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FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018
NYSCEF DOC. NO. 234 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'
MEMORANDUM
Plaintiffs, OF LAW IN OPPOSITION TO
DR. RAO, DR. CHANGLAI AND
v. DR. NEULANDER'S MOTION
FOR SUMMARY JUDGMENT
PAWAN K. RAO, MD, BRIAN Index No.: 007476/2018
CHANGLAI, MD, JEANNE BISHOP, MD
and OVID NEULANDER, MD,
Defendants.
The Plaintiffs through their attorneys, Knych & Whritenour, LLC, respectfully submit
this Memorandum of Law in opposition to Defendants', Dr. Rao, Dr. Changlai and Dr.
Neulander, Motion for Summary Judgment.
QUESTIONS PRESENTED
I. Whether Defendants Rao, Changlai and Neulander's Motion for Summary
Judgment concerning Plaintiff's medical malpractice cause of action should be denied.
Defendants' Plaintiffs'
II. Whether Motion for Summary Judgment concerning
Public Health Law §2801-d cause of action should be denied.
experts'
III. Whether Plaintiffs may properly redact their names and identifying
qualifications from the reply papers.
BRIEF ANSWERS
I. The Defendants Motions should be denied where they failed to establish a prima
Defendants'
facie case and where Plaintiffs have submitted sufficient proof to rebut arguments
and establish triable issues of fact.
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II. Each of the Defendants provided medical services to Mr. Austin while he was a
resident of a residential healthcare facility, those services were required as part of the services
that James Square had to provide under their license with the State of New York and where
each Plaintiff has established triable issues of fact as to the malpractice of each Defendant and
whether the malpractice of each caused the decedent's conscious pain and suffering and
Defendants'
wrongful death, Motions should be denied.
III. Plaintiffs properly redacted the name and identifying qualifications from the
Motion papers served on the Defendants, with an unredacted copy submitted en camera to the
Court.
FACTS
The facts in support of the Memorandum of Law are as set forth in the Affidavit of
Plaintiffs'
Matthew E. Whritenour, Esq. and the Affidavits of experts submitted herewith.
ARGUMENT
Defendants' Plaintiffs'
I. Motions for Summary Judgment concerning medical
malpractice causes for action should be denied.
A. Proof Required
On a motion for summary judgment, the movant has the burden of proving a prima facie
case by coming forward with sufficient proof in admissible form, establishing that there are no
triable issues of material fact. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
In a medical malpractice action, the proponent of a summary judgment motion must
present expert medical proof which establishes, as a matter of law that no issues of fact exist.
Pinnock v. Mercy Medical Center, 180 A.D.3d 1088 (Second Dept. 2020).
2
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Conclusory expert opinions that a defendant did not depart from accepted medical
practices does not establish a prima facie case in favor of a defendant doctor. Kotler v.
Swersky, 10 A.D.3d 350 (Second Dept. 2004).
Conclusory medical expert Affidavits may be rejected by the Court as inadequate to
establish triable issues of fact. Henson v. Winthrop University Hospital, 249 A.D.2d 510
(Second Dept. 1998). Similarly, medical opinions based upon assumption and inaccurate facts
are insufficient to establish a prima facie case for summary judgment. Winegrad v. New York
University Medical Center, 64 N.Y.2d 851, 853 (1985).
B. Dr. Rao
Defendant Rao relies upon the Affidavit of Dr. Ondocin in the present Motion. It
should be noted that there are considerable conflicts between the testimony of Dr. Rao and the
Affidavit of Dr. Ondocin.
Dr. Ondocin states that the standards of care only required Dr. Rao to make sure that
dialysis was being properly administered and that Dr. Rao had no duty to treat Mr. Austin for
nutritional issues, malnutrition, dropping albumin levels, significant weight loss or for serious
and life threatening decubitus ulcers and any infection in those ulcers.
Dr. Rao stated at his deposition that one of the areas of his responsibility was keeping
track of Mr. Austin's nutritional needs. (Rao transcript, page 32, lines 6-11.) Dr. Rao also
admitted that the task of keeping track of Mr. Austin's nutritional needs was connected to
monitoring the status of any pressure ulcers. (Rao transcript, page 32.) This testimony directly
conflicts with Dr. Ondocin's opinions as to the standards of care, creating issues of fact and
Plaintiffs'
underscoring argument that Dr. Rao did not prove a prima facie case.
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Dr. Rao was not ignorant of any pressure ulcers as argued by Dr. Ondocin. At the time
of his July 1, 2016 letter, Dr. Rao was aware of a pressure ulcer on Mr. Austin's buttocks. (Rao
1st
transcript, pages 24-25.) Dr. Rao's July letter raised serious concerns about malnutrition, a
drop in albumin from 3.9 in March to 2.5 in June which confirmed malnutrition. (Rao
transcript, page 23, lines 15-18.) Dr. Rao testified that he intended that his July 1, 2016 letter
reach Mr. Austin's physicians at James Square, but he never inquired as to their names and did
not copy Dr. Bishop, Dr. Changlai or Dr. Neulaner directly. (Rao transcript, pages 21-22 and
l't
38.) Following Mr. Austin's serious condition as of Dr. Rao's July letter, he became aware
of a further drop in his albumin level from 2.5 to 2.3. (Rao transcript, page 113.) Dr. Rao
admitted that a drop in albumin to 2.3 and infection in a pressure ulcer warranted admission to
a hospital. (Rao transcript, pages 114-115.)
person"
Dr. Ondocin concludes that "Mr. Austin was a very ill and that his malnutrition,
dropping albumin levels, worsening pressure ulcers and the fatal systemic infection caused by
the infection of his pressure ulcers were not evidence of neglect or malpractice. Dr. Ondocin
opined in a conclusory fashion that Mr. Austin's malnutrition and other medical issues were
"co-morbidities"
caused by his and serious conditions such as congestive heart failure, end
stage renal disease, vascular issues and dysphagia. (Ondocin Affidavit, paragraph "55".)
Despite repeating numerous times that Mr. Austin was a very sick person, Dr. Ondocin failed to
"co-morbidities"
set forth why or how his which had been successfully treated for years, were
under control and had not previously caused malnutrition, were somehow to blame for his
condition between March and July of 2016. Dr. Ondocin admits that Mr. Austin began his
dialysis care in 2011. (Ondocin Affidavit, paragraph "19".) Dr. Ondocin also concedes that
Mr. Austin received dialysis three times per week and after five years, on February 4, 2016 his
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weight was 136 pounds, his albumin level was 3.9, Mr. Austin had a good appetite and enjoyed
food. (Ondocin Affidavit, paragraph "25".) Dr. Ondocin lists Mr. Austin's brief
hospitalizations in March of 2016 and April of 2016, but fails to list any new injury or
condition which could explain his malnutrition, continued weight loss and continued dropping
albumin levels. The requisite explanation of the basis for Dr. Ondocin's co-
blaming
morbidities as fatal and untreatable is wholly absent from his Affidavit.
Plaintiffs'
expert internist does not state that Dr. Rao was the captain of the ship for all
of Mr. Austin's care, but that Dr. Rao had an obligation under the standards of care, as early as
June 6, 2016, when it became apparent that the nutritional plan was not working, to bring about
a discussion with Dr. Bishop, team members at James Square and team members at the dialysis
(Plaintiffs'
center or to have admitted him to a hospital for a higher level of care. internist
Affidavit, paragraph "40".)
Plaintiffs'
internist met and rebutted the opinions of Dr. Ondocin head-on and supported
his opinions by Dr. Rao's testimony, the medical records, reference to the specific medical
conditions and the status of those conditions as of the period from March 29, 2016 to July 27,
Plaintiffs'
2016. internist explained his rebuttal to fallacies in Dr. Ondocin's Affidavit
including that Mr. Austin was a very sick man due to co-morbidities, that his conditions were
not treatable as they had been for the prior five years, that Dr. Rao had no duty pursuant to the
standards of care to treat anything but the administration of dialysis and that Dr. Rao's
deviations were a proximate cause of Mr. Austin's pain and suffering and wrongful death. Dr.
Rao's Motion should be denied.
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C. Dr. Neulander
Dr. Neulander's deviations from accepted medical practices are discussed in detail in
Plaintiffs'
expert surgeon's Affidavit and in the Affidavit of Matthew E. Whritenour, Esq.
Plaintiffs'
submitted in opposition to his Motion. expert surgeon directly addressed Dr.
Neulander and his expert Dr. Hannan's statements that Dr. Neulander need only examine and
address specific pressure ulcers at each visit, as specified by the nurses at James Square,
Plaintiffs'
expert surgeon, in paragraphs 35 to 43 sets forth in detail Dr. Neulander's deviations
from accepted medical care.
Plaintiffs'
expert surgeon specifically addresses the opinions of Dr. Neulander's expert,
Plaintiffs'
Dr. Hannan. surgeon explained the flaws in Dr. Neulander's charting practices, how
those flaws affected the care given and that Dr. Hannan's opinions were inaccurate and without
Plaintiffs'
support due to Dr. Neulander's charting deficiencies. For example, surgeon noted
that Dr. Neulander failed to assess nutrition, despite the fact that his wound care note had a box
(Plaintiffs'
for it. surgeon Affidavit, paragraph "37".) Dr. Neulander failed to inquire and note
pain levels to determine the location of pressure ulcers and the possibility of infection.
(Plaintiffs'
surgeon's Affidavit, paragraph "38".) The standards of care required that Dr.
Neulander bring about Mr. Austin's admission to a hospital on June 22, 2016 to aggressively
treat his pressure ulcers on both heels, his buttocks and sacral area to treat or prevent infection,
(Plaintiffs'
arrest malnutrition and to prevent the worsening of the ulcers present. surgeon's
Plaintiffs'
Affidavit, paragraph "41".) expert general surgeon opined and explained that had
Mr. Austin been admitted to a hospital on or prior to July 20, 2016 his death could have been
(Plaintiffs'
prevented. surgeon's Affidavit, paragraph "43".)
Dr. Neulander's Motion should be denied.
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D. Dr. Changlai
The deviations from accepted medical practices by Dr. Changlai are set forth in the
Plaintiffs'
Affidavit of expert internist in paragraph 41 to 46 and in the Affidavit of Matthew E.
Plaintiffs'
Whritenour, Esq. submitted herewith. internist directly addressed the opinions of
Defendant Changlai's expert, Dr. Salzman.
Dr. Salzman incorrectely suggested that a physician such as Dr. Changlai is barred from
seeing a patient in a nursing home as frequent as is medically necessary for the patient's care.
Dr. Salzman joined the chorus in blaming co-morbidities for Mr. Austin's malnutrition, but also
failed to explain which co-morbidities were responsible or how they were responsible.
Plaintiffs'
expert internist keyed in on Dr. Changlai's deposition testimony where he
admitted that Mr. Austin's weight as of July 19, 2016, at 119 pounds, was "absolutely
(Plaintiffs'
abnormal", "malnutritioned", "anorexia". internist's Affidavit, paragraph "45".)
Plaintiffs'
expert internist opined that Dr. Changlai deviated from accepted medical practices
by concluding that Mr. Austin would soon pass away on July 19, 2016, without undertaking
any effort to contact the family, speak to the patient or request that he be brought to a hospital
(Plaintiffs' Plaintiffs'
for a higher level of care. internist's Affidavit, paragraph "46".) expert
internist opined throughout his Affidavit that there was no medical reason for Mr. Austin's
malnutrition, meaning that his co-morbidities were not somehow preventing his body from
eating or processing food, that his malnutrition was treatable and reversible as of July 19, 2016.
(Plaintiffs'
surgeon's Affidavit, paragraph "43".)
Dr. Changlai's Motion should be denied.
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W. Public Health Law cause of action.
Public Heath Law §2801-d creates a private right of action in favor of patients who are
injured or suffer wrongful death in a residential care facility, such as a nursing home. Pichardo
v. St. Barnabas Nursing Home, Inc., 134 A.D.3d 421 (First Dept. 2015).
Defendant Bishop cites Dray v. Staten Island University Hospital, 160 A.D.3d 614
(Second Dept. 2018) stating that since the Court in D_ray held that Public Health Law §2803-c
is not applicable to hospitals, so too it should not be applicable to Dr. Bishop since she is not a
residential healthcare facility.
Not cited by Defendants, is the related case Dray v. Staten Island University Hospital,
160 A.D.3d 620 (Second Dept. 2018). In this related case, the Second Department held that
plaintiff could not bring a Public Health Law §2803-c cause of action against private attending
physicians at the hospital.
Doctors Rao, Neulander and Changlai were providing medical care to a patient who was
a resident of a residential healthcare facility. The care provided by each doctor was required to
be provided by James Square pursuant to their license within the State of New York. None of
the Defendant physicians saw Mr. Austin as a private attending physician.
Even Dr. Rao's care was required to be provided by James Square where they agreed to
accept a resident who was receiving dialysis care.
Therefore, the present case presents a unique legal issue of first impression. Doctors
Rao, Neulander and Changlai's care was not provided as an employee of James Square, but
certainly as their agent in so far as their medical services were an integral part of the care that
James Square was licensed to provide as a licensed residential care facility and they could not
be so-licensed without the services of physicians such as Doctors Rao, Neulander and
8
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"
Changlai. Section 2801-d specifically provides that "For purposes of this section a Any
residential health care facility that deprives any patient of said facility of any right or benefit, as
hereinafter defined, shall be liable to said patient for injuries suffered as a result of said
'right' 'benefit'
deprivation, except as he
Preview
FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 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' MEMORANDUM Plaintiffs, OF LAW IN OPPOSITION TO DR. RAO, DR. CHANGLAI AND v. DR. NEULANDER'S MOTION FOR SUMMARY JUDGMENT PAWAN K. RAO, MD, BRIAN Index No.: 007476/2018 CHANGLAI, MD, JEANNE BISHOP, MD and OVID NEULANDER, MD, Defendants. The Plaintiffs through their attorneys, Knych & Whritenour, LLC, respectfully submit this Memorandum of Law in opposition to Defendants', Dr. Rao, Dr. Changlai and Dr. Neulander, Motion for Summary Judgment. QUESTIONS PRESENTED I. Whether Defendants Rao, Changlai and Neulander's Motion for Summary Judgment concerning Plaintiff's medical malpractice cause of action should be denied. Defendants' Plaintiffs' II. Whether Motion for Summary Judgment concerning Public Health Law §2801-d cause of action should be denied. experts' III. Whether Plaintiffs may properly redact their names and identifying qualifications from the reply papers. BRIEF ANSWERS I. The Defendants Motions should be denied where they failed to establish a prima Defendants' facie case and where Plaintiffs have submitted sufficient proof to rebut arguments and establish triable issues of fact. 1 of 12 FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 08/11/2022 II. Each of the Defendants provided medical services to Mr. Austin while he was a resident of a residential healthcare facility, those services were required as part of the services that James Square had to provide under their license with the State of New York and where each Plaintiff has established triable issues of fact as to the malpractice of each Defendant and whether the malpractice of each caused the decedent's conscious pain and suffering and Defendants' wrongful death, Motions should be denied. III. Plaintiffs properly redacted the name and identifying qualifications from the Motion papers served on the Defendants, with an unredacted copy submitted en camera to the Court. FACTS The facts in support of the Memorandum of Law are as set forth in the Affidavit of Plaintiffs' Matthew E. Whritenour, Esq. and the Affidavits of experts submitted herewith. ARGUMENT Defendants' Plaintiffs' I. Motions for Summary Judgment concerning medical malpractice causes for action should be denied. A. Proof Required On a motion for summary judgment, the movant has the burden of proving a prima facie case by coming forward with sufficient proof in admissible form, establishing that there are no triable issues of material fact. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). In a medical malpractice action, the proponent of a summary judgment motion must present expert medical proof which establishes, as a matter of law that no issues of fact exist. Pinnock v. Mercy Medical Center, 180 A.D.3d 1088 (Second Dept. 2020). 2 2 of 12 FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 08/11/2022 Conclusory expert opinions that a defendant did not depart from accepted medical practices does not establish a prima facie case in favor of a defendant doctor. Kotler v. Swersky, 10 A.D.3d 350 (Second Dept. 2004). Conclusory medical expert Affidavits may be rejected by the Court as inadequate to establish triable issues of fact. Henson v. Winthrop University Hospital, 249 A.D.2d 510 (Second Dept. 1998). Similarly, medical opinions based upon assumption and inaccurate facts are insufficient to establish a prima facie case for summary judgment. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985). B. Dr. Rao Defendant Rao relies upon the Affidavit of Dr. Ondocin in the present Motion. It should be noted that there are considerable conflicts between the testimony of Dr. Rao and the Affidavit of Dr. Ondocin. Dr. Ondocin states that the standards of care only required Dr. Rao to make sure that dialysis was being properly administered and that Dr. Rao had no duty to treat Mr. Austin for nutritional issues, malnutrition, dropping albumin levels, significant weight loss or for serious and life threatening decubitus ulcers and any infection in those ulcers. Dr. Rao stated at his deposition that one of the areas of his responsibility was keeping track of Mr. Austin's nutritional needs. (Rao transcript, page 32, lines 6-11.) Dr. Rao also admitted that the task of keeping track of Mr. Austin's nutritional needs was connected to monitoring the status of any pressure ulcers. (Rao transcript, page 32.) This testimony directly conflicts with Dr. Ondocin's opinions as to the standards of care, creating issues of fact and Plaintiffs' underscoring argument that Dr. Rao did not prove a prima facie case. 3 3 of 12 FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 08/11/2022 Dr. Rao was not ignorant of any pressure ulcers as argued by Dr. Ondocin. At the time of his July 1, 2016 letter, Dr. Rao was aware of a pressure ulcer on Mr. Austin's buttocks. (Rao 1st transcript, pages 24-25.) Dr. Rao's July letter raised serious concerns about malnutrition, a drop in albumin from 3.9 in March to 2.5 in June which confirmed malnutrition. (Rao transcript, page 23, lines 15-18.) Dr. Rao testified that he intended that his July 1, 2016 letter reach Mr. Austin's physicians at James Square, but he never inquired as to their names and did not copy Dr. Bishop, Dr. Changlai or Dr. Neulaner directly. (Rao transcript, pages 21-22 and l't 38.) Following Mr. Austin's serious condition as of Dr. Rao's July letter, he became aware of a further drop in his albumin level from 2.5 to 2.3. (Rao transcript, page 113.) Dr. Rao admitted that a drop in albumin to 2.3 and infection in a pressure ulcer warranted admission to a hospital. (Rao transcript, pages 114-115.) person" Dr. Ondocin concludes that "Mr. Austin was a very ill and that his malnutrition, dropping albumin levels, worsening pressure ulcers and the fatal systemic infection caused by the infection of his pressure ulcers were not evidence of neglect or malpractice. Dr. Ondocin opined in a conclusory fashion that Mr. Austin's malnutrition and other medical issues were "co-morbidities" caused by his and serious conditions such as congestive heart failure, end stage renal disease, vascular issues and dysphagia. (Ondocin Affidavit, paragraph "55".) Despite repeating numerous times that Mr. Austin was a very sick person, Dr. Ondocin failed to "co-morbidities" set forth why or how his which had been successfully treated for years, were under control and had not previously caused malnutrition, were somehow to blame for his condition between March and July of 2016. Dr. Ondocin admits that Mr. Austin began his dialysis care in 2011. (Ondocin Affidavit, paragraph "19".) Dr. Ondocin also concedes that Mr. Austin received dialysis three times per week and after five years, on February 4, 2016 his 4 4 of 12 FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 08/11/2022 weight was 136 pounds, his albumin level was 3.9, Mr. Austin had a good appetite and enjoyed food. (Ondocin Affidavit, paragraph "25".) Dr. Ondocin lists Mr. Austin's brief hospitalizations in March of 2016 and April of 2016, but fails to list any new injury or condition which could explain his malnutrition, continued weight loss and continued dropping albumin levels. The requisite explanation of the basis for Dr. Ondocin's co- blaming morbidities as fatal and untreatable is wholly absent from his Affidavit. Plaintiffs' expert internist does not state that Dr. Rao was the captain of the ship for all of Mr. Austin's care, but that Dr. Rao had an obligation under the standards of care, as early as June 6, 2016, when it became apparent that the nutritional plan was not working, to bring about a discussion with Dr. Bishop, team members at James Square and team members at the dialysis (Plaintiffs' center or to have admitted him to a hospital for a higher level of care. internist Affidavit, paragraph "40".) Plaintiffs' internist met and rebutted the opinions of Dr. Ondocin head-on and supported his opinions by Dr. Rao's testimony, the medical records, reference to the specific medical conditions and the status of those conditions as of the period from March 29, 2016 to July 27, Plaintiffs' 2016. internist explained his rebuttal to fallacies in Dr. Ondocin's Affidavit including that Mr. Austin was a very sick man due to co-morbidities, that his conditions were not treatable as they had been for the prior five years, that Dr. Rao had no duty pursuant to the standards of care to treat anything but the administration of dialysis and that Dr. Rao's deviations were a proximate cause of Mr. Austin's pain and suffering and wrongful death. Dr. Rao's Motion should be denied. 5 5 of 12 FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 08/11/2022 C. Dr. Neulander Dr. Neulander's deviations from accepted medical practices are discussed in detail in Plaintiffs' expert surgeon's Affidavit and in the Affidavit of Matthew E. Whritenour, Esq. Plaintiffs' submitted in opposition to his Motion. expert surgeon directly addressed Dr. Neulander and his expert Dr. Hannan's statements that Dr. Neulander need only examine and address specific pressure ulcers at each visit, as specified by the nurses at James Square, Plaintiffs' expert surgeon, in paragraphs 35 to 43 sets forth in detail Dr. Neulander's deviations from accepted medical care. Plaintiffs' expert surgeon specifically addresses the opinions of Dr. Neulander's expert, Plaintiffs' Dr. Hannan. surgeon explained the flaws in Dr. Neulander's charting practices, how those flaws affected the care given and that Dr. Hannan's opinions were inaccurate and without Plaintiffs' support due to Dr. Neulander's charting deficiencies. For example, surgeon noted that Dr. Neulander failed to assess nutrition, despite the fact that his wound care note had a box (Plaintiffs' for it. surgeon Affidavit, paragraph "37".) Dr. Neulander failed to inquire and note pain levels to determine the location of pressure ulcers and the possibility of infection. (Plaintiffs' surgeon's Affidavit, paragraph "38".) The standards of care required that Dr. Neulander bring about Mr. Austin's admission to a hospital on June 22, 2016 to aggressively treat his pressure ulcers on both heels, his buttocks and sacral area to treat or prevent infection, (Plaintiffs' arrest malnutrition and to prevent the worsening of the ulcers present. surgeon's Plaintiffs' Affidavit, paragraph "41".) expert general surgeon opined and explained that had Mr. Austin been admitted to a hospital on or prior to July 20, 2016 his death could have been (Plaintiffs' prevented. surgeon's Affidavit, paragraph "43".) Dr. Neulander's Motion should be denied. 6 6 of 12 FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 08/11/2022 D. Dr. Changlai The deviations from accepted medical practices by Dr. Changlai are set forth in the Plaintiffs' Affidavit of expert internist in paragraph 41 to 46 and in the Affidavit of Matthew E. Plaintiffs' Whritenour, Esq. submitted herewith. internist directly addressed the opinions of Defendant Changlai's expert, Dr. Salzman. Dr. Salzman incorrectely suggested that a physician such as Dr. Changlai is barred from seeing a patient in a nursing home as frequent as is medically necessary for the patient's care. Dr. Salzman joined the chorus in blaming co-morbidities for Mr. Austin's malnutrition, but also failed to explain which co-morbidities were responsible or how they were responsible. Plaintiffs' expert internist keyed in on Dr. Changlai's deposition testimony where he admitted that Mr. Austin's weight as of July 19, 2016, at 119 pounds, was "absolutely (Plaintiffs' abnormal", "malnutritioned", "anorexia". internist's Affidavit, paragraph "45".) Plaintiffs' expert internist opined that Dr. Changlai deviated from accepted medical practices by concluding that Mr. Austin would soon pass away on July 19, 2016, without undertaking any effort to contact the family, speak to the patient or request that he be brought to a hospital (Plaintiffs' Plaintiffs' for a higher level of care. internist's Affidavit, paragraph "46".) expert internist opined throughout his Affidavit that there was no medical reason for Mr. Austin's malnutrition, meaning that his co-morbidities were not somehow preventing his body from eating or processing food, that his malnutrition was treatable and reversible as of July 19, 2016. (Plaintiffs' surgeon's Affidavit, paragraph "43".) Dr. Changlai's Motion should be denied. 7 7 of 12 FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 08/11/2022 W. Public Health Law cause of action. Public Heath Law §2801-d creates a private right of action in favor of patients who are injured or suffer wrongful death in a residential care facility, such as a nursing home. Pichardo v. St. Barnabas Nursing Home, Inc., 134 A.D.3d 421 (First Dept. 2015). Defendant Bishop cites Dray v. Staten Island University Hospital, 160 A.D.3d 614 (Second Dept. 2018) stating that since the Court in D_ray held that Public Health Law §2803-c is not applicable to hospitals, so too it should not be applicable to Dr. Bishop since she is not a residential healthcare facility. Not cited by Defendants, is the related case Dray v. Staten Island University Hospital, 160 A.D.3d 620 (Second Dept. 2018). In this related case, the Second Department held that plaintiff could not bring a Public Health Law §2803-c cause of action against private attending physicians at the hospital. Doctors Rao, Neulander and Changlai were providing medical care to a patient who was a resident of a residential healthcare facility. The care provided by each doctor was required to be provided by James Square pursuant to their license within the State of New York. None of the Defendant physicians saw Mr. Austin as a private attending physician. Even Dr. Rao's care was required to be provided by James Square where they agreed to accept a resident who was receiving dialysis care. Therefore, the present case presents a unique legal issue of first impression. Doctors Rao, Neulander and Changlai's care was not provided as an employee of James Square, but certainly as their agent in so far as their medical services were an integral part of the care that James Square was licensed to provide as a licensed residential care facility and they could not be so-licensed without the services of physicians such as Doctors Rao, Neulander and 8 8 of 12 FILED: ONONDAGA COUNTY CLERK 08/11/2022 03:29 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 234 RECEIVED NYSCEF: 08/11/2022 " Changlai. Section 2801-d specifically provides that "For purposes of this section a Any residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said 'right' 'benefit' deprivation, except as he