2d 124 (2nd Dept. 1978). Plaintiff reserves the right to supplement this response upon further discovery. 13. DOB: xx/xx/1927; Address: 3861 Carrel Blvd. Oceanside NY Conditions for Treatment by Defendant: Activities of Daily living ( ADL ); ADL rehab; incontinent rehab; improving mood state; prevention of falls; nutritional monitoring; insuring skin integrity and wound care and prevention. 15. An autopsy was not performed. 6 of 10

7 16. Special damages: $100,000 further particulars to be supplied under separate cover. a. Hospitals: particulars to be provided under separate cover. b. Nurses: particulars to be provided under separate cover. c. Physicians: particulars to be provided under separate cover. d. Medical Supplies: N/A e. General expenses: N/A f. Funeral Expenses: particulars to be provided under separate cover. g. Other: Further particulars to be provided under separate cover. 17. Plaintiff responds to demand No. 17 (a-f) as follows: Objection. Plaintiff s decedent s employment information is not relevant because plaintiff is not claiming lost wages. Plaintiff reserves the right to supplement this response. 18. Next of Kin or distributees: a. Randi Goodman daughter b. Jaimie Goodman son c. Lisa Hammer - daughter 19. Place of birth, and name at that time: New York, New York; Robert Goodman 20. Not applicable. Spouse is deceased and not a next of kin or distributee. 21. Not applicable. See, response to demand No Plaintiff has not previously alleged any claims for the same or similar injuries as are claimed herein. 23. Collateral Source Reimbursement: Medicaid and/or Medicare are not Collateral Source s as a matter of law. See, CPLR of 10

8 24. SSN: Objection. NY General Business Law 399-ddd(2) prohibits the public disclosure of an individual s Social Security Number. See, Meyerson v. Prime Realty Servs., LLC, 7 Misc. 3d 911, 796 N.Y.S.2d 848 (New York Cnty., Feb. 28, 2005); see also, Daly v. Metro. Life Ins. Co., 4 Misc. 3d 887, 782 N.Y.S.2d 530 (New York Cnty., May 20, 2004). Objections notwithstanding, plaintiff s decedent s Social Security Number is as follows: xxx-xx Plaintiff does not allege lack of informed consent. 26. Res ipsa loquitur: Not applicable. 27. An autopsy was not performed. 28. Death certificate: Issued on June 25, 2015 and provided under separate cover. 29. There was a proceeding in Surrogates Court to obtain Letters of Administration, under File No Copy of letters of administration: Provided under separate cover. Dated: New York, New York January 27, 2017 TO: FUMUSO, KELLY, SWART, FARRELL, POLIN & CHRISTESEN, LLP Attorneys for Defendant: AMSTERDAM NURSING HOME CORP. 110 Marcus Boulevard Hauppauge, NY (631) MANGAN GINSBERG LLP /s/ By: Jonathan Ginsberg, Esq. Attorneys for Plaintiff 80 Maiden Lane, Suite 304 New York, New York (212) of 10

9 CC: BARTLETT, McDONOUGH, & MONAGHAN, LLP Attorneys for Defendant: SOUTH NASSAU COMMUNITIES HOSPITAL 170 Old Country Road Mineola, NY (516) of 10

10 VERIFICATION STATE OF NEW YORK ) ) COUNTY OF NEW YORK ) ss.: Lisa Hammer, being duly sworn, deposes and says: I am the Plaintiff in the within action; I have read the forgoing Verified Bill of Particulars pursuant to the demand of AMSTERDAM NURSING HOME CORP. and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. /s/ Lisa Hammer 10 of 10