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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU
-----------·------·------··-----X CHERYL GURALNICK, individually and as Administratrix, of the ESTATE OF ANNE PERLSON, INDEX NO.: 609071/2017
Plaintiff, EXPERT AFFIRMATION
FULTON COMMONS CARE CENTER,INC, AND METROPOLITAN JEWISH HEALTH SYSTEM, INC.
Defendants -...,---..-------·-··-----------------X
MARK FIALK, M.D., F.A.C.P., a physician licensed in the State of New York hereby
affirms the following to be true, under the penalties of perjury, pursuant to CPLR §2106:
1. I am a physician duly licensed to practice in the State of New York. I obtained my
M.D. degree from Tufts University School of Medicine and performed an Internship at The New
York Hospital-Cornell Medice! Center in the Department of Medicine. J completed a residency in
Internal Medicine at The New York Hospital-Cornell Medical Center. I was a Senior Assistant
Resident at Memorial Sloan-Kettering Cancer Center, I performed a Fellowship in Hematology-
Oncology at the New York Hospital-Comell Medical Center.
2. I am Board Certified in Internal Medicine, Medical Oncology, Hematology, and
Hospice and Palliative Medicine, I am affiliated with Westchester Medical Center and am a
Clinical Assistant Professor of Medicine at New York Medical College. I am also the Medical
Director of Hospice and Palliative Care of Westchester. My knõw|edge of the standard of care
with respect to the medical treatment of the decedent's conditions is based upon my extensive
educaticnal and clinical experience.
3. I have reviewed plaintiff's allegations, the relevant medical records, including
FULTON COMMONS CARE CENTER ("FULTON COMMONS") and MJHS HOSPICE AND
PALLIATIVE CARE ("MJHS HOSPICE") records, deposition testimony, and Plaintiff's Expert
Witness Response. All of the opinions expressed herein are stated to within a reasonable
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degree of medical certainty and are based on my review of these materials as well as my
training, education, clinical practice, and experience treating hospice patients such as Ms.
Perlson. I submit this Affirmation in support of the Motion for Summary Judgment by defendant,
MJHS HOSPICE.
4. This case involves the June 8, 2015 to July 20, 2015 residency of the then 86
year-old decedent to defendant FULTON COMMONS, and the hospice services rendered to the
decedent at FULTON COMMONS by MJHS HOSPICE between July 13, 2015 and July 20,
2015 (Exhibits B, G and H). In total, Ms. Perlson received hospice care services from MJHS
HOSPICE for seven days prior to her death. During this period, MJHS HOSPICE made
sppropriate recommendations to manage, to the extent safe and possible, the decedent's pain.
It is my opinion, within a reasonable degree of medical certainty, that there were no departures
in the care and treatment rendered by MJHS HOSPICE in connection with its treatment of Anne
Pertson that proximately caused and/or contributed to her alleged injuries cr death.
Plaintiff's Allegations
5. In sum and substance, the Bili of Particulars and Amended Bill of Particulars as
to MJHS HOSPICE allege deviations from the applicable standard of care and negligence in
MJHS HOSPICE's rendering of hospice services to the decedent. Plaintiff asserts that MJHS
HOSPICE failed to render comfort care in a timely manner, including administering pain
medication as requested despite obvious discomfort; that the decedent's pain medication was
not administered in sufficient dosage and intervals as medically required to provide the
decedent with comfort care; that MJHS HOSPICE failed to administer physical tests necessary
to determine pain levels and treatment necessary for a patient with broken hip and dementia;
failed to place the decedent on hospice care as ordered by her physician due to administrative
shortcomings; failed to monitor, supervise and manage the decedent's comfort care and pain;
failed to maintain adequate documentation; failed to adequately communicate and coordinate
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the decedent's care'; and failed to perform thorough and necessary pain monitoring. It is further
alleged that MJHS HOSPICE failed to provide the decedent with necessary nutrition and
hydratics required for proper rehabilitation (Exhibit F).
6. Plaintiff claims that as a result of MJHS HOSPICE's alleged deviations from the
standard of care and its negligent actions and omissions in rendering hospice services, the
decedent sustained a right hip fracture, depression, pain and suffering, malnutrition, and
dehydration.
7. Should this Court consider plaintiff's Second Amended Bills of Particulars, it is
further alleged, in sum and substance, that MJHS HOSPlCE violated the New York Public
Health Law 2801¬d for depriving the decedent of timely hospice services due to administrative
short comings, and for depriving the decedent of adequate pain medication on a scheduled
basis so as to manage her pain and maintain her comfort (Exhibit F).2 As a result of MJHS
HOSPICE's alleged deviations from the standard of care, violations of the Public Health Law,
and its negligent actions and omissions in rendering hospice services, it is further claimed that
the decedent sustained a urinary tract infection as well as an untimely and premature death.
8. It is my opinion within a reasonable degree of medical certainty that the
allegations of negligence, medical malpractice, and violations of the Public Health Law are
without merit and should be dismissed. The records reveal that MJHS HOSPICE conformed to
accepted standards of hospice care and medical care in connection with the care and treatment
provided to the decedent; and that the decedent did not sustain any injuries or death
proximately caused by MJHS HOSPICE's acts or omissions.
¹ If the Court considers the Second Amended BIII of Particulars. ²
MJHS HOSPICE's alleged violations of the New York Public Health Law were neither a cause of action in the Complaint nor alleged in the Bill of Particulars and Amended Bill of Particulars.
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Events Prlor to the Decedent's Admission to MJHS Hospice and Pâ||iative Care
9. Ms. Perlson was admitted to FULTON COMMONS, from Broad Lawn Manor
Nursing Home, on June 8, 2015 for long term care. Her admitting diagnoses included dementia,
depression, hypertension, and chronic obstructive pulmonary clinnana At FULTON COMMONS
the decedent was followed by attending physicians Dr. Rohatgi and Dr. Curran.
10, On July 9, 2015, the decedent fell from her bed. She was transferred to Nassau
County Medical Center where she was diagnosed with a hip fracture (Exhibit H, pp., 2, 11, 22,
68, 128, 379, 389). The family elected against a hip pinning procedure. even though they were
informed that the purpose of the procedure would be to keep the decedent comfortable
(Exhibit K). The decedent returned to FULTON COMMONS with an unrepaired hip fracture on
July 11, 2015 (Exhibit H, pp. 379-380).
11. The Nassau University Medical Center's discharge plan instructs that the
decedent be given .Tylenol .(.325. mg) every six hours., as needed, and lbuprofen (400 mg) three
tirnes a day, as needed, for pain management (Exhibit H, pp. 381, 388). According to Nassau
University Medical Center, the decedent's treatment plan was to work with hospice and nursing
care to achieve adequate comfort measures. However, at the time of the decedent's discharge
from Nassau University Medice! Center, she was not a patient of defendant MJHS HOSPICE.
Plaintiff testified that it was her understanding that hospice services were going to be
implemented after the decedent's return to FULTON COMMONS. (Exhibit K, pp. 143-146).
12. Upon readmission to FULTON COMMONS, Dr. Curran, ordered 325 mg of
Acetaminophen every six hours, as needed, and 5 mg of Oxycodone every six hours as needed
for pain.3 These medications were administered as ordered by FULTON COMMONS nursing
staff on July 110 and
12th (Exhibit I, pp. 47:2, 47:12-18; Exhibit H, pp. 219-220).
3 All orders for pain medication between July 11, 2015 and July 20, 2015 were made by the decedent's attending physician, Dr. Curran.
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13. On July 13, 2015, at 6:00 a.m., the decedent was seen by a FULTON
COMMONS nurse who noted that the decedent was asleep in bed and without complaints of
pain or discomfort (Exhibit H, p. 69). Dr. Curran ordered a one-time 5 mg dose of Oxycodone to
be administered at 9:30 a.m. (Exhibit 1, p. 47:1).
14. On July 13, 2015, at approximately 10:12 a.m., MJHS HOSPICE received a fax
from FULTON COMMONS that included Dr. Curran's order for a hospice evaluation (Exhibit J;
Exhibit G, p. 38). As explained by FULTON COMMONS DON Kitty Stheele, a physician must
order a hospice evaluation before MJHS HOSPICE staff can assess and determine whether a
FULTON COMMONS resident qualifies for hospice services (Exhibit L).
he Decedent's Admission to MJHS Hospice and Palliative Care
15. MJHS HOSPICE admission nurse Tawana Massac met with the decedent's
family on July 13, 2015, at FULTON COMMONS. Following admission nurse Tawana Massac's
intaker-Dr-Lugassy's--determination--of-eligibi!ity, as-weE! as-the-family's-consent to -MJ-IdS- -- - ---
HOSPICE providing hospice services to the decedent, the decedent was enrolled as a member
of MJHS HOSPICE (EXHlBIT M, p. 5; EXHIBIT G, pp. 32, 35-36).
16, THE MJHS HOSPICE Election of Benefits and Informed Consent, signed by the
decedent's next of kin, Barbara Perlson on July 13, 2015, set forth the Initial Admission Hospice
Plan of Care which outlined the scope and frequency that the decedent would receive services
from MJHS HOSPlCE (Exhibit M, p. 4; Exhibit G, p. 14). The Informed Consent also set forth
that:
1. Visits by members of the hospice team: physician, registered nurse, social worker, pastoral care coordinator, creative arts therapist, home health
aide, bereavement coordinator, and volunteer. The hospice team will determine the frequency of home visits and services based on the hospice plan of care in collaboration with you and your caregiver(s) and family.
7. I have been informed that hospice services do not take the place of the care provided by my family members, friends, significant other, or nursing home staff (if a nursing home is my place of residence) (Exhibit M, p. 1-2).
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17. The FULTON COMMONS chart and MJHS HOSPICE records both contain care
plans for hospice, created July 13, 2015 (Exhibit H, p. 162; Exhibit G, pp. 28-31). MJHS
HOSPICE's care plans including care plans for pain, spiritual distress, altered breathing
patterns, coordination of care in skilled nursing facility, altered urinary function, and alteration in
nutrition and hydration. It is my opinion that the care plans were timely created and appropriate.
18. During MJHS HOSPICE Admission Nurse Massac's assessment and intake, the
decedent's family relayed their feeling that the decedent's pain was not relieved with
Oxycodone. Nurse Massac communicated this information to MJHS HOSPICE physician Dr.
Lugassy whom suggested Roxanol (Morphine Sulfate) (Exhibit G, p. 37). Dr. Lugassy's
recommendation was appropriate given the level of pain medication the decedent was receiving
at that time.
19. The deposition testimony by MJHS HOSPICE and FULTON COMMONS
. witnesses sets forth that MJHS HOSPICE provides pa!|iative care services, including
recommendations for pain management, at FULTON COMMONS, but does not order
medication or administer treatment to the FULTON COMMONS residents on hospice. The
medical records support this testirnony, as they demonstrate that MJHS HOSPICE physicians
made recommendations, which were communicated to FULTON COMMONS; and that all
orders for pain mediation were made by the decedent's attending physician Dr. Curran, All pain
medications were administered by FULTON COMMONS staff. This coordination of care, in
rendering hospice services to an individual residing in a long term care facility is common and
accepted in the field of hospice care.
20. At approxirnately 2:36 p.m., on July 13, 2015, the decedent's attending physician,
Dr. Curran, ordered 5 mg of Morphine Sulfate (concentrate) every two hours as needed in
accordance with MJHS HOSPICE's recommendation ( Fxhibit I, p, 47:1). As above rnentioned,
all orders for pain medication following the decedent's return to FULTON COMMONS were
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made by her attending physician Dr. Curran. it is my opinion, that this order was appropriate in
order to manage pain caused by an unrepaired hip fracture, to the extent safe and possible.
21. At approximately 8:28 p.m., MJHS HOSPICE's Call Center received a phone call
from plaintiff who reported that the decedent was admitted to hospice, that Roxanol (Morphine
Sulfate) was ordered, but not received. In response to this infermation, MJHS HOSPICE staff
spoke with FULTON COMMONS Nurse Atwell who reported that the medication was ordered
and scheduled to be delivered at approximately 9:00 p.m. Additionally, Nurse Atwell reported
that she had just come from the decedent's room, and the decedent reported that she was not
in any pain, but nonetheless the Roxanol would be administered as soon as it arrives on the
unit. The Call Center MJHS HOSPICE Nurse updated plaintiff regarding her discussion with
FULTON COMMONS Nurse Atwell (Exhibit G, p. 39). The Fulton Medication Adrninistration
Record supports that Morphine Sulfate was administered to the decedent on July 13, 2015
(Exhibit H).
22. On July 14, 2015, at approxirnately 11:59 a.m., Dr. Curran changed the order of
5 mg of Morphine Sulfate (concentrate) every two hours to 5 mg of Morphine Sulfate
(concentrate) every hour as needed for breakthrough pain. This order appears to have been
made independent of MJHS HOSPICE. It is my opinion, however, that this order was
appropriate to manage the decedent's pain, to the extent safe and possible,
23. On July 14, 2015, at 2:34 p.m., MJHS HOSPICE Nurse Whyte-Benjamin
received a phone call from the decedent's daughter, Barbara Perison, who advised that the
decedent was crying out in pain. Nurse Whyte-Benjamin confirmed this Information with
FULTON COMMONS nurse Elfa and then spoke with MJHS HOSPICE physician, Dr. Eng. An
increase of Roxanol (Morphine) was recommended (Exhibit G, p. 41). This recommendation
was appropriate in order to safely manage the decedent's pain, to the extent possible, given the
information communicated to MJHS HOSPICE and the level of pain medication the decedent
was receiving at that time.
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24. At approximately 3:31 p.m., on July 14, 2015, the decedent's attending physician
Dr. Curran increased the dosage of Morphine Sulfate (concentrate) from 5 mg to 10 mg every
two hours as needed for breakthrough pain (Exhibit 1, p. 47-1). This demonstrates that MJHS
staff was communicating the family's observations and concerns regarding the decedent to
FULTON COMMONS staff, and that prompt action was taken to address the issue. Again. this
order was appropriate in order to manage pain, to the extent safe and possible.
25. MJHS HOSPICE Nurse Whyte-Benjamin also followed with FULTON
COMMONS who confirmed that the 10 mg dose of Morphine would be administered.
Additionally, MJHS HOSPICE Nurse Whyte-Benjamin discussed the family's request for a
potential transfer to an inpatient hospice unit (IPU) for aggressive pain management. Action was
taken regarding the request to transfer, including contacting Meadowbrook IPU; however the
family was informed that the transfer would cause pain. Ultimately, the family advised that if the
increased dose of Roxanol was effective overnight the decedent would most likely remain at
FULTON COMMONS on hospice.4 The family requested a visit by MJHS HOSPICE to assess
the effectiveness of the increased dose of Roxanol (Exhibit G, p. 41).
26. MJHS HOSPICE Nurse Cupidore met with the plaintiff and her sister at FULTON
COMMONS in response to the request for an on-call visit. During the visit, Nurse Cupidore
discussed expectations with the family, including advising that the decedent may not be pain
free due to her hip fracture, however MJHS HOSPICE and FULTON COMMONS were working
to minimize pain. The decedent's pain medication and bathroom schedules were also discussed
(Exhibit G, p. 40). Nurse Cupidore's explanation that the decedent may not be entirely free
from pain due to her hip fracture was appropriate and accurate. The goal of pain management is
to effectively control pain; however this must be done safely and not at the risk of ending life,
4 In addition, the family requested to discontinue all medications except pain medication and respiratory treatment, This would of course include any treatenent for the alleged urinary tract infection.
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even for those on hospice care. As such, while the ultimate goal of hospice care is to make an
individual comfortable, it is not a guarantee that he or she will be free from pain at all times.
27. On July 15, 2015, MJHS HOSPICE received a call from the decedent's family
alleging that the decedent was experiéñcing pain. The family relayed that the decedent was
holding onto the side rails and claimed that FULTON COMMONS nurses were not administering
Morphine. MJHS HOSPICE Nurse Cupidore was advised of the family's call, and made a visit to
FULTON COMMONS where she spoke with a FULTON COMMONS nurse supervisor. Nurse
Cupidore then spoke with MJHS HOSPICE on-call physician, Dr. Tsai, who recomrñeñded that
the 10 mg of Morphine every two hours ("short acting") be changed to 15 mg of MS Contin
every twelve hours ("long acting") (Exhibit G, pp. 42, 44). This recommendation was
appropriate in order to safely manage the decedent's pain, to the extent possible, given the
information gathered and communicated to MJHS HOSPICE and the level of pain medication
the decedent was receiving at that time.
28. Dr. Tsai's recommendation was communicated to Dr. Curran, and at
approximately 5:54 a.m., on July 15th, Dr. Curran ordered 15 mg of MS Contin Oral Tablet
Extended Release every twelve hours (Exhibit I, pp. 47:17). The order of 10 mg of Morphine
Sulfate (concentrate) every two hours remained in place. MJHS HOSPICE Nurse Cupidore
updated the plaintiff and also explained the meaning of "as needed"
("PRN") medication.
(Exhibit G, p. 42). A family meeting was requested at that time (Exhibit G, pp. 42, 45).
29. Before the family meeting was held, the decedent was seen by attending
physician Dr. Curran, who added a 25 MCG/HR Fentanyl transdermal patch to the decedent's
medication regime (Exhibit G, p. 45). Dr. Curran documented his plan for the decedent. His
note reads:
family now requesting hospice + comfort care only + to de [discontinue] all other meds +
no labs; dw [discussed with] family (three daughters) today + wish comfort care only; now MS Contin [illegible] + Roxanof 10 q 2 prn; currently awake -> appears comfortable but at times still in distress; dw family -> will add Fentyni Patch -> they understand
possibly respir, suppressive + agree, will continue to aggressively treat pain. Progress
grave; imminent demise (Exhibit H, p. 29).
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30. Dr. Curran crdered the 25 MCG/HR Fentanyl transdermal patch be applied to the
decedent's skin, starting at 9:00 a.m., on July 15, 2015. The Fentanyl patch was to be replaced
every 72 hours (Exhibit I, p. 47-16; Exhibit H, pp. 199-201). The decedent continued to
receive 10 mg of Morphine Sulfate (concentrate) every two hours for breakthrough pain (Exhibit
I, p. 47-1, 47-16, 47-24; Exhibit H, p. 205, 211).5 It is my opinion that this was appropriate to
manage pain to the extent safe and possible.
31. The family meeting was held with MJHS HOSPICE social worker Karen Telman,
MJHS HOSPICE nurses Dawn Whyte-Benjamin and Wanda Youdelman, MJHS HOSPICE
Rabbi Charles Rudansky, and the decedent's daughters Barbara and Laura (Exhibit G, p. 45).
The family was told that Dr. Curran added a Fentanyl patch to the medication regimen.
Additi0rially, the decedent was offered a private room on another unit at FULTON COMMONS.
The family advised that they would keep the decedent at FULTON COMMONS rather than
transfer her to an IPU (in-patient hospice unit) (Exhibit G, p. 45),
32. On July 16, 2015, MJHS HOSPICE Nurse Desormeau made an on call visit to
respond to the family's concern regarding alleged failure to properly medicate the decedent.
Nurse Desormeau assessed the decedent and noted that she appeared comfortable with mild
dyspnea and on oxygen. Nurse Desormeau collaborated with FULTON COMMONS staff who
reported that the decedent was receiving Morphine every two hours for pain, in addition to the
Fentanyl patch. This is supported by the FULTON COMMONS medication administration record
and physicians' orders. (Exhibit G, pp. 48, 51; Exhibit H, pp. 199, 201, 205; Exhibit I, p. 47-
1). Based upon Nurse Desormeau's assessment, the FULTON COMMONS nursing notes and
my review of the medication ordered and administered, the pain medication regimen at this time
was appropriate and complied with the standard of care in order to control the decedent's pain
to the extent safe and possible.
This medication order remained in place until the decedent's death on July 20, 2015. 10
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33, There is no document in the medical records that evidences that the decedent
experienced chronic or breakthrough pain after July 16, 2015, Significantly, as of July 16, 2015,
the decedent had been enrolled as a member of MJHS HOSPICE and receiving comfort care
for only three days. Further, Plaintiff testified that, in her opinion, as of July 18, 2015, the
decedent was free from pain. (Exhibit K, pp. 242-243, 249), Between July 17, 2015 and July
19, 2015, MJHS HOSPICE nurses continued to visit the decedent at FULTON COMMONS and
noted she was either resting comfortably or asleep. (Exhibit G, pp. 52, 54, 56). The decedent
continued to receive Morphine every two hours and the Fentanyl patch. (Exhibit G, p. 52;
Exhibit H, pp. 199, 201, 205, 215, 217, 220-221). The decedent expired on July 20, 2015
(Exhibit G, p. 57).
OPINJONS:
MJHS HOSPICE Conformed at All Times to Accented Standards of Care and Did Not Cause or Contribute to any Alleged Injury.
34. It is my opinion within a reasonable degree of medical certainty that Plaintiff's
claims that MJHS HOSPICE committed medical malpractice, negligence, and violations of the
Public Health Law", and caused/contributed to the decedent's pain and suffering, depression,
mainutrition, dehydration, urinary tract infection7, and death" are without merit. MJHS HOSPICE
met the standard of care in its treatment of the decedent, there is no evidence of any act or
omission that was negligent, and nothing MJHS did or failed to do during the seven day period
that it rendered hospice care to the decederit caused or contributed to the alleged injuries.
35. As noted, the decedent was enrolled as a member of MJHS HOSPICE on July
13, 2019, after she sustained a hip fracture which was unrepaired, The decedent was timely and
properly evaluated by MJHS HOSPICE once it received an order from the decedent's attending
6 If the Court conslders the Second Amended Bill of Particulars. If the Court considers the Second Amended Bill of Particulars. If the Court considers the Second Amended Bill of Particulars
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physician, Dr. Curran requesting a hospice evaluation. The deterinimatiõn that the decedent
qualified for hospice care was accurate and timely.
36, The decedent was followed by MJHS HOSPICE employees who timely and
properly assessed the decedent as well as timely and properly communicated with FULTON
COMMONS staff regarding their communications with the decedent's family, assessments of
the decedent, and recommendations by MJHS HOSPICE physicians concerning pain
medication. There is no evidence of any "administrative shsitcomings"
on the part of MJHS
HOSPICE.
37. The type, dose, and frequency of pain medication recommended by MJHS
HOSPICE physicians, and ordered by the decedent's attending physician, Dr. Curran, were
appropriate and in compliance with the standards of care for pain managernent and hospice
care. Although the decedent had episodes of breakthrough pain b6tw66n July 13, 2015 and July
16, 2015, this does not evidence a deviation of the standard of care or negligence, especially
here where the decedent sustained a hip fracture on July 9, 2015, which was not surgically
repaired, and commenced hospice care on July 13, 2015. While the goal of hospice care is to
make individuals comfortabió, there is no guarantee that a loved one receiving hospice care will
be pain free. Pain management requires balancing the goal of pain relief with patient safety. A
patient should not be medicated to the point that he or she is confused, unconscious, or in
respiratory distress. Moreover, physicians cannot ordered or recommend a level of pain
medication, even for those on hospice care, that will put the patient at risk for premature death.
Therefore, while pain management is the ultimate goal, the complete freedom of pain is not
always possible, especially for someone who is newly admitted to hospice. The fact that Ms.
Perlson had episodes of breakthrough pain for the first three to five days that she was a
member of MJHS HOSPICE does not evince negligence or a deviation frorn the standard of
care.
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38. In calculating an appropriate dose of pain medication for a patient, the type of
pain (chronic verses breakthrough pain) must be cons|dered, as well as factors including a
patients medication history, weight, and co-morbidities. Frequent reevaluation is necessary,
which was done here, and if a patient continues to experience break though or chronic pain the
dosage is tapered upward overtime, While the dosage is increased, the patient's vitals and
cognitive status must be monitored for signs of overdose. Here, the initial dose of narcotic pain
medication as well as the rate and amount the decedent's narcotics were increased were
appropriate and complied with the standards of care.
39. In this case, the recommendations of MJHS HOSPlCE regarding the decedent's
pain medication regimen were appropriate and complied with the standard of care. The
decedent's pain medication was steadily and safely increased following her return to FULTON
COMMONS and her enrollment with MJHS HOSPICE, Based upon rny review of the services
MJHS HOSPICE represented that it would provide, as set forth in Its informed consent, the
medical records, deposition testimony, and my experience and work in the hospice field, MJHS
HOSPICE provided appropriate care between July 13, 2015 and July 20, 2015.
40. MJHS HOSPICE acknowledged the observations, concems and complaints
voiced by the decedent's family and communicated with FULTON COMMONS to address the
family's concems, assessed the decedent and made appropriate recommendations for pain
management and comfort care.
41. It is my opinion, to a reasonable degree of medical certainty that MJHS
HOSPICE complied with the standard of care in providing palliative care to the decedent and
that no act or omission by MJHS HOSPICE caused or continued to the decedent's pain and
suffering. It is also my opinion that there were no departures by MJHS HOSPICE that caused or
contributed to the development of dehydration, malnutrition, depression, a urinary tract infection
or premature death.
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..
42. The decedent was followed by a dietician and speech and language pathologist
at FULTON COMMONS. FULTON COMMONS had care plans in place for nutritional status,
dehydration/fluid maintenance, which notes that as of July 13, 2015, the decedent was on
hospice care. The decedent's intake was very poor, and further decline was unavoidable. Tube
feedings as well as IV fluids were not a treatm6rit option. While MJHS HOSPICE staff
cornmunicated with the family and FULTON staff regarding the decedent's intake, the focus of
MJHS HOSPICE with respect to nutrition and hydration was to promote comfort care. It was not
the resporisibility of MJHS HOSPICE to perform nutrition/dehydration risk assessments, record
intake and output, or determine the appropriate diet. FULTON COMMONS appropriately
continued to oversee this area of the decedent's care. (Exhibit H, pp. 129-132, 311-312, 326-
327, 334). Additionally, I find no support in the record for the allegation that MJHS HOSPlCE
was understaffed or failed to keep adequate medical records.
43. Based on the foregoing, it is likewise my opinion within a reasonable degree of
medical certainty that plaintiff's Public Health Law 2801-d claim, predicated upon violations of a
multitude of Federal regulations,9 should be dismissed in its entirety, as the Record is devoid of
any evidence that the decedent sustained any injuries or death that were proximately caused by
any purported regulatory violation. It is e"eged by plaintiff in the Second Amended Verified Bill
of Particulars that MJHS HOSPICE violated 42 CFR 483.13 (b), 42 CFR 483.15 (b), 42 CFR
483.20(d)(k), 42 CFR 483.40, and 42 CFR 483.40 (a). I note that these sections, and PHL
2801-d pertain to requirements for Long Term Care Facilities, not a Hospice Program that
provides services to patients in unrelated Long Term Care Facilities. Nonetheless, should the
Court consider these regulations to be applicable to MJHS HOSPICE, I will address them.
44. 42 CFR 483.13 (b) states that a resident has the right to be free from all types of
abuse, punishment and seclusion. Based on my review of the medical records and testimony
as discussed herein, it is my opinion that MJHS HOSPICE did not violate this right. Additionally,
° If the Coud considers such claims as to MJHS HOSPICE.
14 5503691
FILED: NASSAU COUNTY CLERK 04/23/2019 11:02 AM INDEX NO. 609071/2017
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/23/2019
42 CFR 483.15 (b) states that residents must have equal access to quality care. It is my
opinion, based upon the foregoing opinicit stated herein, that MJHS HOSPICE did not violate
this regulation. Next, 42 CFR 483.20(d) and (k) state that facilities must maintain resident
assessments and use them to develop and modify care plans. As noted herein, it is my opinion
that MJHS HOSPICE appropriately assessed the decedent, maintained the assessments, and
communicated the ussessments to FULTON COMMONS, to be implemented in their plan of
care. Plaintiff next asserts that MJHS HOSPICE viciated 42 CFR 483.40, and subsection (a) of
this regulation. This regulation addresses behavioral health services, and states that residents
must receive behavioral healthcare and services to attain and maintain the highest practicable
physical, mental, and psychosocial well-being, in accordance with comprehensive assessment
and plan of care. Subsection (a) of this regulation deals with sufficiency of staffing. Based on
the foregoing recitation of facts from the records and testimony, and the opinions rendered
herein, it Is further my opinion that MJHS HOSPICE did not violate this regulation.
45. Based on these opinions, it is my opinion within a reasonable degree of medical
certainty that MJHS HOSPICE acted within the standard of care in its rendering hospice
services to the decedent; that the claims of negligence are without merit, that MJHS HOSPICE
did not violate any applicable statutes or regulations; and that no act, omission, or statutory
violation caused or contributed to the decedent's injuries or death.
Dated: April 17, 2019
FILED: NASSAU COUNTY CLERK 04/23/2019 11:02 AM INDEX NO. 609071/2017
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 04/23/2019