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FILED: ERIE COUNTY CLERK 02/19/2020 03:57 PM INDEX NO. 809353/2018
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 02/19/2020
STATE OF NEW YORK
SUPREME COURT COUNTY OF ERIE
KATHARINE NOGA as Preliminary Executrix
of the Estate of GEORGE NOGA, a/k/a
GEORGE S. NOGA, SR.,
ATTORNEY AFFIRMATION
Plaintiff,
Index No.: 809353/2018
v.
BROTHERS OF MERCY NURSING &
REHABILITATION CENTER;
BROTHERS OF MERCY NURSING HOME
COMPANY, INC.
Defendants.
JON P. GETZ, ESQ., being duly sworn, deposes and affirms the following to be true
under penalties of perjury pursuant to CPLR § 2106:
1. I am an attorney duly admitted to practice before the courts of the State of New
York, and a member of the law firm Vahey Getz, LLP, attorneys for defendants Brothers of
Mercy Nursing & Rehabilitation Center and Brothers of Mercy Nursing Home Company,
Inc., (collectively, “Brothers of Mercy”) in the above-captioned action. As such, I am fully
familiar with the facts and circumstances set forth herein.
2. This Affirmation and the Expert Reply Affirmation of Sharon Brangman, M.D.
(attached hereto as Exhibit A1 and incorporated herein) are submitted in further support of
Brothers of Mercy’s motion for summary judgment to dismiss the complaint with prejudice
pursuant to CPLR 3212.
1
Hereinafter, Exhibit A will be referenced as “Brangman Aff.”
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3. Initially, it should be noted that Plaintiff’s counsel incorrectly characterizes
Cynthia Shafer, R.N. as an expert witness for Brothers of Mercy. Ms. Shafer is an employee
of Brothers of Mercy and her affidavit in support of Brothers of Mercy’s motion for summary
judgment was provided in her capacity as an employee of the facility, not as an expert witness.
STATEMENT OF FACTS
4. Brothers of Mercy reiterates the facts as initially presented in my affirmation
dated December 12, 2019. (Dkt. #24). Some clarification is required, however, as to the facts
as proffered by Plaintiff.
5. Erica Marshall testified that she brought Mr. Noga to the day room about 12:45
p.m. (Dkt. #32, pp. 46-47). She thereafter came back to the day room to let Mr. Noga when
the patio hours began. (Dkt. #32, p. 52). Ms. Marshall also brought Mr. Noga a cup of coffee.
(Dkt. #32, p. 52). Although Mr. Noga was alone in the day room, Brothers of Mercy staff
checked in on him periodically. A witness statement obtained as part of the Accident/Incident
Report sets forth that the witness observed Mr. Noga sitting in his wheelchair in the day room
at 2:40 p.m. and at 2:45 p.m. (Dkt. #34, p. BOM000015).
6. Plaintiff’s counsel references the June 14, 2016 nursing notes that state
“placement of seat belt pending until xray results and further orders obtained.” (Dkt. #34, p.
BOM000525). “Further orders” refers to “MD Orders Update” (Dkt. #34, p. BOM000525) -
orders which would be made by Hospice Buffalo physician Dr. Christopher Jacobus (Dkt.
#34, p. BOM000525).
7. In the incomplete and uncertified medical records from Millard Fillmore
Plaintiff attached to her opposition papers as Exhibit 2 (and incorrectly cited as Exhibit 1),
the following is also noted:
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a. Mr. Noga was morbidly obese (Dkt. #41, p. 1);
b. The palliative care consultation notes state that Mr. Noga signed his
own MOLST and wanted comfort care only with no labs or diagnostics
performed “not even to be weighed”. Further “[w]e have discussed the
patient with Hospice Buffalo and confirmed his admission to their
program.” (Dkt. #41, p. 7);
c. Mr. Noga indicated on admission to Millard Fillmore that he “does not
want any treatment other than pain control.” (Dkt. #41, p. 11);
d. When Mr. Noga was pronounced dead at 4:36 p.m. on June 16, 2016
“no family members are present at the bedside” (Dkt. #41, p. 2);
ARGUMENT
8. Plaintiff’s counsel repeatedly deflects from presenting opposition to Brothers
of Mercy’s motion papers, by claiming that Brothers of Mercy’s motion for summary
judgment “is comprised primarily of attempts to point to gaps in Plaintiff’s proof.” See e.g.
Attorney’s Affirmation in Opposition of Nicole T.C. Marques, Esq., dated February 12, 2020
(hereinafter “Marques Aff.”), ¶ 41. This ignores the almost one hundred pages - in
affirmations and affidavits alone - of detailed facts and arguments Brothers of Mercy
presented in support of their motion, going point by point through George Noga’s
(“Decedent” or “Noga”) records and refuting Plaintiff’s allegations.
I. Because Brothers of Mercy Were Not Negligent in Rendering Care and Treatment
to Mr. Noga, Plaintiff’s First Cause of Action Must be Dismissed
9. Brothers of Mercy reiterates the detailed arguments and analysis set forth in the
initial moving papers that have established they were not negligent in rendering care and
treatment to Mr. Noga.
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A. Brothers of Mercy Met Their Prima Facie Burden of Establishing That They
Were Not Negligent in Rendering Care and Treatment to Decedent
10. Importantly, according to Dr. Brangman, “when a nursing home patient is
cognitively intact, it is the obligation of the nursing home team to respond and listen to the
wishes of that patient in directing daily care, including what the patient wants to eat, whether
the patient wants to bathe or not, and what time the patient chooses to get up or go to bed.”
Brangman Aff., ¶ 7. Mr. Noga was cognitively intact and Brothers of Mercy strove to abide
by his rights of self-determination as to how he wanted to live out his last days. Brangman
Aff., ¶ 10.
11. The uncontested evidence in Mr. Noga’s medical records demonstrated that he
could direct his own care, including his daily care. Plaintiff does not dispute Mr. Noga’s
decision-making capabilities.
12. Seatbelts on a wheelchair are still considered a form of restraint and are
contrary to policies regarding the use of restraints on residents in nursing homes. According
to Dr. Brangman, most nursing homes no longer use seat belts or other restraints. Brothers of
Mercy is a “no restraint” facility. Brangman Aff., ¶ 12.
13. As set forth more fully by Dr. Brangman, while claiming that Mr. Noga “could
have” been belted into the tilt wheelchair, Dr. Schwartz fails to account for Mr. Noga’s
medical condition. Mr. Noga was a double above-the knee amputee who weighed
approximately 248 pounds. Brangman Aff., ¶ 14. With Mr. Noga’s double above the knee
amputations, he would have a different center of gravity that the average patient with legs in
a wheelchair. Putting a seat belt on him could increase his chances of tipping over in the
wheelchair if he leaned forward, possibly causing the chair to end up on top of him, causing
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additional injuries or more significant injuries than if Mr. Noga were no belted into the
wheelchair. Brangman Aff., ¶ 15.
14. Further, Mr. Noga was admitted to Brothers of Mercy with multiple skin issues,
and a lap belt would likely have further aggravated these skin conditions. See Brangman Aff.,
¶ 16.
15. More importantly, Dr. Schwartz acknowledges that the facility’s investigation
following the fall yielded that Mr. Noga told staff he was trying to get up and walk when he
fell (Dkt. #40, ¶ 28); yet, Dr. Schwartz offers no opinion as to how a restraint would have
stopped this accident from occurring.
16. Plaintiff contends that Brothers of Mercy failed to update the care plan to
reassess for fall risk. See Dkt. #40.
17. On this point, Plaintiff states that “Defendants…admit and acknowledge that
Cheryl J. Klyczk (occupational therapist) was employed by Brothers of Mercy” (Marques
Aff., ¶ 57), and cites to a statement by Teresa Dillsworth in support of that contention. Yet,
Plaintiff also asks for this statement (and other statements made by Teresa Dillsworth) “upon
information and belief” to be disregarded (Marques Aff., ¶ 88). Plaintiff cannot have it both
ways. Plaintiff cannot pick and choose only the portions she views as favorable to her to be
considered for probative value.
18. Reassessing Mr. Noga’s fall risk would be fixing a non-problem. Mr. Noga had
no incidence of falls after his April 11, 2016 Care Plan update and placement in the tilt-in-
space wheelchair. According to Dr. Brangman, it is presumed the falls protocols put in place
were adequate and there would be no need to update his care plan. See Brangman Aff., ¶ 17.
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19. Confusingly, Plaintiff’s expert states that Mr. Noga’s chart indicates he “was
able to make his own health care decisions and participate in activities” in June 2016 (Dkt.
#40, ¶ 37), but then he opines that Mr. Noga needed constant supervision. The latter opinion
is clearly in contravention to the guiding principles of self-determination and autonomy that
govern nursing homes and permeate the Public Health statutes. See e.g. Brangman Aff., ¶¶ 6-
7, 18-20.
20. This is a man who was dying, who was competent to make his own decisions
regarding his care. He wanted to enjoy a cup of coffee in the day room. He had an unfortunate
accident, but this accident does not equate to negligence.
B. Because Brothers of Mercy Met Their Prima Facie Burden of Establishing
That They Did Not Depart from Accepted Standards of Care in Providing
Treatment to Mr. Noga and Their Actions Were Not a Proximate Cause of Mr.
Noga’s Injuries, Plaintiff’s Claim for Professional Negligence Must be Dismissed
21. When a complaint challenges assessing the supervisory and treatment needs of
a patient, this conduct is an integral part of rendering medical treatment and thus sounds in
medical malpractice. (See Dkt. #37, Memorandum of Law in Support of Defendant’s Motion
for Summary Judgment, pp. 10-11).
22. Plaintiff claims Brothers of Mercy failed to provide appropriate nursing home
care by “failing to develop an appropriate plan of care.” Marques Aff., ¶ 43.
23. As set forth more fully in Brothers of Mercy’s initial motion papers and as
detailed in case law, developing a plan of care is a claim of professional malpractice. (See Dkt.
# 16, Point I(B), Dkt. #37, pp. 10-15).
24. Similarly, allegations of improper assessment of a patient’s condition and the
degree of supervision required sounds in medical malpractice rather than negligence. See
accompanying Memorandum of Law.
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25. Here, in opposition to summary judgment, both Plaintiff and her expert
repeatedly allege that Brothers of Mercy improperly assessed Mr. Noga’s condition, including
the measures that should have been put in place to alleviate fall risk and Plaintiff’s expert
opines that Mr. Noga should have had constant supervision. These are clearly allegations of
medical malpractice.
26. Plaintiff further fails to refute any of the arguments or present case law to
counter Brothers of Mercy’s detailed arguments dividing Plaintiff’s claims between those
alleging negligence and those alleging professional malpractice, except to say that because she
says the claims are not malpractice, then they are not malpractice.
27. As set forth above, Ms. Shafer is not an expert for Brothers of Mercy. Thus,
Plaintiff’s argument that “the conflict [sic] opinions…of Defendants’ experts” precludes
summary judgment is without merit. Marques Aff., ¶ 49.
28. Plaintiff’s expert opines that the fracture “placed insurmountable stress on Mr.
Noga’s body system…that directly contributed to his death.” (Dkt. #40, ¶ 37). Plaintiff’s
expert makes this conclusory opinion while ignoring that Mr. Noga was on hospice for multi-
organ failure at the time of the fall and was no longer on dialysis for his failing kidneys.
According to his death certificate, Mr. Noga died as a result of cardiopulmonary arrest due
to coronary artery disease and/or end stage renal failure. (Dkt. #33). The fall or alleged
resultant injuries are not listed as a cause or contributing factor of his death.
29. Moreover, any changes in physician orders (i.e. medication, treatments) for
Mr. Noga, Brothers of Mercy was instructed to contact Hospice Buffalo (see Dkt. #34, p.
BOM000021). Dr. Christopher Jacobus was the physician who signed off on the care plan,
medical orders and who made physician visits to Mr. Noga (see Dkt. #34).
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30. Without conceding the validity of Plaintiff’s claims, the record shows that any
changes to Mr. Noga’s care plan were referred to Dr. Jacobus of Hospice Buffalo. (Dkt. #34,
p. BOM000525). The uncertified records Plaintiff submitted from Millard Filmore confirm
that Mr. Noga was part of the Hospice Buffalo hospice program. (Dkt. #41, p. 7).
31. As set forth in Brothers of Mercy’s initial motion papers, to the extent any of
Plaintiff’s allegations of malpractice pertain to conduct or alleged conduct on the part of
individuals not employed by Brothers of Mercy, Brothers of Mercy cannot be held liable for
these allegations and such claims should be dismissed as to Brothers of Mercy.
32. Based on the previously submitted motion papers as well as the accompanying
affirmation of Dr. Brangman, Brothers of Mercy was not negligent in their care of Mr. Noga.
II. Because Plaintiff Fails to Meet All the Elements Required for a Wrongful Death
Claim, the Second Cause of Action Must be Dismissed
33. Brothers of Mercy are entitled to summary judgment dismissing Plaintiff’s
second cause of action because they have established Decedent’s death was not caused by any
alleged negligence on the part of Brothers of Mercy.
34. Brothers of Mercy have established prima facie entitlement to summary
judgment on Plaintiff’s wrongful death claim through the expert medical affirmations of
Sharon Brangman, M.D., who opines that Decedent died of natural causes due to his
significant medical history of coronary artery disease and end stage renal failure, and not as
a result of any alleged negligence on the part of Brothers of Mercy (see Brangman Aff.; Dkt.
#25).
35. Mr. Noga’s death certificate also indicates he died of cardiopulmonary arrest
due to coronary artery disease and/or end stage renal failure. (Dkt. #33). The fall or alleged
resultant injuries are not listed as a cause.
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36. Plaintiff also contends that Brothers of Mercy “mischaracterizes” her
allegations as to the wrongful death claim. However, Plaintiff specifically indicates that she
is not making a claim for pecuniary loss in her Bill of Particulars (Dkt. #29, pp. 17-18).
37. Particularly, in response to question 21, which asks in part “[t]he manner and
respect in which it will be claimed that that person incurred a loss of inheritance or pecuniary
loss,” Plaintiff states “(a.-b.) Not applicable. Loss of inheritance or pecuniary loss is not
claimed with regard to the instant action.” (Dkt. #29, pp. 17-18).
38. It is unclear how Plaintiff’s own statement is a “mischaracterization” of her
claims or how it is an attempt to “improperly shift the burden of proof to Plaintiff” (as it is
Plaintiff’s burden to prove her claims). See Marques Aff., ¶ 65.
39. Further, although Plaintiff contends she alleges pecuniary loss in the form of
loss of moral support and guidance, she failed to submit any affidavits to provide any facts to
support this allegation. This failure is fatal to the claim for wrongful death.
40. Based on the aforementioned reasons, and those set out in the initial motion
papers, Brothers of Mercy are entitled to summary judgment dismissing Plaintiff’s cause of
action for wrongful death.
III. Because Brothers of Mercy Have Not Violated Public Health Law, Plaintiff’s Third
Cause of Action Must be Dismissed
41. Brothers of Mercy are entitled to summary judgment dismissing Plaintiff’s third
cause of action based upon violations of Public Health Law §§ 2801-d and 2803-c. Brothers
of Mercy have established, through the certified medical records, expert affirmations of
Sharon Brangman, M.D. and affidavits of Cynthia Shafer, R.N. and Brothers of Mercy
Administrator Teresa Dillsworth, they did not violate the various state regulations asserted in
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Plaintiff’s Bill of Particulars as the basis for this cause of action and, none of the alleged
injuries were proximately caused by these alleged violations.
42. Where there is a claim for violating Public Health Law, summary judgment in
favor of a nursing home is appropriate where the evidence establishes that the decedent’s
injuries did not arise through any action or negligence of its employees and/or that none of
the alleged injuries were proximately caused by a violation of the statutes upon which the
claims are predicated.
43. In the Verified Bill of Particulars, Plaintiff alleges that Brothers of Mercy
violated a myriad of statutes. However, Plaintiff has failed to put forth proof to substantiate
these allegations. That is because there is none.
44. Significantly, at her deposition, Plaintiff testified that aside from her belief that
there should have been a belt for Mr. Noga’s wheelchair, there were no other services Brothers
of Mercy failed to provide and that she did not believe there was an unsafe environment for
Mr. Noga at Brothers of Mercy. (Dkt. #30, pp. 35 – 36).
45. In their initial moving papers, Brothers of Mercy went through each of the
allegations in Plaintiff’s Bill of Particulars to show how the statutes were not violated. (Dkt.
#24, ¶¶ 130-174). Tellingly, Plaintiff fails to refute these arguments in her response papers.
46. Consequently, any of those claimed statutory violations Plaintiff fails to address
in opposition to the motion should be dismissed on summary judgment.
47. Moreover, Plaintiff’s new claims that Brothers of Mercy failed to assist
Decedent with bathing run contrary to her deposition testimony wherein she testified that
aside from her belief that there should have been a belt for Mr. Noga’s wheelchair, there were
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no other services Brothers of Mercy failed to provide and that she did not believe there was
an unsafe environment for Mr. Noga at Brothers of Mercy. (Dkt. #30, pp. 35 – 36).
48. These allegations are also without merit based on Mr. Noga’s medical record.
Although the record reflects that Noga did not have a daily shower, his preference was a
shower only once per week (Dkt. #34, p. BOM000559).
49. Dr. Schwartz contends that Mr. Noga was deprived of “ bath of any sort” while
he resided at Brothers of Mercy (Dkt. #40, ¶ 56), but the records are replete with entries
showing Mr. Noga was regularly checked for moisture and cleansed frequently (see e.g. Dkt.
#34, pp. BOM000086, BOM000090, BOM000100, BOM000104, BOM000398-399).
50. Plaintiff also ignores that Mr. Noga was still able to make his own decisions to
direct his care. The text of 10 NYCRR 415.12 specifically notes that all care provided shall be
subject to the resident's right of self-determination. If Mr. Noga chose not to go for a shower
or bath, then Brothers of Mercy could not force him to do so.
51. Lastly, without conceding the validity of Plaintiff’s claims as to alleged failures
to assist Mr. Noga with bathing, for statutory liability to attach, there must be injuries
associated with that alleged failure. Plaintiff fails to show any injury as a result of this
allegation, and cannot, because there was no injury and was no failure.
IV. Because There is No Independent Cause of Action for “Deprivation of Dignity,”
Plaintiff’s Fourth Cause of Action Must be Dismissed
52. Plaintiff asserts causes of action for ordinary negligence and violations of Public
Health Law §§ 2801-d and 2803-c (see,Dkt. #27, ¶¶ 12-17, 22-25). Thus, the fourth cause of
action can only be characterized as a claim for “deprivation of dignity” (see Dkt. #27, ¶¶ 26-
29).
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53. Plaintiff fails to refute any of Brothers of Mercy’s arguments that “deprivation
of dignity” is not a recognized cause of action under the common law, and, to the extent it is
a recognized statutory action, it is duplicative of Plaintiff’s cause of action alleging violations
of Public Health Law §§ 2801-d and 2803-c.
54. Thus, this Court must dismiss Plaintiff’s fourth cause of action as a matter of
law because it cannot stand as a separate cause of action.
V. Where Plaintiff’s Allegations in Her Bill of Particulars Exceed the Scope of Her
Complaint, Those Allegations Must be Dismissed
A. Allegations of gross negligence exceed the scope the complaint and must be
dismissed
55. As set forth above, Plaintiff alleged four causes of action: (1) ordinary
negligence; (2) wrongful death; 3) violations of Public Health Law §§ 2801-d and 2803-c and
(4) “deprivation of dignity” (see Dkt. #27) – not gross negligence.
56. Plaintiff claims that she was “not setting forth another cause of action…but
rather setting forth contentions supporting Plaintiff’s claim for punitive damages, available
under the Public Health Law.” Marques Aff., ¶ 78.
57. However, the allegations Brothers of Mercy references are not those made in
response to the question regarding punitive damages in the Bill of Particulars.
58. As discussed in Brothers of Mercy’s initial motion papers, in response to
Brothers of Mercy’s demand for further particularization of “the manner and respect in which
it is claimed the defendants were negligent,” [question #1](emphasis added) Plaintiff stated,
among other things, that Defendants “willfully and wantonly disregarded the safety and well-
being of the decedent” and “engaged in gross deviation from and/or willful and wanton
disregard of decedent's care plan.” (Dkt. #29, pp. 2-3).
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59. It is well settled that a bill of particulars cannot allege a theory or claim not
originally asserted in the complaint.
60. Gross negligence is a separate and distinct cause of action from ordinary
negligence.
61. Not only is Plaintiff’s Complaint lacking a separate cause of action alleging
gross negligence (see Dkt. #27), but it is devoid of any facts to support a claim that Brothers
of Mercy’s conduct evinces a reckless disregard for the rights of others or smacks of intentional
wrongdoing – especially since it was not even negligent. Consequently, the allegations of gross
negligence asserted in Plaintiff’s Bill of Particulars must be dismissed.
B. Likewise, allegations as to violation of any federal statutes must be dismissed
because plaintiff never specifies which statutes were allegedly violated
62. Plaintiff claims that her failure to allege violations of a specific federal code is
not fatal to her claim because “it is well known that Article 28 of the New York Public Health
Law and Part 415 of Title 10 of the New York Codes…largely mirror federal equivalents,
including the regulations found in part 481 of Title 42 of the Code of Federal Regulations.”
Marques Aff., ¶ 84.
63. It should be noted that a search for 42 CFR 481 shows that part 481 is
“reserved” (i.e. contains no regulations).
64. Further, it is somewhat disingenuous for Plaintiff to claim because she already
enumerated multiple state regulations claimed to be violated, she does not have to enumerate
any specific federal regulations because it “would serve only to amplify and elaborate upon
facts and theories already set forth in this matter.” Marques Aff., ¶ 85. The whole point of a
bill of particulars to is amplify and elaborate on the claims so the opposing party can prepare
to defend against those claims.
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65. Based on the above, the vague allegations as to violation of "federal statutes"
must be dismissed.
VI. Plaintiff's Arguments as to proof submitted "upon information and belief'' is
inaccurate
66. As set forth above, Cynthia Shafer is an employee of Brothers of Mercy and her
affidavit in support of Brothers of Mercy's motion for summary judgment was provided in
her capacity as an employee, not as an expert witness .
67. Further, none of the three statements Plaintiff quotes from Cynthia Shafer are
referenced in the initial attorney affirmation as specific proof Brothers of Mercy are entitled
to summary judgment, so they cannot be said to be "relied upon."
68. Without conceding the validity of Plaintiff's argument that any statements
made "upon information and belief' should be disregarded, it should be noted that Plaintiff
asks for any statements made by Teresa Dillsworth "upon information and belief' to be
disregarded. However, Plaintiff also states that "Defendants ... admit and acknowledge that
Cheryl J. Klyczk (occupational therapist) was employed by Brothers of Mercy" (Marques
Aff., ~ 57), and cites to one of the very statements by Dillsworth that Plaintiff argues should
not be considered. Plaintiff cannot have it both ways and pick and choose only the portions
she views as favorable to her to be considered for probative value.
69. Wherefore, Brothers of Mercy respectfully requests an Order from this Court
dismissing Plaintiff's complaint in its entirety, together with costs and disbursements of this
motion, and for such other and further relief as this Court deems just and proper.
February 19, 2020
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