The following e-filed documents listed on NYSCEF (Motion #003) numbered 109-115, 120-123, 126-129 were read on this motion. The Court further read Defendant's Exhibit F and Defendant's Exhibit G, provided to the Court and Plaintiff via thumb drive due to the voluminous size of the exhibit.

Upon the foregoing documents, and after oral argument completed on February 13, 2025, it is hereby,

ORDERED, that Defendants SIUH/Northwell's Motion Sequence No. 003 request pursuant to CPLR § 3212 for summary judgment and dismissal of Plaintiff's complaint on the grounds that the claims made against said Defendants SIUH/Northwell lack merit and there are no triable issues of fact for a jury to resolve is DENIED with prejudice; and it is further,

ORDERED, that Defendants SIUH/Northwell's Motion Sequence No. 003 request for dismissal of Plaintiff's complaint pursuant to upon the ground that Defendants SIUH/Northwell is immune from liability under New York's Emergency or Disaster Treatment Protection Act, NY Pub. Health Law §§ 3080-82 is DENIED with prejudice, and it is further;

ORDERED, that Defendants SIUH/Northwell's Motion Sequence No. 003 request for the dismissal of the complaint on the ground that Defendants SIUH/Northwell is immune from suit and liability under the federal Public Readiness and Emergency Preparedness Act, 42 USC § 247d-6d, et seq, is DENIED with prejudice, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

On or about February 2, 2022, Plaintiff, as Administrator of the Estate of the Decedent, Rose Cianflone, commenced this action to recover for claims of negligence and gross negligence, arising from allegations of failures in patient care that resulted in the death of Rose Cianflone [hereinafter "Decedent"].

Defendant Staten Island University Hospital and Northwell Health, hereinafter referred to as SIUH/Northwell filed Motion Sequence No. 003 on December 23, 2024, seeking (a) pursuant to CPLR § 3212 summary judgment and dismissal of Plaintiff's complaint on the grounds that the claims made against said defendants lack merit and there are no triable issues of fact for a jury to resolve; (b) to sever the action against Defendants SIUH/Northwell; (c) amend the caption to reflect said judgment; and (d) permit judgment to be entered on behalf of SIUH/Northwell.

Defendants SIUH/Northwell further seek (e) dismissal of the Complaint and this action with prejudice on the ground that Defendants SIUH/Northwell are immune from liability under [*2]New York's Emergency or Disaster Treatment Protection Act (hereinafter referred to as "EDTPA") NY Pub. Health Law §§ 3080-82, and Federal Public Readiness and Emergency Preparedness Act (hereinafter referred to as "PREP Act") 42 USC § 247d-6d, et seq; and (b) for such other and further relief as this the Court deems just and proper.

On January 1, 2025, Plaintiff filed opposition to Motion Sequence No. 003. Defendant filed reply on January 21, 2025. Oral argument was heard in person, at the courthouse on February 13, 2025.

Plaintiff alleges that malpractice occurred during two distinct admissions of the Decedent to Defendant SIUH/Northwell's facility during which Decedent was under the exclusive care, custody, control, and management of SIUH/Northwell. (NY St Cts Filing [NYSCEF] Doc No. 1 at page 22). The first admission was from on or about January 20, 2020, through on or about February 24, 2020, and the second admission from on or about June 3, 2020, through on or about June 13, 2020. (see id). Plaintiff contends that during these admissions, Decedent sustained and/or exacerbated multiple decubitus ulcers, including a Stage IV sacral ulcer and unstageable ulcer on her foot, infections, malnutrition, dehydration, and other injuries caused by the negligence of SIUH/Northwell, as well as violations of applicable statutes, rules, and regulations. (see id at pages 22-23).

On January 20, 2020, Decedent was brought to SIUH/Northwell's hospital complaining of left upper and lower extremity swelling, with erythema noted to left lower extremity. (Defendant's exhibit F at page 1377). Decedent was on Macrobid prescribed by an outside provider since Saturday (01/18/2020). (see id). Decedent was also reported to have decreased urinary output and generalized weakness (see id at page 1385; 1394). Decedent was originally admitted to SIUH/Northwell's hospital on January 20, 2020, for a skin infection with bacteria in her blood and was later found to have a retroperitoneal abscess. (see id at page 13).

On admission, the nursing skin assessment documented a Stage 2 sacral ulcer measuring 1 cm in length by 0.5 cm in width. (see id at page 298). Decedent was rated with a Barden scale score of 16, if 18 or less active skin injury risk is increased. (see id at pages 291-292). Specific treatment included cleansing with soap and water, applying barrier cream, and an Allevyn dressing. (see id at page 298). SIUH/Northwell implemented various interventions, including a pressure reduction mattress, heel off-loading devices, turning and repositioning, positioning off wounds, and skin protection with moisture barrier and incontinence pads. (see id at page 1477).

On January 21, 2020, Decedent was seen by Dr. Mobarakai, an infectious disease physician. (see id at pages 1435-1436). The impression was sepsis secondary to GBS secondary to left lower extremity cellulitis with no evidence of endocarditis and clinically no pyelonephritis. (see id). Recophin was given and a repeat blood culture was ordered. (see id). Decedents records further note on that date that decedent reported her right heel was hurting her. (see id at page 1439). A physical exam of Decedent found on her lower left extremity redness of the skin "ttp at heel, warm to touch[.]" (see id at pages 1439-1440).

A Physical Therapy Initial Evaluation was conducted on Decedent on January 22, 2020, found:

On January 23, 2020, a physical exam of Decedent found on her lower left extremity with noted redness of the skin and swelling that did not leave an indentation when squeezed. (see id at page 1497). No swelling was found on right lower extremity. (see id). Decedent's Braden Assessment score was rated at 17. (see id at page 334).

On January 24, 2020, a Barden assessment of Decedent resulted in a Barden scale score of 14, down three points from just the day prior and increasing Decedent's risk of skin injury. (see id at page 345). SIUH/Northwell implemented additional skin interventions including a pressure-redistributing mattress, skin sealant/moisture barrier, and administered cream and ointment. (see id at page 347).

On January 27, 2020, a Barden assessment of Decedent resulted in a Barden scale score of 15. (see id at page 399). Decedent continued to have the stage 2 sacral ulcer previously documented with unchanged measurements. However, an ankle ulcer (right malleolus) was documented for the first time and the Decedent was also noted to have blanchable redness of the bilateral heels. (see id pages 400-402).

On January 29, 2020, the nursing assessment by Gabrielle Casale, RN, documented a Barden scale score of 15 and a new right heel Stage II ulcer. (see id 426-429). Interventions included a sacral silicone foam dressing, and/or Allevyn (see id at pages 429-430). On February 3, 2020, interventions were updated to reflect that skin-to-device areas were padded. (see id at page 515).

On February 6, 2020, wound care interventions remained the same, except that "adhesive use" was to be limited. (see id at page 575). Decedent complained of pain, 8/10, in her bilateral legs. (see id at page 576). Decedent was also documented to have a right heel, stage 2, ulcer. (see id at page 562). The next day nursing documented that the Decedent continued to refuse repositioning (see id at page 220), and the progress summary documented the "[f]amily removing pillow from the [Decedent] after turn and position. Family educated on importance of pillow placement." (see id at page 226).

On February 12, 2020, Decedent was found to have a sacral spine, very lower back, Stage II ulcer that measured 1 cm x 1 cm in addition to a Stage III sacral spine ulcer that measured 3.5 cm x 1 cm. (see id at page 649). Decedent was treated by NP Delphia Hator (advanced practice nurse consult) for wound evaluation. (see id at page 1855). Hator's assessment found that neither wound appeared infected and recommended wound cleanser and Allevyn foam dressing both ulcers. (see id). The next day Decedent's progress note provides that Decedent "continues to refuse T&P [turn and position]. Encouraged to shift weight to stay off wounds and keep heels elevated. [Decedent] continues to refuse more than one pillow to elevate heels." (see id at page 239). Decedent continued to refuse to turn and position through February 16, 2020. (see id at page 243; 252; 256).

On February 20, 2020, the physical therapist explained the benefits of movement with the Decedent and family and range of motion exercises were discussed with the nurse that reported Decedent and her family often refused out of bed activities. (see id at page 266). New, bilateral heel ulcers were also detected. (see id at page 775). The next day Decedent's Braden score was 16 (see id at page 789) and her sacrum and heel ulcers were treated with Allevyn through her discharge on February 24, 2020. (see id at 268; 271; 277; 289).

Decedent returned to SIUH/Northwell from June 3, 2020, through June 13, 2020. On June 4, 2020, an assessment of the Decedent found the following:

1. An unstageable pressure injury on Decedent's left heel measuring 5 cm x 5 cm with intact black necrotic tissue. The wound edges were attached and irregular with the skin around the wound intact. (see id at 2817).

2. An unstageable pressure injury on Decedent's sacrococcygeal measuring 9 cm x 4 cm x 1 cm. The wound bed was stringy, loosely adherent yellow-tan devitalized tissue with open wound edges. The skin around the wound was blanchable erythema, healed light pink epithelial tissue to left ischium. The wound exudate was described as a moderate amount of serous drainage present on removed dressing. Wound odor was present upon dressing removal. (see id at 2817-2818).

The care plan for the sacrococcygeal ulcer called for Cavilon with a no sting barrier film to the wound edges and periwound to prevent maceration. (see id at page 2818). Collagenase Santyl, nickel-thick, to Saline moistened gauze was to be lightly packed on the wound bed to enzymatically debride devitalized tissue and fill in the wound depth and all undermining areas. (see id). The wound was then to be covered with foam Allevyn dressing. The dressing was to be changed daily and as necessary and a surgical consult was recommended. (see id). Turning and positioning was to be continued, using pillows, repositioning, and offloading heels and a Coloplast Baza Protect moisture barrier cream was ordered for the Decedent's buttock and perineal area daily for incontinent episodes. (see id).

On June 6, 2020, Dr. Parekh evaluated Decedent's left heel and recommended wound [*4]care with Santyl, wet gauze with ¼ Dakin's solution, and Keflex three times daily; off-loading and position changes, and surgical debridement. (see id at page 2897). Decedent's Braden score was 12 on this date. (see id at 2385).

On June 9, 2020, the unstageable left heel ulcer measured 6 x 6 cm, the stage IV sacral/spine ulcer measured 8 x 8 x 2 cm, and a new, stage 2, left buttock ulcer measured 3 x 2 cm. (NY St Cts Filing [NYSCEF] Doc No. 113 at page 12). Defendant maintains the heel ulcer was stable, and no surgical intervention was recommended. (see id at page 13).

Defendant SIUH/Northwell contends,

On June 11, 2020, Dr. Kimlyn Long performed a bedside excisional debridement of the sacral wound. Prior to debridement the ulcer measured 7 x 6 cm with necrotic tissue in all layers overlying the sacrum. There was exposed palpable bone, and some areas of pink chronic granulation in the most caudad aspect of the wound. The drainage was noted to be green, suggestive of Pseudomonas. After the debridement, the wound was covered with Santyl, Hydrogel, packed with Dakin's moistened Kerlix gauze, and covered with an abd pad. Additionally, on June 11, 2020, Monica Cabrera, RN documented an unstageable left heel ulcer, measuring 5 x 5 x 0 cm. She further documented that the burn team managed the unstageable sacral ulcer. (see id at page 13).

On June 18, 2020, at the initial assessment, Athena Home documented two ulcers. A posterior lumbar area coccyx, sacrum ulcer, stage IV, measuring 8.5 x 6 x 1.5 cm; and a posterior left heel ulcer, unstageable, measuring 5 cm x 6 cm. (Defendant's exhibit G at page 16).

In support of SIUH/Northwell's motion, SIUH/Northwell submitted the unsigned but certified deposition of Valerie Digenova, a registered nurse employed by SIUH/Northwell testified as follows:

Q [D]o you remember a patient at the hospital named Rose Cianflone?

A No, I didn't recall that name. (NY St Cts Filing [NYSCEF] Doc No. 112 at page 13, lines 18-20).

Q Are there certain notes in the chart that you made, that you reviewed?

A [N]otes from January of 2020, yes.

Q And can you find the first indication or note that you made in the record?

A Well, I did the adult assessment and intervention. There is different sections. There's pain, safety, skin, nutrition. (see id at page 24).

Q And what date is that?

A It says January 21st, 2020, at 10:57. (see id at page 25).

Q [T]here is a section for skin assessment scale?

A Yes.

Q And there's subcategories with a Braden assessment, and did you perform that assessment on this day?

A Yes.

Q And you scored Ms. Cianflone with a 16 in terms of the Braden scale?

A That's what I see in the chart, yes.

Q And then it says if the score is 18 or less, activate skin injury risk, increased CPG. (see id at page 26). Do you see that?

A Yes.

Q What is CPG?

A That's — it's a guideline that they use.

Q And is that a written or printed guideline?

A It's probably printed in the policies, yes.

Q Do you know what that stands for, CPG?

A Not offhand at the moment, no.

Q Are you familiar with a document known as a pressure injury toolkit?

A No, I don't recall what a toolkit is.

Q Do you recall ever looking at the skin injury risk, increased CPG?

A With this patient, I don't recall. (see id at page 27).

Q I see you noted there was an existing pressure ulcer on the sacrum?

A Yes.

Q And it was a Stage 2?

A Yes.

Q And did you determine that it was a Stage 2, or where did you get that information from?

A I probably determined that it was a Stage 2. If I note that there is partial skin breakdown, it's a Stage 2. (see id at page 29).

Q Have you ever seen that before, someone writing on the picture?

A No, I haven't.

Q And this - - underneath the photographs, its says sacrum, top, Stage 2, 3.5 by 1, and then bottom, Stage 2, 1 by 1. Do you see that?

A I do.

Q Does that indicate, at least at the time this picture was taken, there were two wounds in the sacral area?

A I am not sure. I guess that's what they are trying to say.

Q Are you able to tell whether the wound that you assessed on January 22nd, that you took a picture of, is that the bottom wound or the top wound?

A It's hard to tell from the pictures. (see id at page 33, lines 2-18).

Digenova was questioned regarding the positioning of the Decedent in bed so as to relieve pressure from Decedent's wounds.

Q And when it says positioned off wounds, would that here indicate meaning don't position her on her back?

A Yes, that would mean to position her off her sacrum.

Q And so would that mean she should be turned to one side and then turned to the other side, or what do you mean?

A Generally behind each bed, on the wall, there is a turn and position clock, and it states, let's say, 10 to 12 left side, 12 to 2 right side. It gives you parameters.

Q And is that clock, is that individualized for each patient, or is that a general, you know, form?

A It's general. It's just a general guideline. (see id at page 37, lines 9-25).

Q But is there any indication on that clock if a patient like Ms. Cianflone needs to be positioned not on her back, is that indicated on the clock?

A No. The clock is just generalized, left, right, back, left, right, back.

Q Now, there's no mention as to how often to turn and position her on this assessment other than frequent; is that right?

A That's what the chart says, yes.

Q Are there times when it's indicated in the nursing assessment how often, specifically the number, every hour, every two hours?

A It's not indicated. The clock just goes by every two hours. I mean, there's exceptions. If it's mealtime, you need to be on your back and upright to eat. So, I mean, again, it's depending. (see id at page 38, lines 2-18).

Q [I]t says positioning, body position HOB. Is that head of bed?

A Head of bed elevated 30 to 45 degrees.

Q And is that for pressure relief purposes?

A For this patient I am not sure. It could be that or head of the bed up. If the patient has dysphasia, if there are aspiration precautions, they generally want the head of the bed up. (see id at page 39, lines 16-25).

Q In the shift-by-shift assessment, in what section would it be indicated if there was any heel protection or lower extremity pressure relief measures being implemented.

A I believe it's under skin, pressure reduction techniques, pressure reduction devices.

Q And would it usually be specifically indicated what devices were being used, such as heel booties or pillows for the legs or anything?

A I don't see it on here. It can be individualized with pillows, yes, or heel booties. (see id at page 44 line 24 to page 45 line 11).

Q Under pressure reduction devices, you note the pressure redistributing mattress, and then you — it's noted heel offloading device utilized. You see that?

A Yes.

Q Do you know what that indicates, the heel offloading device utilized?

A I don't recall at that time, no. (see id at page 46, lines 10-17).

Digenova was questioned regarding Decedent's medical status.

Q Under radiology and additional tests, it says nondisplaced chronic insufficiency fracture of the right superior acetabulum and area of bone marrow signal abnormality in the right proximal femur. Do you see that?

A Yes.

Q Do you have any knowledge as to whether this fracture occurred at the hospital or someplace else?

A I have no knowledge. I don't know.

Q Did you see any notes or documentation that you wrote regarding this possible fracture?

A No, I don't know. I didn't see any. (see id at page 57, line 18 to page 58, line 6).

Q If a resident is found with a new pressure ulcer or a pressure ulcer that was existing but deteriorated, is there any sort of report, incident report or any type of report documentation that is supposed to be generated by the nursing staff?

A No, none that I am aware of. (see id at page 60, line 23 to page 61, line 5).

In further support of Defendants SIUH/Northwell's motion, SIUH/Northwell submitted the affirmation of Joy Alvarez, RN, BSN, MA. Alvarez provided in her affirmation,

It is my opinion within a reasonable degree of nursing certainty that the care and treatment provided by the nurses affiliated with SIUH met the accepted standards of [*5]nursing practice. It is further my opinion that there was no omission or commission by any SIUH nurse that was the proximate cause or substantial contributing factor with respect to the damages, including death, claimed on behalf of [Decedent]. (NY St Cts Filing [NYSCEF] Doc No. 115 at page 13, lines 18-20).

On admission, January 20, 2020, the nursing skin assessment of the Decedent documented a Stage 2 sacral ulcer measuring 1 x 0.5 cm. (see id at ¶5). On January 27, 2020, the stage 2 sacral ulcer was documented to measure 0.5 x 0.5 cm, however, a Stage 2 right malleolar ulcer was documented for the first time. (see id at ¶17). On January 29, 2020, the nursing assessment documented a new right heel Stage II ulcer, and bilateral heel blanchable redness. (see id at ¶22). On February 4, 2020, the sacral fissure was noted. (see id at ¶29). On February 6, 2020, a right heel, stage 2 ulcer was documented. (see id at ¶31).

Alvarez contends that on "February 7, 2020, nursing documented that the patient continued to refuse repositioning, and the family was removing pillows from the patient after repositioning. The nurse educated the family on the importance of pillow placement." (see id at ¶32). Alvarez further contends that on February 11, 2020, the

family complained that the patient was out of bed and requested that she be returned to bed within 10 minutes of being moved. The importance of movement was reviewed by the nursing staff, but the patient continued to refuse repositioning or follow instructions to elevate her heels. The patient further refused PrimaFit for urinary incontinence, and the family continued to refuse transfers out of bed. (see id at ¶36).

On February 12, 2020, the sacral stage 2 ulcer measured 1 x 1 cm. A sacral spine ulcer, measuring 3.5 x 1 cm, was noted as Stage III. (see id at ¶37). Alvarez maintains that "It is my opinion within a reasonable degree of nursing certainty that the development of the new Stage III ulcer was unavoidable due to the patient's co-morbidities and refusal to be mobilized, turned and repositioned." (see id). Alvarez further maintains that there was a lack of cooperation by the Decedent and the Decedent's family to cooperate with efforts to relieve pressure on the Decedent's wounds. (see id at ¶40; ¶41; ¶43; ¶46; ¶47; ¶80; ¶81).

Decedent was discharged to Carmel Rehabilitation Center on February 24, 2020. (see id at ¶52). On the first wound assessment, the Decedent had

one unstageable sacral ulcer measuring, 3 x 1.5 x 0 cm. The bilateral heels were intact with dry scaly skin. On the last weekly wound rounds conducted at Carmel on May 29, 2020, the patient had a Stage IV sacral ulcer, 10.0 x 3.0 x 2.0 which was noted to be increased in size, and an unstageable left heel ulcer 6.0 x 7.5 x undetermined." (see id).

Decedent returned to SIUH from June 3, 2020, through June 13, 2020. (see id at ¶53). On June 4, 2020, the bedside nurse noted that the patient's Braden score was 11. She documented an unstageable left heel ulcer, Stage IV/unstageable ulcer on the medial sacral spine 6 x 3 cm, a Stage II ulcer on the buttocks, 3 x 3cm. (see id at ¶55). The advanced practice wound care nurse further documented an unstageable left ankle ulcer measuring 5 x 5 x 0 cm with black necrotic tissue, irregular attached wound edges, no odor, and no signs of pain. (see id at ¶56). The unstageable sacrococcygeal ulcer measured 9 x 4 x 1 cm and had 1 cm. (see id).

On June 9, 2020, the unstageable left heel ulcer measured 6 x 6 cm, the stage IV sacral/spine ulcer measured 8 x 8 x 2 cm, and the stage 2, left buttock ulcer measured 3 x 2 cm. (see id at ¶63). On June 11, 2020, an unstageable left heel ulcer, measuring 5 x 5 x 0 cm was documented. (see id at ¶67).

Decedent was discharged to family members on June 13, 2020, and died at home on July [*6]20, 2020. (see id at ¶67).

The Plaintiff's complaint contends that malpractice occurred during two distinct admissions by the Decedent to SIUH/Northwell, from on or about January 20, 2020, through on or about February 24, 2020, and again from on or about June 3, 2020, through on or about June 13, 2020. Plaintiff further contends that during these admissions, Decedent sustained and/or exacerbated multiple decubitus ulcers, including a Stage IV sacral ulcer and unstageable ulcer on her foot, infections, malnutrition, dehydration, and other injuries caused by the negligence of SIUH/Northwell, as well as violations of applicable statutes, rules, and regulations.

SIUH/Northwell maintains that Plaintiff's complaint should be dismissed pursuant to CPLR §3212 on the grounds that the claims made against said defendants lack merit and there are no triable issues of fact for a jury to resolve. SIUH/Northwell further contends that Plaintiff's complaint should be dismissed on the ground that Defendants SIUH/Northwell are immune from liability under New York's Emergency or Disaster Treatment Protection Act (hereinafter referred to as "EDTPA") NY Pub. Health Law §§ 3080-82, and Federal Public Readiness and Emergency Preparedness Act (hereinafter referred to as "PREP Act") 42 USC § 247d-6d, et seq.

Plaintiff contends that the affirmation of RN Joy Alvarez is defective and insufficient as it is not notarized. CPLR § 2106 provides:

The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this ________ day of ______, ________, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)

RN Joy Alvarez's affirmation provides that she "being duly sworn, deposes and says under the penalties of perjury". (NY St Cts Filing [NYSCEF] Doc No. 115). RN Joy Alvarez's signature and the date, December 23, 2024, appear at the end of her affirmation. (see id). The Court finds the affirmation of RN Joy Alvarez's to be in substantially in the form required by CPLR § 2106 and admissible.

"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (see Andre v Pomeroy, 35 NY2d 361 [1974] citing Millerton Agway Cooperative, Inc. v Briarcliff Farms, Inc., 17 NY2d 57 [1966]).

"In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party" (see Stukas v Streiter, 83 AD3d 18 [2d Dept 2011] citing Pearson v Dix McBride, 63 AD3d 895 [2d Dept 2009]). "The function of the court on a [*7]motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (see id quoting Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]).

"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (see Delia v Wieder, 2025 NYAppDiv LEXIS 1631 [2d Dept 2025] quoting Sunshine v Berger, 214 AD3d 1020 [2d Dept 2023]).

"On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant . . . has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (see Weber v Sharma, 232 AD3d 930 [2d Dept 2024] quoting Sunshine v Berger, 214 AD3d 1020 [2d Dept 2023] quoting Dye v Okon, 203 AD3d 702 [2d Dept 2022]; citing Clarke v New York City Health & Hosps., 210 AD3d 631 [2d Dept 2022]).

The testimony of RN DiGenova raised concerns whether there was a departure from good or accepted medical practice, which may have resulted in the Decedent sustaining and/or exacerbating multiple decubitus ulcers, including a Stage IV sacral ulcer and unstageable ulcer on her foot, and other injuries.

When questioned regarding the Decedent's skin assessment on January 21, 2020, in which the Decedent was rated a 16 on the Barden scale, and it was noted that if a score is 18 or less, active skin injury risk, increased CPG. DiGenova was unsure of what it stood for and could only assume it was "probably printed in the [SIUH/Northwell's] polices". (NY St Cts Filing [NYSCEF] Doc No. 112 at page 27). DiGenova further testified that she did not recall what the pressure injury toolkit was, and she did not recall looking at the skin risk, increased CPG for the decedent. (see id).

DiGenova testified regarding the positioning of the Decedent in bed to relieve pressure from Decedent's wounds. "Generally behind each bed, on the wall, there is a turn and position clock, and it states, let's say, 10 to 12 left side, 12 to 2 right side. It gives you parameters." (see id at page 37, lines 17-20). This "clock" was not individualized to the Decedent, but rather just a general guideline. (see id at lines 21-25).

When DiGenova was questioned as to specifically what pressure reduction techniques were being used, she was unable to locate the specifics in the records available to her, but indicated the techniques were individualized. (see id at page 45, lines 7-11). DiGenova was further unable to indicate the heel offloading devices that were utilized for Decedent. (see id at page 46, lined 15-17).

DiGenova further testified:

Q Under radiology and additional tests, it says nondisplaced chronic insufficiency fracture of the right superior acetabulum and area of bone marrow signal abnormality in the right proximal femur. Do you see that?

A Yes.

Q Do you have any knowledge as to whether this fracture occurred at the hospital or someplace else?

A I have no knowledge. I don't know.

Q Did you see any notes or documentation that you wrote regarding this possible fracture?

A No, I don't know. I didn't see any. (see id at page 57, line 18 to page 58, line 6).

Q If a resident is found with a new pressure ulcer or a pressure ulcer that was existing but deteriorated, is there any sort of report, incident report or any type of report documentation that is supposed to be generated by the nursing staff?

A No, none that I am aware of. (see id at page 60, line 23 to page 61, line 5).

The affirmation of Joy Alvarez, RN, BSN, MA provides:

It is my opinion within a reasonable degree of nursing certainty that the care and treatment provided by the nurses affiliated with SIUH met the accepted standards of nursing practice. It is further my opinion that there was no omission or commission by any SIUH nurse that was the proximate cause or substantial contributing factor with respect to the damages, including death, claimed on behalf of [Decedent]. (NY St Cts Filing [NYSCEF] Doc No. 115 at page 13, lines 18-20).

"An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable" (see Leavy v Merriam, 133 AD3d 636 [2d Dept 2015] citing Tsimbler v Fell, 123 AD3d 1009 [2d Dept 2014]; Behar v Coren, 21 AD3d 1045 [2d Dept 2005]; Postlethwaite v United Health Servs. Hosps., Inc., 5 AD3d 892 [3d Dept 2004]; LaMarque v. North Shore Univ. Hosp., 227 AD2d 594 [2d Dept 1996]).

"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" (see M.C. v Huntington Hosp., 175 AD3d 578 [2d Dept 2019] quoting Behar v Coren, 21 AD3d 1045 [2d Dept 2005] quoting Postlethwaite v United Health Servs. Hosps., Inc., 5 AD3d 892 [3d Dept 2004]).

In Boltyansky v New York Community Hosp., 175 AD3d 1478 [2d Dept 2019], the Court held that

a registered nurse, licensed family nurse practitioner, and legal nurse consultant with a Ph.D.—was insufficient to raise a triable issue of fact. The nurse was not a medical doctor and lacked the qualifications to render a medical opinion as to the relevant standard of care, and whether the defendant deviated from such standard (see Novick v South Nassau Communities Hosp., 136 AD3d 999 [2d Dept 2016]; Collymore v Montefiore Med. Ctr., 39 AD3d 237 [1st Dept 2007]; Glasgow v Chou, 33 AD3d 959 [2d Dept 2006]; Elliot v Long Island Home, Ltd., 12 AD3d 481 [2d Dept 2004]; Mills v Moriarty, 302 AD2d 436 [2d Dept 2003]), as well as to whether any deviation was a proximate cause of the injuries (cf. Simpson v Edghill, 169 AD3d 737 [2d Dept 2019]; Martinez v Quintana, 138 AD3d 791 [2d Dept 2016]).

Plaintiff contends that RN Alvarez is not certified in wound care and lacks the necessary qualifications to render an expert opinion on the issues central to this case. Plaintiff further contends RN Alvarez's opinion is insufficient to support the dismissal of claims involving the progression and treatment of pressure ulcers, which require specialized medical knowledge and training. (see Leavy v Merriam, 133 AD3d 636 [2d Dept 2015]; M.C. v Huntington Hosp., 175 AD3d 578 [2d Dept 2019]).

RN Alvarez's affirmation, while very persuasive is insufficient in and of itself to absolve the questions raised by the testimony of RN DiGenova. SIUH/Northwell raises the issue of the family's alleged lack of cooperation and alleged proactive interference with off-loading devices and the turning and repositioning of the Decedent. These issues of fact remain unresolved and do not lend support the drastic remedy of summary judgment in this matter.

Accordingly, Defendants SIUH/Northwell request pursuant to CPLR § 3212 summary judgment and dismissal of Plaintiff's complaint on the grounds that the claims made against SIUH/Northwell lack merit and there are no triable issues of fact for a jury to resolve is DENIED with prejudice.

CPLR § 3211 [a] [7] provides that a "party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action[.]" "In considering a motion pursuant to CPLR 3211 [a] [7] to dismiss a complaint for failure to state a cause of action, the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (see Green 333 Corp. v RNL Life Science, Inc., 186 AD3d 1334 [2d Dept 2020] citing Cortlandt St. Recovery Corp. v Bonderman, 31 NY3d 30 [2018]; Korsinsky v Rose, 120 AD3d 1307 [2d Dept 2014]).

Where "evidentiary material is submitted and considered on a motion pursuant to CPLR § 3211 [a] [7], and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (see Graphic Arts Mut. Ins. Co. v Pine Bush Cent. Sch. Dist., 159 AD3d 769 [2d Dept 2018] citing Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]; Sposato v Paboojian, 110 AD3d 979 [2d Dept 2013]; Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d 574 [2d Dept 2013]).

"A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR § 3211 [a] [7]" (see Mera v. New York City Health & Hosps. Corp., 2023 NY App Div LEXIS 4951 [2d Dept 2023] quoting Cordell Marble Falls, LLC v Kelly, 191 AD3d 760 [2d Dept 2021] quoting Sokol v Leader, 74 AD3d 1180 [2d Dept 2010] citing CPLR § 3211 [c]).

"If the court considers evidentiary material, the criterion then becomes 'whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one'" (see id quoting Sokol v Leader, 74 AD3d 1180 [2d Dept 2010] quoting Guggenheimer v. Ginzburg, 43 NY2d 268 [1977] citing Cordell Marble Falls, LLC v Kelly, 191 AD3d 760 [2d Dept 2021]).

At the outset of the COVID-19 pandemic the New York State Legislature enacted the Emergency or Disaster Treatment Protection Act (Public Health Law former art 30-D, §§ 3080-3082 [repealed by L 2021, ch 96, § 1]; hereinafter the EDTPA) with the stated purpose of "promot[ing] the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency" (see id quoting Public Health Law former § 3080).

[T]he EDTPA initially provided, with certain exceptions, that a health care facility "shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services" as long as three conditions were met: [1] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in [*8]accordance with applicable law; [2] the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State's directives; and [3] the services were arranged or provided in good faith (see id quoting former PHL § 3082 [1]).

The health care services covered by the immunity provision included those related to the diagnosis, prevention, or treatment of COVID-19; the assessment or care of an individual with a confirmed or suspected case of COVID-19; and the care of any other individual who presented at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration (see id former PHL § 3081 [5]).

The only exception under the statute is for injuries caused by "willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm" (see former PHL § 3082 [2]).

The "Court of Appeals has held that the failure to exercise even 'slight care' or 'slight diligence' constitutes gross negligence (see Gentile v. Garden City Alarm Co., 147 AD2d 124 [2d Dept 1989] citing Food Pageant, Inc. v. Consolidated Edison Co., 54 NY2d 167 [1981]; Dalton v. Hamilton Hotel Operating Co., 242 NY. 481 [1926]; Weld v. Postal Tel. Cable Co., 210 NY 59 [1913]). "To constitute gross negligence, a party's conduct must 'smack[ ] of intentional wrongdoing' or 'evince[ ] a reckless indifference to the rights of others'" (see Bennett v State Farm Fire & Cas. Co., 161 AD3d 926 [2d Dept] quoting Ryan v IM Kapco, Inc., 88 AD3d 682 [2d Dept 2011] quoting Sommer v. Federal Signal Corp., 79 NY2d 540 [1992]; citing Skywest, Inc. v Ground Handling, Inc., 150 AD3d 922 [2d Dept 2017]; J. Petrocelli Contr., Inc. v Morganti Group, Inc., 137 AD3d 1082 [2d Dept 2016]).

"Generally, the question of gross negligence is a matter to be determined by the trier of fact" (see id citing Food Pageant, Inc. v. Consolidated Edison Co., 54 NY2d 167 [1981]; Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d 901 [2d Dept 2014]). Decedent was admitted to Defendant SIUH/Northwell's facility from on or about January 20, 2020, through on or about February 24, 2020, and from on or about June 3, 2020, through on or about June 13, 2020. (NY St Cts Filing [NYSCEF] Doc No. 1 at page 22). Plaintiff contends that during these admissions, and Decedent sustained and/or exacerbated multiple decubitus ulcers, including a Stage IV sacral ulcer and unstageable ulcer on her foot, infections, malnutrition, dehydration, and other injuries caused by the negligence of SIUH/Northwell, as well as violations of applicable statutes, rules, and regulations. (see id at pages 22-23).

Plaintiff makes no allegations pertaining to Defendant SIUH/Northwell's implementation or execution of COVID-19 protocols. SIUH/Northwell provides neither testimony nor evidence that demonstrates even in the most tangential way how the COVID-19 pandemic prevented or impaired the SIUH/Northwell from providing Decedent with treatment for her ulcers and open wounds. Defendants rely solely on the argument that the EDTPA was valid at the time of the occurrence and provide no correlation between the treatment of Decedent's ulcers and open wounds and how [1] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; [2] the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State's directives; and [3] the services were arranged or provided in good faith. (see PHL former § 3082 [1]).

"While the EDTPA 'immunized healthcare facilities from civil liability for certain acts or omissions in the treatment of patients for COVID-19 during the period of the COVID-19 [*9]emergency declaration' (see Martinez v NYC Health & Hosps. Corp., 223 AD3d 731 [2d Dept 2024), the defendant's submissions did not establish that the three requirements for immunity were satisfied (see Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d 618 [2d Dept 2024]; citing PHL former § 3082 [1]; Mera v New York City Health & Hosps. Corp., 220 AD3d 668 [2d Dept 2023]). Defendants here have equally failed to establish the three requirements for immunity.

Accordingly, SIUH/Northwell's request for dismissal of the Plaintiff's complaint upon the ground that SIUH/Northwell is immune from liability under New York's Emergency or Disaster Treatment Protection Act, NY Pub. Health Law §§ 3080-82 is DENIED with prejudice.

The PREP Act was enacted in 2005 and is invoked when the Secretary of Health and Human Services determines that a disease or health condition exists that constitutes a public health emergency (42 USC § 247d-6d[b]). Thereafter, the Secretary "may make a Declaration through publication in the Federal Register, recommending ... the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures." This was done to address the COVID-19 pandemic (Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, (85 Fed Reg 15 198 [March 10, 2020]).

When enacting the PREP Act, which can cut off an injured individual's ability to seek recourse through the courts, Congress recognized the need to include an alternative form of relief for individuals injured by covered countermeasures. Under the PREP Act, a "covered countermeasure" is a drug, biological product, or device that is a "qualified pandemic or epidemic product" or a "security countermeasure" or is "authorized for emergency use by the Federal Food, Drug, and Cosmetic Act. The PREP Act does not define "administration" and "use," but the Secretary's Declaration states that "administration" of covered countermeasures "means physical provision of countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution and dispensing of countermeasures to recipients, management and operation of countermeasure programs, or management and operation of locations for purpose of distributing and dispensing countermeasures." The PREP Act provides that "[s]ubject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure." (see 42 USC § 247d-6d [a] [1]).

The immunity provided under the PREP Act "applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure." (see 42 USC § 247d-6d [a] [2] [B]). Immunity under the PREP Act applies to any loss or claim that has a causal relationship to the administration to or use by a "covered person" arising out of or relating to the administration of a covered countermeasure (42 USC § 247d-6d(a)(1), with the exception to immunity being "death or serious physical injury [*10]proximately caused by willful misconduct." A claim falling under the PREP Act must be filed in federal court, and the Act creates a fund known as the Covered Countermeasure Process Fund ("CCPF") for "purposes of providing timely, uniform, and adequate compensation to eligible individuals for covered injuries" (42 USC § 247d-6e[a]) (See Whitehead v Pinehead Operating, LLC, 75 Misc 3d 985 [Sup Ct Columbia County 2022]).

The only exception to the PREP Act's grant of immunity is "for death or serious physical injury proximately caused by willful misconduct" (see 42 USC § 247d-6d [d] [1]), defined as an act or omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit (see 42 USC § 247d-6d [c] [1] [A]). Under 42 USC § 247d-6d(d)(1), immunity is not available when willful misconduct is the proximate cause of death or serious physical injury. Any such case must be brought in the District Court for the District of Columbia, no matter where the harm occurred. The burden of proving proximate cause is on the plaintiff. The standard is clear and convincing evidence. The advisory opinion notes that the PREP Act does not confer immunity against federal enforcement actions, whether civil, criminal, or administrative. For activities undertaken under a federal contract, the period of immunity lasts until October 1, 2024. Once the declaration expires, covered entities have 12 months of liability protection to dispose of Covered Countermeasures.

Plaintiff's claims are not encompassed by the PREP Act. Here, the Plaintiff's claims do not allege loss "caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure." (see 42 USC § 247d-6d(a)(1)). Plaintiff contends that during the two admissions of Decedent to SIUH/Northwell's facility, Decedent sustained and/or exacerbated multiple decubitus ulcers, including a Stage IV sacral ulcer and unstageable ulcer on her foot, infections, malnutrition, dehydration, and other injuries caused by the alleged negligence of SIUH/Northwell, as well as violations of applicable statutes, rules, and regulations. (NY St Cts Filing [NYSCEF] Doc No. 1).

The acts and omissions listed in the complaint are unrelated to the administration, prioritizing, or purposeful allocation of a drug, biological product, or device to an individual within the meaning of the PREP Act. There are no allegations in the Complaint that allege causal connection between the Resident's injuries and the administration of a covered countermeasure. Further, Defendants do not allege any facts, nor were they able to articulate any argument as to whether there were staffing issues resulting from the COVID-19 pandemic that resulted in a lower standard of care for their patients.

SIUH/Northwell contends that it is immune from liability under the EDTPA and PREP Act but fails to provide any specifics, and merely reiterates that during the period of the Decedent's admissions both the EDTPA and PREP Act immunities were in effect. SIUH/Northwell provides no rational basis for the relief they seek.

Accordingly, the SIUH/Northwell's request for the dismissal of the Plaintiff's complaint on the ground that SIUH/Northwell is immune from suit and liability under the federal Public Readiness and Emergency Preparedness Act, 42 USC § 247d-6d, et seq, is DENIED with prejudice.

ORDERED, that Defendants SIUH/Northwell's Motion Sequence No. 003 request [*11]pursuant to CPLR § 3212 for summary judgment and dismissal of Plaintiff's complaint on the grounds that the claims made against Defendants SIUH/Northwell lack merit and there are no triable issues of fact for a jury to resolve is DENIED with prejudice; and it is further,

ORDERED, that Defendants SIUH/Northwell's Motion Sequence No. 003 request for dismissal of Plaintiff's complaint pursuant to upon the ground that Defendants SIUH/Northwell is immune from liability under New York's Emergency or Disaster Treatment Protection Act, NY Pub. Health Law §§ 3080-82 is DENIED with prejudice, and it is further;

ORDERED, that Defendants SIUH/Northwell's Motion Sequence No. 003 request for the dismissal of the complaint on the ground that Defendants SIUH/Northwell is immune from suit and liability under the federal Public Readiness and Emergency Preparedness Act, 42 USC § 247d-6d, et seq, is DENIED with prejudice, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.