Kitt v. Okonta ( 2016 )

Kitt v Okonta (2016 NY Slip Op 06955)

Kitt v Okonta

2016 NY Slip Op 06955

Decided on October 25, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2016
Tom, J.P., Mazzarelli, Richter, Manzanet-Daniels, Webber, JJ.

2009 300414/10

[*1]Patrina Kitt, as Administratrix of the Index Estate of Chmaar Kitt Scott, deceased, Plaintiff-Respondent,

v

Benjamin Okonta, M.D., et al., Defendants, Brookhaven Rehabilitation & Health Care Center, Defendant-Appellant.

Caitlin Robin & Associates, PLLC, New York (Caitlin Robin of counsel), for appellant.

Wallace & Associates, P.C., Brooklyn (Larry Wallace of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 30, 2015, which, to the extent appealed from, denied defendant Brookhaven Rehabilitation & Health Care Center's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Although Brookhaven made a prima facie showing that it did not depart from good and accepted medical practices (see Lopez v Gramuglia, 133 AD3d 424, 425 [1st Dept 2015]; Matos v Khan, 119 AD3d 909, 910 [2d Dept 2014]), the report of plaintiff's medical expert raised triable issues of fact as to whether there was a departure and whether any departure was a proximate cause of decedent's death. In particular, plaintiff's expert opined that decedent presented to Brookhaven with symptoms and complaints indicative of a high risk for deep vein thrombosis and a pulmonary embolism (DVT/PE), which was not ruled out by testing done at a prior medical facility, that Brookhaven should have performed a diagnostic workup for DVT/PE and provided prophylactic anticoagulation treatment, and that it unreasonably delayed in sending decedent to the hospital when he was found on the floor vomiting 11 days after admission (see Bartholomew v Itzkovitz, 119 AD3d 411, 415 [1st Dept 2014]; Jiminian v St. Barnabas Hosp., 84 AD3d 647 [1st Dept 2011]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2016

CLERK