Nov 8th, 2021


FKB’s Jennie M. Lundman successfully dismissed all claims against FKB’s client, a New York based nursing home, by way of a summary judgment motion. Plaintiff, a 57 year old female claimed that she developed a Stage IV sacral pressure ulcer secondary to the negligent care and treatment she received by the nursing home’s staff during her 17 day short term rehabilitation stay.

Prior to plaintiff’s stay at the nursing home, she had been admitted to a NYC based hospital secondary to septic shock, hypoxia and need for ECMO treatment. During this hospitalization, she developed a Stage IV sacral pressure ulcer.

FKB argued on summary judgment that contrary to plaintiff’s claims, she was properly assessed as being at risk for skin breakdowns, i.e. pressure ulcers and that the appropriate skin prevention protocols were implemented and properly carried out by the nursing home staff. FKB also retained a geriatric expert to support its motion. The expert was able to support FKB’s argument that the plaintiff had a pre-existing sacral ulcer upon presentation to the nursing home, that the standard of care was met via providing pressure relieving devices, nutritional supplements, timely turning and position and providing timely and appropriate wound care. The expert further supported FKB’s argument that the treatment plaintiff received by the nursing home was excellent as the sacral wound actually improved during the plaintiff’s brief stay at the facility and ultimately healed a few weeks following discharge. FKB argued that as the nursing home did not cause the plaintiff’s injuries and did not deviate from the standard of care in its care and treatment of the plaintiff as evidenced by the plaintiff’s wound’s improvement, the plaintiff’s case as against the nursing home must be dismissed as a matter of law.

By a Decision and Order dated October 28, 2021, Justice Bernard Graham granted FKB’s motion dismissing the plaintiff’s claim. Judge Graham agreed with FKB’s arguments and held that “[FKB’s client] met [its] burden for establishing a prima facie case for summary judgment, and the plaintiff, in opposition, has failed to meet her burden to offer admissible evidence raising a question of fact as to whether…[FKB’s client] departed from good and accepted medical practice in the treatment of plaintiff. Accordingly, Judge Graham granted FKB’s motion for summary judgment and ordered a dismissal of plaintiff’s complaint.

Judge Graham agreed with FKB’s argument that the nursing home did not deviate from the standard of care in its care and treatment of the plaintiff. Judge Graham was further persuaded by FKB’s proximate cause arguments. Judge Graham found that plaintiff failed to raise an issue of triable fact with regard to the care and treatment rendered by the nursing home and as such he properly granted FKB’s motion and summarily dismissed plaintiff’s complaint.

If you have any questions about this decision, or the defense in general, please contact Jennie M. Lundman.