Giandana v. Providence Rest Nursing Home

OPINION OF THE COURT Mazzarelli, J. Anna E. Demuth, 91 years old at the time and now deceased, was a patient at the Providence Rest Nursing Home. At some time between 11:00 p.m. on Monday, October 25 and 7:00 a.m. on Tuesday, October 26, 1999, she sustained a fractured femur and multiple bruises to her extremities. These injuries allegedly occurred either while she was being transferred from her bed to a wheelchair, or from the wheelchair to the shower. An “Accountability Book” was maintained by Providence Rest. This book contained patient charts with details of the specific treatment protocol for each of the residents. Ms. Demuth’s chart indicates that she was considered a “high risk” patient, who required the highest level of assistance. She had “impaired mobility, balance, unstable gait, CVA,[1] and Parkinson’s disease.” A box was checked on her chart in the Accountability Book indicating that “two people and/or a lifter”2 were required any time she was moved or transferred from one place to another. Monica English was a licensed practical nurse employed by defendant Providence Rest. She was working the 11:00 p.m to 7:00 a.m. shift on the day Ms. Demuth was injured. Becky Akosah, a certified nurse’s assistant employed by defendant Health — 128 — Care Professionals, Inc., was also on duty that morning and she had been assigned to assist Ms. Demuth. Veronica Douglas, LPN, Nancy Fitzgerald, RN, and Eleanor Flanagan, RN were three nurses employed by Providence Rest who participated in the nursing home investigation of Ms. Demuth’s injury. Ms. Fitzgerald also prepared a report of the incident for defendant Providence Rest. Plaintiff commenced this action against Providence Rest and Health Care Professionals, Inc. The nursing home then brought a third-party action against Ms. Akosah and Ramar Services. Defendant Health Care Professionals was the agency through which Ms. Akosah and other nurses aides were provided to Providence Rest. Ramar Services is the payroll company for Health Care Professionals. Plaintiff moved for summary judgment in the main action, arguing that the nursing home was negligent for violating its own protocol as set forth in its Accountability Book. Specifically, plaintiff asserted that Providence Rest was negligent by allowing Akosah to move Ms. Demuth without the necessary assistance, and that this negligence was the proximate cause of her injuries. Plaintiff presented a New York State Department of Health (DOH) report, signed by Eleanor Flanagan. That report stated: “On Tuesday, October 26, 1999, LPN Veronica Douglas came on duty at 7:00 am and heard [Ms. Demuth] calling for the nurse. Ms. Douglas responded immediately. The resident was in her wheelchair and stated that she had fallen. The CNA [Akosah] was transferring her from bed to chair and had fallen on top of her. The resident was now experiencing severe pain. Ms. Douglas notified the Day Clinical Coordinator and an investigation was begun . . . . My findings of the event in the fall of resident Anna Demuth, who sustained a fracture of the femur and multiple bruises to the upper and lower right extremities, are that Becky Akosah, who was assigned to the resident and showered her, dropped her. The care of Anna Demuth by CNA Becky Akosah resulted in negligence to the resident.” Plaintiff also quoted a statement by Ms. Fitzgerald, who made a “nurse’s bedside report” on the date of the incident, and who prepared a report for Providence Rest in connection with its investigation of the incident. In both documents, Fitzgerald recounts: — 129 — “I was called to 2GM by Ms. V Douglas. She came into the Nursing Office and stated, ‘Ms. Fitzgerald, you have to come to 2GM to hear what Ms. Demuth is saying. She said she thinks her leg is broken.’ I went to 2GM immediately and Ms. Demuth was sitting in [a] wheel chair in [the] hallway, just beyond the desk. She told me when I asked her what was wrong that she thought her leg was broken and I asked what happened, she stated I have so much pain in my right leg. The girl fell on me, she pointed to the area of her leg which she stated was so painful. The other nurses, Ms. Douglas, Ms. English, assisted me to get the resident out of the wheel chair back in her bed with very easy careful movements.” In support of the motion, plaintiff provided the original and amended complaints and answers. She also submitted evidence which had been collected as part of Providence Rest’s investigation of the incident. On one of its forms, Providence Rest had asked Ms. Akosah to respond to Ms. Demuth’s allegation that “She fell on [Demuth] when trying to take her out of bed.” Ms. Akosah described the incident as follows: “I had to give her shower [sic] so I went for the chair and put it right to the end of the bed on the left side. I asked her whether she could stand and she replied yes so I swung her on the bed into a sitting position and went to get her head and shoulders. I asked her to hold on to my waist and put [illegible] in between hers. But then she told me she couldn’t make it to the chair so I swung back on the bed to get help to put her on the chair. Then, the nurse came in and I asked her to help me put her in the chair of which we did. But I realize there was blood on the sheet the nurse ask me where that was from. I checked the chair and realize the blood was from the elbow. I took her to the shower room and gave her a shower. Then I asked her to hold to onto [sic] the rail to get the shower chair of [sic] and put her wheelchair. She complained of pain in the hip I asked her to relax so that we tried again. The second time she stood and I put her in the wheelchair. She complained of pain in her hip when I was trying to put on the chair I and [illegible] to get the doctor.” A DOH report sent to Providence Rest and Ms. Akosah was also — 130 — annexed to plaintiffs motion. In that report, an attorney at DOH concluded that Ms. Akosah had violated Public Health Law § 2803-d.3 Plaintiff also submitted the deposition testimony of Ms. English. English testified that when Ms. Akosah came on duty at 6:00 a.m., she gave Akosah those charts from the Accountability Book pertaining to the patients to which Akosah had been assigned. One of those charts contained instructions for Ms. Demuth’s care. Ms. English also stated that she told Akosah that if she had any questions, she should ask for help. English related that: “At approximately 7:15 on that morning, incoming nurse reported to me that Ms. Demuth had called her and told her that someone had dropped her and fell on top of her and asked me if I knew anything about it. My reply was ‘No, that was not reported to me’ .... [W]e assist[ed] [Demuth] back to bed. She was complaining of pain in her right hip.” Also included by plaintiff in support of the motion was a copy of Ms. Demuth’s chart from the Accountability Book. In opposition to summary judgment, Providence Rest submitted a staffing agreement between the nursing home and Health Care Professionals (HCP) and the deposition testimony of Vicki Ragin, an employee of HCP These were to support its argument that Ms. Akosah was not an employee of the nursing home, and thus not someone for whose actions it could be held vicariously liable. These submissions established that HCP was an employment agency which placed individuals at nursing homes such as Providence Rest, and that it had sent Ms. Akosah to Providence Rest. Providence Rest also argued that Ms. Akosah had disregarded the nursing home’s rules. It relied upon its Accountability Book, the DOH report, and Ms. English’s deposition testimony to support this claim. The nursing home also referenced the Flanagan report and it submitted a copy of the third-party complaint and answer. Providence Rest argued that there was insufficient evidence that it violated any internal rules. Alternatively, it claimed that if any alleged violation had occurred, breach of an internal guideline constituted only some evidence of negligence, not negligence per se. The nursing home asserted that because Akosah was an independent contractor, it was not liable for her actions. — 131 — Ms. Akosah also interposed an answer to plaintiffs motion for summary judgment against Providence Rest. She submitted her attorney’s affirmation, in which her counsel stated that she is familiar with the facts and circumstances surrounding the action “by virtue of personal knowledge.” However, counsel never explained how she gained this “personal knowledge.” Her counsel also disavowed both the authenticity and the truth of Ms. Akosah’s statement submitted by plaintiff. Counsel stated that there are issues of fact as to the happening of the accident, without further specification. Ms. Akosah herself did not submit any affidavit detailing her recollection of the incident or posing any explanation for Ms. Demuth’s injuries. Akosah’s counsel also argued that most of plaintiffs submissions were inadmissible hearsay. She asserted that if Akosah’s statement made in the nursing home’s investigation of the incident were considered a “party admission” against the nursing home, there was nothing in the statement that implicated Ms. Akosah personally. The IAS court granted plaintiffs motion for summary judgment on liability against the nursing home. We affirm. The only response to this appeal has come from Ms. Akosah. While Providence Rest filed a notice of appeal, it did not perfect the appeal and did not submit a brief. Becky Akosah, here a third-party defendant, is an aggrieved party, and under CPLR 1008, she has a right to appeal. Ms. Akosah also has the right to preserve any claims which could affect her liability in the third-party action. As the proponent of the motion for summary judgment, plaintiff has the burden of presenting evidence in admissible form which establishes the defendant’s negligence as a matter of law (CPLR 3212 [b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Upon meeting this burden, an opposing party may still defeat the motion with proof “sufficient to require a trial of any issue of fact” (CPLR 3212 [b]). All the court is to do at this stage is to discern whether any material issues of fact exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Applying these principles, the IAS court correctly determined that the admissible evidence before it conclusively established that Providence Rest was negligent because it allowed a high-risk patient to be transferred without the proper assistance and in contravention of its own requirements. The only inference that can be drawn from the admissible submissions on the motion is that Akosah attempted to move Ms. Demuth on her own — 132 — and that the nursing home was negligent for allowing this to happen (Reardon v Presbyterian Hosp. in City of N.Y., 292 AD2d 235 [2002]). Moreover, neither Providence Rest nor Akosah raised any triable issue of material fact as to whether or not Ms. Demuth was cared for properly. No party has offered any version of the facts which would support an inference that Providence Rest was not negligent (compare La Plante v State of New York, 31 AD2d 570, 571 [1968], affd 28 NY2d 575 [1971] [the inference that the state hospital had been negligent for failing to provide bedside guardrails was not the only inference which could be drawn from the record; “it appear[ed] equally as probable that decedent slipped or fell on his own without any fault on the part of the State”]). The argument Ms. Akosah raises, adopted by the dissent, that the order appealed should be reversed because plaintiff’s submissions were largely inadmissible hearsay is misplaced and based on an inaccurate reading of the record. Some of the nurses’ statements were not proof in admissible form. Other nurses’ accounts also contained inadmissible collateral references to what third parties said and what Ms. Demuth told them. However, the IAS court did not rely on inadmissible hearsay in granting plaintiffs motion. There was ample admissible evidence supporting its finding that the nursing home was negligent as a matter of law. For example, plaintiff submitted a report prepared by Ms. Flanagan, the Director of Nursing at Providence Rest, and filed with the DOH. Ms. Flanagan made statements in the report which inculpated the nursing home, her employer, for allowing the transfer of Ms. Demuth in an unsafe manner. Accordingly, her statements in the report were admissible under the “speaking agent” exception to the hearsay rule. This is a long- and well-recognized exception for statements made by agents of an employer, which are inculpatory to the employer. The exception requires that: (1) the making of the statement is an activity within the scope of the agent’s authority; and (2) the statements were made in the course of business or transaction for which the agent was employed (see Loschiavo v Port Auth. of N.Y. & N.J., 58 NY2d 1040, 1041 [1983]; Candela v City of New York, 8 AD3d 45, 47 [2004]; and see Navedo v 250 Willis Ave. Supermarket, 290 AD2d 246 [2002]). Both of these factors are present here. Ms. Flanagan was assigned by Providence Rest to prepare the report for a state agency, and in doing so she interviewed Veronica Douglas (who assisted Ms. Demuth after — 133 — she was injured) and a number of other nurses. As a result of her injuries, Flanagan compiled her report. In the report she stated: “My findings of the event in the fall of resident Anna Demuth, who sustained a fracture of the femur and multiple bruises to the upper and lower right extremities, are that Becky Akosah, who was assigned to the resident and showered her, dropped her. The care of Anna Demuth by CNA Becky Akosah resulted in negligence to the resident.” The dissent challenges Ms. Flanagan’s report, characterizing it as being based upon what she “heard,” and cites Brusca v El Al Israel Airlines (75 AD2d 798, 800 [1980]) to support its position. However, the facts and holding in Brusca support a finding that the statements in the Flanagan report are admissible “admissions.” Brusca involved a construction accident. At trial the foreman testified “that he had had a conversation with a police officer at the scene” (id. at 799). When asked whether he remembered giving specific quoted details to the officer, the foreman stated that he did not remember stating those facts. Plaintiff then called the police officer to the stand and elicited that the foreman made the quoted statements. The court then gave a limiting instruction that the quoted statements could not be considered as proof of any fact. On appeal, plaintiff argued that it was error for the court to have precluded the jury from considering the quoted details of the accident for their truth. The Second Department agreed, stating: “The fact that a particular admission is apparently not based on personal knowledge of the occurrence described, but rather only upon information gleaned from others, is no bar to its admission into evidence. . . . ‘Since an admission of a party made out of court is in itself hearsay, receivable in evidence under a definitely recognized exception to the hearsay rule, its competency or relevancy cannot be affected by the question whether the party making it had personal knowledge or merely information as to the fact admitted. In other words the law does not distinguish for the purposes of admissibility and relevancy between hearsay statements based on knowledge and hearsay statements based on other — 134 — hearsay.’ Only if [the foreman’s] alleged statement had been to the effect that he heard that the accident occurred in the manner he described, would the evidence have been inadmissible, ‘as then it would only have amounted to an admission that he had heard the statement which he repeated and not to an admission of the facts included in it. That would have been in no sense an admission of any fact pertinent to the issue, but a mere admission of what he had heard without adoption or indorsement’ ” (Brusca, 75 AD2d at 800 [initial emphasis supplied and citations omitted]). Here, Ms. Flanagan, the supervising nurse at Providence Rest, investigated Ms. Demuth’s accident. She spoke with nurses on duty on the morning of the incident, some of whom had personally attended to Ms. Demuth. Flanagan based her conclusions upon those interviews, and from Ms. Akosah’s own acknowledgment that she was moving Ms. Demuth alone. Ms. Flanagan’s conclusions constituted an admission that Ms. Demuth had not been transferred safely, and in violation of hospital protocol. Her report is uncontested, and it is not “unindorsed” testimony as to what she heard. Thus, under Brusca, it is admissible, and constitutes an “admission” that her employer had not properly cared for Ms. Demuth and violated the protocol set forth in its Accountability Book. Providence Rest’s negligence flows from its failure to ensure that its patient received the proper level of care, i.e., being safely transferred by more than one person. Nurse Fitzgerald also prepared a written statement. While, as noted, some of the information collected by Nurse Fitzgerald was hearsay, her report was also part of the nursing home’s investigation and was properly considered in support of the summary judgment motion as an “admission” that her employer, the nursing home, had breached its rules (Loschiavo, 58 NY2d at 1041; Candela, 8 AD 3d at 47; Navedo, 290 AD2d at 247), and been negligent in its care of Ms. Demuth. A substantial portion of the deposition testimony of Ms. English, Ms. Akosah’s supervisor on the date of the incident, was admissible direct evidence which strongly inculpated Providence Rest (CPLR 3117 [a]). English testified that she supervised Akosah on the morning of the incident. She recounted giving Akosah the Accountability Book, telling her that if she had any questions she should feel free to ask them. Although English did not know exactly how the accident happened, she testified — 135 — that after the incident she and Nurse Douglas moved Ms. Demuth from the wheelchair back into bed. This testimony, along with Ms. Demuth’s chart from the nursing home’s Accountability Book, conclusively established the nursing home’s negligence. There is no question that Ms. Demuth’s condition, as detailed in the Accountability Book, required the nursing home to ensure that Ms. Demuth be transferred by two people “and/or a lifter.” The only inference that can be drawn from the parties’ submissions was that Ms. Demuth was injured while being moved in an unsafe manner and in violation of the nursing home’s own protocol. That Ms. Akosah’s statement does not detail exactly how the accident happened is not determinative as to the nursing home’s negligence. In her statement, which was legitimate for the court’s consideration as an “admission against interest” (58 NY Jur 2d, Evidence and Witnesses §§ 275, 341), Ms. Akosah concedes that she was transferring Ms. Demuth alone. This constituted a breach of the nursing home’s duty to provide Ms. Demuth, a high-risk patient, with the designated level of care. The dissent misperceives the scope of our inquiry on this appeal. We cannot presuppose that the existence of a third-party complaint had an effect upon the motion court’s determination of plaintiffs motion against Providence Rest. Further, we must decide this appeal based upon the record before us, and not upon speculation as to the effect our decision may have on the third-party action, which is still in the early stages of discovery. The dissent states that “viewed solely as a motion for summary judgment against Akosah, the granting of the motion was improper.” This is curious, given that there has been no motion for summary judgment against Akosah; the only motion was for summary judgment against defendant Providence Rest. On this appeal we are determining whether the motion court properly concluded that there was sufficient evidence to establish that Providence Rest was negligent as a matter of law. The record supports the motion court’s determination on this question. The nursing home’s negligence stems from the fact that the patient was injured while being moved/transferred by one person, in an unsafe manner, and in contravention of the requirements spelled out in Providence Rest’s own Accountability Book. No one, including Ms. Akosah, contests the facts which establish Providence Rest’s liability as a matter of law. On the issue of whether the third-party defendant’s rights were compromised, it bears repeating that while the only issue — 136 — before the court was the nursing home’s alleged negligence, Ms. Akosah did appear to oppose plaintiff’s motion. Her counsel declared that Ms. Akosah did not admit to the facts contained in “the statement allegedly written by her,” but Akosah did not provide any alternate explanation of what transpired while the decedent was in her care. This may have been a strategic decision, given that the third-party action was in the preliminary stages of discovery. However, Ms. Akosah did have an opportunity to state, if true, that she was working with another person, and to explain, if she had relevant knowledge, how the decedent was injured. Finally, the dissent incorrectly concludes that evidence admitted on the present motion was admitted against Ms. Akosah. Ms. Akosah is not a party to the main action and her liability was not at issue in the order appealed. Further, Ms. Akosah’s rights in the third-party action have not been irreparably compromised by our affirmance of plaintiffs motion for summary judgment against Providence Rest. Ms. Akosah will have the opportunity to conduct discovery and engage in motion practice with respect to the third-party claim. She also will have the opportunity to present her version of the facts, and to counter any admissible allegations of her negligence. Her liability is not inextricably tied to a finding that the nursing home was negligent for not caring properly for Ms. Demuth, in breach of its own protocol regarding the level of assistance required for Ms. Demuth’s transfer. However, it is not for this Court to surmise as to issues outside the record presently before us. Accordingly, given that plaintiff submitted sufficient admissible evidence to establish Providence Rest’s liability as a matter of law, and the opponents did not come forward with evidence raising a triable issue of fact, the court properly granted plaintiffs motion. Accordingly, the order of the Supreme Court, Bronx County (Anne E. Targum, J.), entered August 11, 2004, which granted plaintiffs motion for partial summary judgment on the issue of liability against defendant Providence Rest Nursing Home, should be affirmed, without costs. Footnotes [1] This abbreviation stands for cerebral vascular accident or stroke. [2] The other three levels of patient transfer are: (1) independent; (2) intermittent supervision; and (3) one person assistance. [3] This statutory section is entitled “Reporting abuses of persons receiving care or services in residential health care facilities.” It requires designated individuals to report incidents of abuse to DOH.