Preview
FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018
NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
VALERIE AUSTIN and AMANDA DILLON,
as co-administrators of the ESTATE OF
LARRY C. AUSTIN, Deceased,
Plaintiffs,
AFFIDAVIT
v. Index No.: 007476/2018
PAWAN K. RAO, MD, BRIAN
CHANGLAI, MD, JEANNE BISHOP, MD
and OVID NEULANDER, MD,
Defendants.
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
, MD, being duly sworn deposes and states as follows:
1. I am a physician licensed to practice medicine in the State of New York and I
am Board Certified in intemal medicine. (A copy of my Curriculum Vitae is attached hereto as
Exhibit "A".)
2. My practice of medicine has included the treatment of patients in care facilities
such as nursing homes, including seniors with nutritional issues, and pressure ulcers. I have
also treated patients with end stage renal disease receiving dialysis care.
3. I was retained by the law firm of Knych & Whritenour, LLC, as a medical
expert concerning the quality of care provided to Larry Austin by Pawan K. Rao, MD, Brian
Changlai, MD and Jeanne Bishop, MD.
4. I have reviewed the following medical records Larry Austin:
a. James Square records for January 1, 2016 to July 27, 2016 attached as
Exhibit "B";
b. St. Joseph's Hospital records for July 27, 2016 to August 2, 2016
- see Exhibit "A"
to Matthew E. Whritenour, Esq.'s Affidavit;
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- see Robert "N2"
c. Dialysis chart Carpenter, Esq. Affidavit, Exhibit "N1",
and "N3", NYSCEF Doc Nos. 84 - 86;
"J"
d. Deposition transcript of Jeanne Bishop, MD - see Exhibit to the
Affidavit of Matthew E. Whritenour, Esq.;
"W"
e. Deposition transcript of Brian Changlai, MD - Exhibit to the
Affidavit of Matthew E. Whritenour, Esq.;
"P"
f. Deposition transcript of Pawan Rao, MD - Exhibit to the Affidavit of
Matthew E. Whritenour, Esq.;
- Exhibit "Q"
g. Deposition transcript of Ovid Neulander to the Affidavit of
Matthew E. Whritenour, Esq.;
h. Affirmation of Steve MD - see NYSCEF
Salzman, Doc. No. 132;
i. Affirmation Philip Ondocin, MD see NYSCEF Doc. No. 114;
j. Affirmation of Edward Hannan, MD see NYSCEF Doc. No. 125;
k. Affirmation Joel Betesh, MD see NYSCEF Doc. No. 69.
I have also reviewed the Affidavit of MD.
5. Larry Austin was admitted to the James Square nursing facility on March 29,
2016, for rehab from a recent hip fracture, with the expectation of receiving physical therapy to
get him walking again and then to return home to his wife and daughter Susan in Liverpool,
New York. Mr. Austin's underlying medical conditions included end-stage renal disease with
dialysis care, diabetes and oropharyngeal dysphagia. Mr. Austin was 61 years of age in 2016,
he was friendly, soft spoken and could feed himself and swallow most foods, despite his
swallowing issue, based upon the depositions of his wife and daughter, Amanda.
6. At the outset, I disagree with the portrayal of Mr. Austin as being seriously ill or
fatally ill at the time of his admission to James Square in March of 2016. The term end stage
renal disease refers to a condition where a person's kidneys cease functioning on a permanent
basis, requiring regular dialysis treatments. Patients can tolerate regular dialysis treatment
indefinitely. Since Mr. Austin was born on August 30, 1954, as of March of 2016, he was only
61 years of age. His diabetes was under control upon his admission and this would not be
expected to change as a resident of the James Square facility. Nursing facilities such as James
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Square are prepared to provide nourishing food for diabetic patients. Any swallowing issues
only effect how the foods are prepared to adjust their consistency, not the choice of foods. As
of his admission to James Square in March of 2016, there was no medical reason for Mr.
Austin not to receive sufficient nourishment to maintain a healthy weight, healthy albumin
levels and to survive indefinitely receiving dialysis care.
7. Mr. Austin was admitted to James Square from St. Joseph's Hospital on March
29, 2016. At that time, his weight was 135 pounds and his albumin level was 3.9. Mr. Austin
was admitted to St. Joseph's Hospital from April 13, 2016 to April 16, 2016 for right sided
weakness in the right arm and right leg and left pleural effusion. While at St. Joseph's
Hospital, a stroke was ruled out and his right sided weakness was diagnosed as a temporary
radial nerve palsy that improved significantly during that admission. Fluid was drained from
his left lung which was cultured and there was no infection. His weight upon admission was
noted in the emergency room to be 132 pounds and on April 18, 2016 his weight was listed as
128.5 pounds.
8. After admission to James Square and while under the care of Jeanne Bishop,
MD, Mr. Austin's dry weight dropped as follows:
2016 - 123.2 pounds
May 13,
- 120.56
June 8, 2016 pounds
June 2016 - 119.26 pounds
27,
June 2016 - 111.1 pounds
20,
Mr. Austin remained under Dr. Bishop's care from March 29, 2016 to June 15,
2016.
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DR. BISHOP: NUTRITION AND WEIGHT LOSS
9. Despite any dietary plans put in place, it was clear by May 13, 2016, with a drop
in weight of 5.5 pounds since April 19, 2016, that the plans were not working. A James Square
nutrition assessment form dated May 30, 2016 lists Mr. Austin's weight as of May 18, 2016 at
126.5 pounds and his albumin level at 2.9.
10. By May 30, 2016, it was clear that urgent and aggressive efforts were necessary
to arrest and reverse this unintended and unexplained continued weight loss. The weight loss
between April 19, 2016 and May 30, 2016 was extremely significant since the patient's weight
was down to 126.5. Given his sedentary condition, it should have been clear to Dr. Bishop that
Mr. Austin was at risk for further weight loss, inability to heal pressure ulcers and continuing to
develop life threatening pressure ulcers. By May 30, 2016, nutritional issues and weight loss
were a mortality issue for Mr. Austin.
11. It is my opinion to a reasonable degree of medical certainty that Dr. Bishop
deviated from accepted standards of care by failing to recognize and properly adjust Mr.
Austin's care in an effort to reverse his nutritional problem and weight loss, including speaking
directly with the members of his care team including the staff at James Square and Dr. Rao; by
failing to take immediate and aggressive measures to increase his nutritional intake; by failing
to bring about more aggressive efforts to offload pressure points and/or order more aggressive
efforts to monitor for and prevent new pressure ulcers as he was at extreme risk given his
nutritionally compromised state and being sedentary; by failing to bring about more accurate
monitoring of Mr. Austin's daily caloric/nutritional intake in order to reverse malnutrition and
increase his albumin levels where the records being kept were in conflict with his continued
weight loss without any medical reason other than the current intake records being inaccurate;
4
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by failing to communicate with Mr. Austin's wife and daughter Amanda in an effort to explain
the life threatening nutritional issue and to request their efforts to work speak with Mr. Austin
about his intake; by failing to treat Mr. Austin's weight loss as of May 30, 2016 as a medical
emergency that threatened his survival.
12. Throughout the period from May 30, 2016 to June 15, 2016, Dr. Bishop
continued to deviate from accepted medical practices concerning each of the issues discussed in
paragraph 11. It is my opinion to a reasonable degree of medical certainty that by June 15,
2016, it should have been apparent to Dr. Bishop that all nutritional efforts up to that point had
failed. By June 15, 2016, his weight was down to 120.5 pounds and his albumin level was 2.9.
13. Dr. Bishop clearly deviated from accepted medical practices and can be
characterized as abandoning Mr. Austin as of June 15, 2016, by virtue of her June 14, 2016
monthly progress note which she knew would be relied upon by the caregivers at James Square
and by his new physician, Dr. Changlai. To a reasonable degree of medical certainty, Dr.
Bishop's June 14, 2016 note is deficient pursuant to the standards of care, as it fails to note
anything concerning the life threatening nutritional issues and weight loss; fails to note and
discuss his dropping albumin levels; and it fails to accurately portray the patients history since
March 30, 2016 for pressure ulcers including absolutely no mention of his current ulcers nor
the extreme risk of further skin breakdown due to this malnutrition and albumin levels.
14. As of March 30, 2016, Mr. Austin was admitted from St Joseph's Hospital with
a left sacral/buttocks pressure ulcer, by Dr. Bishop's own note. As of April 19, 2016, Mr.
Austin was noted as having a left buttocks pressure ulcer measuring 1.5 x 0.5 x 0.1. As
discussed by Dr. Dr. Bishop's May 21, 2016 and June 14, 2016 monthly progress notes
were inaccurate where they stated no pressure ulcers. On June 22, 2016 the chart shows
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pressure ulcers on both heels and on June 27, 2016 nurse Bulone documented two large stage 3
pressure ulcers on his sacrum. Dr. opined that the large stage 3 pressure ulcers noted on
June 27, 2016 were longstanding. Dr. Bishop deviated from accepted medical practices by
failing to examine Mr. Austin for pressure ulcers and failing to note pressure ulcers for this
patient who was known to be at high risk for skin breakdown based upon the factors set forth in
this Affidavit. A medical caregiver and a subsequent treating physician would receive no
information from Dr. Bishop's June 14, 2016 note about the serious and life threatening issues
of malnutrition, dropping albumin levels and further skin breakdown concerning his heels,
buttocks and sacral areas. Pressure ulcers in the sacral and buttocks area are medically
recognized as life threatening conditions, especially in a sedentary individual who is not
receiving proper necessary nutrition.
15. It is my opinion to a reasonable degree of medical certainty that Dr. Bishop's
treatment and charting failures played a role in Mr. Austin's continued malnutrition, his
continued worsening of his pressure ulcers and ultimately his fatal condition upon his
admission to St. Joseph's Hospital on July 27, 2016. Dr. Bishop's failure to reverse Mr.
Austin's malnutrition from March 30, 2016 to June 15, 2016 compromised his ability to thrive,
to prevent further pressure ulcers and to heal the ulcers that he had. Dr. Bishop's failure to
accurately note Mr. Austin's longstanding life threatening condition in her June 14, 2016 note,
including malnutrition and pressure ulcers did not bring about the immediate and aggressive
effort to reverse his malnutrition and give extra close attention to his pressure ulcers which
were both medically necessary and Dr. Bishop's failure effectively delayed if not prevented
James Square from realizing that their nutritional efforts for this patient had failed and he was
continuing to be malnourished. Dr. Bishop's June 14, 2016 monthly note, under impression
6
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fails to note malnutrition, serious risk for further skin breakdown or pressure ulcers. Dr.
"plan"
Bishop's in her June 14, 2016 monthly note fails to set forth the need to undertake
immediate and aggressive efforts to reverse malnutrition and to address his pressure ulcers
which were life threatening due to their location and due to his malnutrition and decreased
albumin level, his body could not heal and it was apparent that the ulcers would continue and
become worse. This is not hindsight. By 2016, it was known and understood in internal
medicine and geriatric care that there is a direct relationship between a body's minimum
nutritional needs and the ability to fend off skin breakdown in the form of pressure ulcers as
well as the body's ability to heal such wounds. This well known medical knowledge enabled
Dr. Bishop to predict a very dire and life threatening course for Mr. Austin unless his
malnutrition could be reversed.
16. It is my opinion to a reasonable degree of medical certainty that Mr. Austin's
malnutrition could have been reversed between March 30, 2016 and June 15, 2016, as well as
after. Mr. Austin's medical records from James Square and from his March and April
admissions to St. Joseph's Hospital do not demonstrate any medical problems with respect to
his body's ability to process the nutrients in his diet. His diabetes and his renal failure did not
prevent his body from processing and absorbing the nutrients in his diet, the same as other
adults with those conditions who do not experience malnutrition. There was no underlying
medical condition which doomed Mr. Austin to a state of malnutrition. His dysphagia did not
cause his malnutrition. The dysphagia created a risk that he might aspirate food into his airway
or lungs and this never occurred.
17. Joel Betesh, MD, in paragraph 24 and 25 of his Affidavit blames Mr. Austin's
kidney failure, dialysis, diabetes and swallowing difficulties for his malnutrition, where he
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seems to suggest that he was just too sick to eat or for his body to process the nutrition in the
food he did consume. Dr. Betesh does not explain how any of these medical conditions
individually or collectively could medically cause malnutrition. He did not explain this
because those medical conditions did not compromise Mr. Austin's ability to process the
nutrients from the foods he consumed. The only explanation for his malnutrition is the
nutritional content of the foods provided and the amount of food consumed. Therefore, from a
medical perspective, to a reasonable degree of medical certainty, Dr. Bishop should have
known and responded to Mr. Austin's nutritional problems as an emergency from April 19,
2016 through June 15, 2016. I disagree with Dr. Betesh that somehow the nutritional work by
the staff at James Square absolved Dr. Bishop of any responsibility for diagnosing and
responding to Mr. Austin's continued weight loss and continued dropping albumin levels. The
standards of care required that an attending intemist/geriatrician monitor and respond to weight
loss and dropping albumin levels as a potentially fatal condition.
DR, BISHOP: PRESSURE ULCERS
18. In paragraph 34 of Dr. Betesh's Affidavit, he inaccurately states that the records
from St. Joseph's Hospital for Mr. Austin's April 13, 2016 to April 19, 2016 admission did not
identify any skin integrity issues. The nursing note flow sheets document that the skin was "not
intact"
on April 18, 2016 at 11:47 a.m. and 3:50 p.m. On April 19, 2016 at 3:20 a.m. and 9:00
Preview
FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA VALERIE AUSTIN and AMANDA DILLON, as co-administrators of the ESTATE OF LARRY C. AUSTIN, Deceased, Plaintiffs, AFFIDAVIT v. Index No.: 007476/2018 PAWAN K. RAO, MD, BRIAN CHANGLAI, MD, JEANNE BISHOP, MD and OVID NEULANDER, MD, Defendants. STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss.: , MD, being duly sworn deposes and states as follows: 1. I am a physician licensed to practice medicine in the State of New York and I am Board Certified in intemal medicine. (A copy of my Curriculum Vitae is attached hereto as Exhibit "A".) 2. My practice of medicine has included the treatment of patients in care facilities such as nursing homes, including seniors with nutritional issues, and pressure ulcers. I have also treated patients with end stage renal disease receiving dialysis care. 3. I was retained by the law firm of Knych & Whritenour, LLC, as a medical expert concerning the quality of care provided to Larry Austin by Pawan K. Rao, MD, Brian Changlai, MD and Jeanne Bishop, MD. 4. I have reviewed the following medical records Larry Austin: a. James Square records for January 1, 2016 to July 27, 2016 attached as Exhibit "B"; b. St. Joseph's Hospital records for July 27, 2016 to August 2, 2016 - see Exhibit "A" to Matthew E. Whritenour, Esq.'s Affidavit; 1 of 22 FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022 - see Robert "N2" c. Dialysis chart Carpenter, Esq. Affidavit, Exhibit "N1", and "N3", NYSCEF Doc Nos. 84 - 86; "J" d. Deposition transcript of Jeanne Bishop, MD - see Exhibit to the Affidavit of Matthew E. Whritenour, Esq.; "W" e. Deposition transcript of Brian Changlai, MD - Exhibit to the Affidavit of Matthew E. Whritenour, Esq.; "P" f. Deposition transcript of Pawan Rao, MD - Exhibit to the Affidavit of Matthew E. Whritenour, Esq.; - Exhibit "Q" g. Deposition transcript of Ovid Neulander to the Affidavit of Matthew E. Whritenour, Esq.; h. Affirmation of Steve MD - see NYSCEF Salzman, Doc. No. 132; i. Affirmation Philip Ondocin, MD see NYSCEF Doc. No. 114; j. Affirmation of Edward Hannan, MD see NYSCEF Doc. No. 125; k. Affirmation Joel Betesh, MD see NYSCEF Doc. No. 69. I have also reviewed the Affidavit of MD. 5. Larry Austin was admitted to the James Square nursing facility on March 29, 2016, for rehab from a recent hip fracture, with the expectation of receiving physical therapy to get him walking again and then to return home to his wife and daughter Susan in Liverpool, New York. Mr. Austin's underlying medical conditions included end-stage renal disease with dialysis care, diabetes and oropharyngeal dysphagia. Mr. Austin was 61 years of age in 2016, he was friendly, soft spoken and could feed himself and swallow most foods, despite his swallowing issue, based upon the depositions of his wife and daughter, Amanda. 6. At the outset, I disagree with the portrayal of Mr. Austin as being seriously ill or fatally ill at the time of his admission to James Square in March of 2016. The term end stage renal disease refers to a condition where a person's kidneys cease functioning on a permanent basis, requiring regular dialysis treatments. Patients can tolerate regular dialysis treatment indefinitely. Since Mr. Austin was born on August 30, 1954, as of March of 2016, he was only 61 years of age. His diabetes was under control upon his admission and this would not be expected to change as a resident of the James Square facility. Nursing facilities such as James 2 2 of 22 FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022 Square are prepared to provide nourishing food for diabetic patients. Any swallowing issues only effect how the foods are prepared to adjust their consistency, not the choice of foods. As of his admission to James Square in March of 2016, there was no medical reason for Mr. Austin not to receive sufficient nourishment to maintain a healthy weight, healthy albumin levels and to survive indefinitely receiving dialysis care. 7. Mr. Austin was admitted to James Square from St. Joseph's Hospital on March 29, 2016. At that time, his weight was 135 pounds and his albumin level was 3.9. Mr. Austin was admitted to St. Joseph's Hospital from April 13, 2016 to April 16, 2016 for right sided weakness in the right arm and right leg and left pleural effusion. While at St. Joseph's Hospital, a stroke was ruled out and his right sided weakness was diagnosed as a temporary radial nerve palsy that improved significantly during that admission. Fluid was drained from his left lung which was cultured and there was no infection. His weight upon admission was noted in the emergency room to be 132 pounds and on April 18, 2016 his weight was listed as 128.5 pounds. 8. After admission to James Square and while under the care of Jeanne Bishop, MD, Mr. Austin's dry weight dropped as follows: 2016 - 123.2 pounds May 13, - 120.56 June 8, 2016 pounds June 2016 - 119.26 pounds 27, June 2016 - 111.1 pounds 20, Mr. Austin remained under Dr. Bishop's care from March 29, 2016 to June 15, 2016. 3 3 of 22 FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022 DR. BISHOP: NUTRITION AND WEIGHT LOSS 9. Despite any dietary plans put in place, it was clear by May 13, 2016, with a drop in weight of 5.5 pounds since April 19, 2016, that the plans were not working. A James Square nutrition assessment form dated May 30, 2016 lists Mr. Austin's weight as of May 18, 2016 at 126.5 pounds and his albumin level at 2.9. 10. By May 30, 2016, it was clear that urgent and aggressive efforts were necessary to arrest and reverse this unintended and unexplained continued weight loss. The weight loss between April 19, 2016 and May 30, 2016 was extremely significant since the patient's weight was down to 126.5. Given his sedentary condition, it should have been clear to Dr. Bishop that Mr. Austin was at risk for further weight loss, inability to heal pressure ulcers and continuing to develop life threatening pressure ulcers. By May 30, 2016, nutritional issues and weight loss were a mortality issue for Mr. Austin. 11. It is my opinion to a reasonable degree of medical certainty that Dr. Bishop deviated from accepted standards of care by failing to recognize and properly adjust Mr. Austin's care in an effort to reverse his nutritional problem and weight loss, including speaking directly with the members of his care team including the staff at James Square and Dr. Rao; by failing to take immediate and aggressive measures to increase his nutritional intake; by failing to bring about more aggressive efforts to offload pressure points and/or order more aggressive efforts to monitor for and prevent new pressure ulcers as he was at extreme risk given his nutritionally compromised state and being sedentary; by failing to bring about more accurate monitoring of Mr. Austin's daily caloric/nutritional intake in order to reverse malnutrition and increase his albumin levels where the records being kept were in conflict with his continued weight loss without any medical reason other than the current intake records being inaccurate; 4 4 of 22 FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022 by failing to communicate with Mr. Austin's wife and daughter Amanda in an effort to explain the life threatening nutritional issue and to request their efforts to work speak with Mr. Austin about his intake; by failing to treat Mr. Austin's weight loss as of May 30, 2016 as a medical emergency that threatened his survival. 12. Throughout the period from May 30, 2016 to June 15, 2016, Dr. Bishop continued to deviate from accepted medical practices concerning each of the issues discussed in paragraph 11. It is my opinion to a reasonable degree of medical certainty that by June 15, 2016, it should have been apparent to Dr. Bishop that all nutritional efforts up to that point had failed. By June 15, 2016, his weight was down to 120.5 pounds and his albumin level was 2.9. 13. Dr. Bishop clearly deviated from accepted medical practices and can be characterized as abandoning Mr. Austin as of June 15, 2016, by virtue of her June 14, 2016 monthly progress note which she knew would be relied upon by the caregivers at James Square and by his new physician, Dr. Changlai. To a reasonable degree of medical certainty, Dr. Bishop's June 14, 2016 note is deficient pursuant to the standards of care, as it fails to note anything concerning the life threatening nutritional issues and weight loss; fails to note and discuss his dropping albumin levels; and it fails to accurately portray the patients history since March 30, 2016 for pressure ulcers including absolutely no mention of his current ulcers nor the extreme risk of further skin breakdown due to this malnutrition and albumin levels. 14. As of March 30, 2016, Mr. Austin was admitted from St Joseph's Hospital with a left sacral/buttocks pressure ulcer, by Dr. Bishop's own note. As of April 19, 2016, Mr. Austin was noted as having a left buttocks pressure ulcer measuring 1.5 x 0.5 x 0.1. As discussed by Dr. Dr. Bishop's May 21, 2016 and June 14, 2016 monthly progress notes were inaccurate where they stated no pressure ulcers. On June 22, 2016 the chart shows 5 5 of 22 FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022 pressure ulcers on both heels and on June 27, 2016 nurse Bulone documented two large stage 3 pressure ulcers on his sacrum. Dr. opined that the large stage 3 pressure ulcers noted on June 27, 2016 were longstanding. Dr. Bishop deviated from accepted medical practices by failing to examine Mr. Austin for pressure ulcers and failing to note pressure ulcers for this patient who was known to be at high risk for skin breakdown based upon the factors set forth in this Affidavit. A medical caregiver and a subsequent treating physician would receive no information from Dr. Bishop's June 14, 2016 note about the serious and life threatening issues of malnutrition, dropping albumin levels and further skin breakdown concerning his heels, buttocks and sacral areas. Pressure ulcers in the sacral and buttocks area are medically recognized as life threatening conditions, especially in a sedentary individual who is not receiving proper necessary nutrition. 15. It is my opinion to a reasonable degree of medical certainty that Dr. Bishop's treatment and charting failures played a role in Mr. Austin's continued malnutrition, his continued worsening of his pressure ulcers and ultimately his fatal condition upon his admission to St. Joseph's Hospital on July 27, 2016. Dr. Bishop's failure to reverse Mr. Austin's malnutrition from March 30, 2016 to June 15, 2016 compromised his ability to thrive, to prevent further pressure ulcers and to heal the ulcers that he had. Dr. Bishop's failure to accurately note Mr. Austin's longstanding life threatening condition in her June 14, 2016 note, including malnutrition and pressure ulcers did not bring about the immediate and aggressive effort to reverse his malnutrition and give extra close attention to his pressure ulcers which were both medically necessary and Dr. Bishop's failure effectively delayed if not prevented James Square from realizing that their nutritional efforts for this patient had failed and he was continuing to be malnourished. Dr. Bishop's June 14, 2016 monthly note, under impression 6 6 of 22 FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022 fails to note malnutrition, serious risk for further skin breakdown or pressure ulcers. Dr. "plan" Bishop's in her June 14, 2016 monthly note fails to set forth the need to undertake immediate and aggressive efforts to reverse malnutrition and to address his pressure ulcers which were life threatening due to their location and due to his malnutrition and decreased albumin level, his body could not heal and it was apparent that the ulcers would continue and become worse. This is not hindsight. By 2016, it was known and understood in internal medicine and geriatric care that there is a direct relationship between a body's minimum nutritional needs and the ability to fend off skin breakdown in the form of pressure ulcers as well as the body's ability to heal such wounds. This well known medical knowledge enabled Dr. Bishop to predict a very dire and life threatening course for Mr. Austin unless his malnutrition could be reversed. 16. It is my opinion to a reasonable degree of medical certainty that Mr. Austin's malnutrition could have been reversed between March 30, 2016 and June 15, 2016, as well as after. Mr. Austin's medical records from James Square and from his March and April admissions to St. Joseph's Hospital do not demonstrate any medical problems with respect to his body's ability to process the nutrients in his diet. His diabetes and his renal failure did not prevent his body from processing and absorbing the nutrients in his diet, the same as other adults with those conditions who do not experience malnutrition. There was no underlying medical condition which doomed Mr. Austin to a state of malnutrition. His dysphagia did not cause his malnutrition. The dysphagia created a risk that he might aspirate food into his airway or lungs and this never occurred. 17. Joel Betesh, MD, in paragraph 24 and 25 of his Affidavit blames Mr. Austin's kidney failure, dialysis, diabetes and swallowing difficulties for his malnutrition, where he 7 7 of 22 FILED: ONONDAGA COUNTY CLERK 08/11/2022 02:58 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 08/11/2022 seems to suggest that he was just too sick to eat or for his body to process the nutrition in the food he did consume. Dr. Betesh does not explain how any of these medical conditions individually or collectively could medically cause malnutrition. He did not explain this because those medical conditions did not compromise Mr. Austin's ability to process the nutrients from the foods he consumed. The only explanation for his malnutrition is the nutritional content of the foods provided and the amount of food consumed. Therefore, from a medical perspective, to a reasonable degree of medical certainty, Dr. Bishop should have known and responded to Mr. Austin's nutritional problems as an emergency from April 19, 2016 through June 15, 2016. I disagree with Dr. Betesh that somehow the nutritional work by the staff at James Square absolved Dr. Bishop of any responsibility for diagnosing and responding to Mr. Austin's continued weight loss and continued dropping albumin levels. The standards of care required that an attending intemist/geriatrician monitor and respond to weight loss and dropping albumin levels as a potentially fatal condition. DR, BISHOP: PRESSURE ULCERS 18. In paragraph 34 of Dr. Betesh's Affidavit, he inaccurately states that the records from St. Joseph's Hospital for Mr. Austin's April 13, 2016 to April 19, 2016 admission did not identify any skin integrity issues. The nursing note flow sheets document that the skin was "not intact" on April 18, 2016 at 11:47 a.m. and 3:50 p.m. On April 19, 2016 at 3:20 a.m. and 9:00