Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 480-481, 482-502, 503-504, 512, 513, 514, 519, 520-525, 526 DECISION & ORDER Defendant Rego Park Nursing Home (hereinafter “Rego Park”) moves the Court pursuant to CPLR §3212(b) & CPLR §3211(a)(7) for summary judgment and dismissal of Plaintiff’s Complaint for all claims against Rego Park. Plaintiff opposes Rego Park’s motions for summary judgment. Pursuant to a Stipulation between the Parties (NYSCEF 512), the return date for motion sequence 23 was February 28, 2023, with opposition papers due February 6, 2023, and reply papers due February 22, 2023. Rego Park filed reply papers on March 8, 2023 (NYSCEF 519). As this motion was heard on September 20, 2023, the Court finds that there has been no prejudice to the Plaintiff from their receipt of reply papers filed over 6 months before the return date. In the interest of justice, the Court rejects Plaintiff’s arguments set forth in the Notice of Rejection (NYSCEF 526). 22 NYCRR 202.1(b). Further, the Court accepts the submissions of all parties, in this case, of filings that exceed permitted page and word counts. 22 NYCRR §§202.1(b), 202.8-b. Initiated by the filing of a Summons and Complaint on July 20, 2015, Carolyn Mitchell as Administrator of the Estate of Steven Mitchell (“Decedent”) alleges negligence against several acute care hospitals and nursing homes in New York City for failure to properly care for Decedent’s existing pressure injuries (bedsores) and for failing to prevent the development of new pressure injuries between 2013 and his death in 2014. Decedent was a resident of Rego Park from May 3, 2013, until July 5, 2013, and July 22, 2013, until July 26, 2013. At the time of his admission in May 2013, Decedent had more than ten preexisting wounds. NYSCEF 500, pages 3, 6. Plaintiff alleges that Rego Park’s departures from the standard of care engendered the development of new pressure ulcers and worsening of preexisting pressure ulcers. In evaluating a summary judgment motion in a medical malpractice case, the Court applies the burden shifting process as stated by the Second Department: “The elements of a medical malpractice cause of action are a deviation or departure from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries. When moving for summary judgment, a defendant provider has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s bill of particulars. In opposition, the plaintiff must demonstrate the existence of a triable issue of fact as to the elements on which the defendant has met his or her initial burden. General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant['s]…summary judgment motion. Although summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact. In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant’s experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record.” Barnaman v. Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023] (internal citations, brackets, and quotation marks omitted). As a preliminary matter, expert witness for Rego Park, Nurse Heidi Huddleston Cross (“Nurse Cross”), established that she is qualified to opine on the care and treatment rendered by Rego Park; Nurse Cross was a wound and ostomy nurse practitioner for over 10 years, working in numerous hospitals and nursing homes throughout New York. Rego Park satisfied its prima facie burden to warrant summary judgment. Defendant’s expert, Nurse Cross, relying on facts found in the record and discussing alleged claims in the bills of particulars, opined that Decedent’s wounds were preëxisting at the times of admission to Rego Park, and as result of implementing the orders of the consulting wound care doctor, remained stable or improved during his time at Rego Park. Moreover, since Decedent did not develop any new wounds while at Rego Park despite his multiple comorbidities (hemorrhagic stroke status post craniotomy with ventriculostomy, contractures, seizures, chronic lung disease, peripheral vascular disease, history of infection with drug-resistant bacteria, tobacco use) Defendant’s expert opined this “proves that the plaintiff was receiving timely, adequate, and proper skin and wound care, such as turning and positioning.” NYSCEF 492, page 7. Moreover, relying on the deposition testimony of Dr. Chopra, consultant wound care physician, who had testified that in his longitudinal clinical assessment of the Decedent between May and June 2013, “[] I feel that since the patient did well…seeing how the wounds improved, I feel that my recommendations were carried out,” (NYSCEF 492 quoting the deposition of Dr. Chopra, NYSCEF 489, pages 114-115) Defendant’s expert opined that “no act or omission of [Rego Park] was either a deviation from accepted standards of care and/or a proximate cause of injury to the plaintiff-decedent…and [he] received good and proper care.” NYSCEF 492, pages 4, 11. In contrast, the Court finds that Plaintiff’s expert witness, Joyce Goldenberg M.D., is not qualified to opine on any matter in this case. See de Hernandez v. Lutheran Med. Ctr., 46 AD3d 517, 517-518 [2d Dept 2007] (internal citations and references omitted), “It is within the Supreme Court’s sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion.” “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field…the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable…Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered.” Roizman v. Stromer, 185 AD3d 978, 981 [2d Dept 2020] (internal citations, references and quotations omitted); see also DiLorenzo v. Zaso, 148 AD3d 1111 [2d Dept 2017]. Plaintiff fails to lay a foundation to support the reliability of her opinion regarding the standard of care in skilled nursing facilities or on the evaluation and management of pressure ulcers. Dr. Goldenberg graduated residency in Physical Medicine & Rehabilitation in 1988. NYSCEF 514, pages 28-29. Dr. Goldenberg’s CV indicates that she has worked since 1988 as a “Medical Director of large private practice [sic] in both free standing and health club facilities” providing “[c]omprehensive management of musculoskeletal and neuromuscular disorders” where she focuses on “sports medicine and pain management, offering physical therapy, occupational therapy and exercise training.” NYSCEF 514, pages 28. Dr. Goldenberg does not have privileges at any skilled nursing facility. Dr. Goldenberg does not state how many patients in skilled nursing facilities she regularly examines, nor how many patients with wounds she regularly treats. She has neither published articles, participated in any studies, nor completed continuing medical education related to care of patients in hospitals or on wound care. Further, Dr. Goldenberg does not indicate that she has any specific training, particularized knowledge, or expertise in wound care. Samer v. Desai, 179 AD3d 860 [2d Dept 2020]; Cf. Cerrone v. N. Shore-Long Is. Jewish Health Sys., 197 AD3d 449, 452 [2d Dept 2021]. Moreover, Dr. Goldenberg did not indicate how she had become familiar with the applicable standards of care as related to skilled nursing facilities and pressure ulcers. Shectman v. Wilson, 68 AD3d 848 [2d Dept 2009]; see also Mazella v. Hauser, 142 AD3d 1055 [2d Dept 2016]. Therefore, the Court finds that Dr. Goldenberg is not qualified to render an opinion as to the standard of care in skilled nursing facilities or on pressure ulcers; thus, her expert opinion is “of no probative value.” Feuer v. Ng, 136 AD3d 704 [2d Dept 2016]; see generally, Elstein v. Hammer, 192 AD3d 1075 [2d Dept 2021]; see also Tsimbler v. Fell, 123 AD3d 1009 [2d Dept 2014]. Even if the Court found that Dr. Goldenberg is qualified to render the opinions set forth in the record, Plaintiff nevertheless fails to establish the existence of any issue of triable fact. In opposition, Plaintiff fails to raise a material issue of fact to withstand summary judgment. Plaintiff’s expert witness relies on facts not in the record, misstates material facts in this case, feigns the existence of disputed facts, reaches untenable and perplexing conclusions, and incorrectly applies inapplicable regulations. Dr. Goldenberg, opined that “[w]ith proper turning he would have been unlikely to develop new pressure ulcers or had his exiting pressure ulcers progress to stage 3 and 4, or had healed pressure ulcers redevelop, and his existing pressure ulcers would have gotten better.” NYSCEF 514, page 2. Dr. Goldenberg further alleged that Rego Park failed to include a “turn chart” in the medical records (implying that the Decedent was not turned regularly), was not given proper heal and foot cushioning, applied wet dressings to stage IV wounds (instead of dry dressings), and deviated from its policies related to pressure ulcers. Plaintiff’s expert incorporates the same deposition testimony given by the wound care expert (NYSCEF 489, page 98), where Dr. Chopra indicated that all the wounds observed on admission had either healed or improved by the time of his last consult with the patient on June 21, 2013. Nevertheless, Dr. Goldenberg opined that when comparing the wound body diagrams of May 3, 2013, and July 22, 2013, Plaintiff’s decedent developed new wounds and others worsened, such that “[t]he major progress obtained under Dr. Chopra’s care as of June 21, 2013 was undone likely over the next two weeks.” NYSCEF 514, page 12, 13. However, Decedent was not a resident of Rego Park between July 5, 2013 and July 22, 2013, and thus Rego Park cannot be liable for the acts and omissions of an unrelated facility. Further, in the absence of evidence drawn from the record, conclusions reached about care provided by Rego Park between June 21 and July 5 are purely speculative and thus rejected. “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action.” Holschauer v. Fisher, 5 AD3d 553, 554 [2d Dept 2004]. Plaintiff’s expert failed to identify a specific wound that either worsened or developed while Plaintiff’s decedent was under the exclusive care of Rego Park. In fact, many of the wounds had in fact healed or otherwise improved. The contradictory and inconsistent assertions of Plaintiff’s expert witness are rejected to the extent that they “feign” issues of fact and are contradicted by the record. (“The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned.” Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439, 441 [1968] (internal citations and quotations removed); see also Wagner v. Parker, 172 AD3d 954 [2d Dept 2019]). Moreover, in response to Defendant’s demand to elucidate exactly which wounds were new or got worse, Plaintiff’s Supplemental Bill of Particulars (NYSCEF 487) flatly asserts “Plaintiff is not a physician, nor an expert at staging bedsore wounds. Upon information and belief…plaintiffs [sic] existing bedsore wounds progressed to Stage III and Stage IV while plaintiff was a patient at defendant REGO PARK, and plaintiff developed new bedsore wounds that progressed to Stage III and Stage IV while plaintiff was a patient at defendant REGO PARK.” Since neither counsel for Plaintiff nor Plaintiff’s expert witness have identified any new or worsened wounds while Decedent was under the exclusive care of Rego Park, Plaintiff fails to raise an issue of fact to withstand Rego Park’s prima facie entitlement to summary judgment. “Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment.” Diaz v. NY Downtown Hosp., 99 NY2d 542, 544 [2002]. Plaintiff’s expert makes other vague, conclusory, and inchoate allegations regarding Decedent’s care at Rego Park that fail to raise an issue of fact: “[P]oor infection control…lack of documentation of all pressure ulcers, lack of medication applied to wounds…pneumonia because of poor positioning…[development of a urinary infection at Rego Park]…[development of bacterial pneumonia]…sustained a fall due to negligent care”. “[E]xpert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact.” Wagner v. Parker, 172 AD3d 954, 955 [2d Dept 2019]. The Appellate Division has observed that “a plaintiff cannot defeat a summary judgment motion that made out a prima facie case by merely asserting, without more, a new theory of liability for the first time in the opposition papers.” Townsend v. Vaisman, 203 AD3d 1199, 1203 [2d Dept 2022], quoting Biondi v. Behrman, 149 AD3d 562, 563-564 [1st Dept 2017]; see also Palka v. Vil. of Ossining, 120 AD3d 641, 643 [2d Dept 2014] “A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars;” see also Anonymous v. Gleason, 175 AD3d 614 [2d Dept 2019]. Here, Plaintiff did not allege in either its Complaint or Verified Bills of Particulars (NYSCEF 499, 487, 486, 485) that Rego Park failed to follow specific wound care protocols, incorrectly documented social determinants of health, developed a urinary tract infection, used inadequate infection control measures, developed bacterial pneumonia, sustained a fall, delayed treatment after the fall, or failed to use lower extremity offloading devices. As such, Plaintiff’s new claims cannot raise issues of fact to preclude summary judgment and are rejected to the extent these are submitted in opposition to Rego Park’s prima facie showing of entitlement to summary judgment. Since Plaintiff’s expert has failed to raise a triable question as to whether Rego Park breached the standard of care, as a matter of law, Rego Park is not the proximate cause of any injuries, including the death of the Decedent almost a year later. “[Plaintiff's] expert’s affidavit contained bare, conclusory allegations based on pure speculation, and thus, it failed to sufficiently raise an issue of fact as to whether the alleged misconduct of [defendants] substantially contributed to the decedent’s demise.” White v. Southside Hosp., 5 AD3d 677, 678 [2d Dept 2004]); see also Anzolone v. Long Is. Care Ctr., Inc., 26 AD3d 449 [2d Dept 2006]; Henry v. Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 AD3d 739 [2d Dept 2017]. Plaintiff does not oppose the branch of Rego Park’s motion seeking dismissal of the punitive damage claim. Plaintiff failed to specifically cite any applicable laws, statutes, or regulations that Rego Park allegedly violated in support of its claim under Public Health Law §2801 et seq. Liability under this section differs from a claim for medical malpractice, such that it “contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule.” Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178, 179 [1st Dept 2002]; see also Broderick v. Amber Ct. Assisted Living, 200 AD3d 840 [2d Dept 2021]; Schwartz v. Partridge, 179 AD3d 963 [2d Dept 2020]. Plaintiff’s reference to violation of Section 5001(c) of the Deficit Reduction Act of 2005, 120 Stat. 4, 30, entitled “Quality Adjustment in DRG Payments for Certain Hospital Acquired Infections” only applies to Medicare payments made to hospitals; Rego Park is a nursing home, thus Section 5001(c) is inapplicable. Plaintiff’s allegation that Rego Park failed to make required reports of Decedent’s pressure ulcers to state and federal regulators is not supported by the evidence in the record: the Court has no evidence before it of reports that Rego Park did or did not make to regulators. Furthermore, Plaintiff’s expert does not opine on how these alleged failures are a proximate cause of Decedent’s injuries and death. Russell v. Riv. Manor Corp., 216 AD3d 827 [2d Dept 2023]; Schwartz v. Partridge, 179 AD3d 963 [2d Dept 2020]; Novick v. S. Nassau Communities Hosp., 136 AD3d 999 [2d Dept 2016]; Gold v. Park Ave. Extended Care Ctr. Corp., 90 AD3d 833 [2d Dept 2011]. Therefore, Plaintiff’s claims regarding Rego Park’s alleged noncompliance with statutes and regulations is speculatory and conclusory, thus failing to raise an issue of fact to withstand Rego Park’s prima facie entitlement to summary judgment. Therefore, the Court grants Rego Park summary judgment dismissing all claims in the complaint with prejudice in its entirety and the Clerk of the Court is directed to enter judgment in their favor. This constitutes the decision1 and order of the Court.
