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Court Orders Plaintiff to Amend Complaint

On October 28, 2001, plaintiff’s decedent, LM, fell in his apartment, which was located in the Narragansett Hotel, a residential hotel in New York City. A neighbor heard yelling coming from the apartment and called an ambulance. According to the Ambulance Call Report prepared by the EMS workers, he was found “lying in apt, full of feces.” The report indicated that he had fallen down in his apartment and was, inter alia, having difficulty breathing. It was also noted in the report that he had an elevated heart rate of 132 beats per minute, while in the care of the EMS workers. In addition to the information relating to his medical condition, the Ambulance Call Report contained LM’s address, date of birth and social security number. The Ambulance Call Report also listed JT, a close friend of LM, as his next of kin, and contained Ms. JT’s telephone number.
LM was taken by ambulance to the emergency room at Mount Sinai Hospital at approximately 1:55 p.m. The Ambulance Call Report, prepared by the EMS workers, was received by a staff member at Mount Sinai, who signed the report as the Hospital Receiving Agent. An Emergency Department, Patient Registration Form was prepared, at some point, after LM’s arrival at the hospital, and contained the same pedigree information as the Ambulance Call Report, i.e., address, date of birth and social security number. Mount Sinai’s Patient Registration Form also listed JT as LM’s next of kin, and contained her telephone number. A triage assessment was performed, and the records indicate that, at that time, LM was still experiencing shortness of breath and was noted to, among other things, have an elevated heart rate. The triage records state that LM was disheveled in appearance and full of feces. It appears that no treatment was administered in triage. Notwithstanding, he was given acute priority, and sent to an acute area of the emergency department. It is noted that the triage records also contain LM’s pedigree information.
LM was assessed by Dr. JJB, Jr., an attending physician, in the emergency room at Mount Sinai. He was found to be in respiratory distress, with edema, which is the swelling of the extremities. The emergency room records indicate that LM’s heart rate was a very high 160 beats per minute, at the time. Dr. JJB testified at his deposition that his preliminary diagnosis was congestive heart failure, as a result of, or a cause of, arterial fibrillation. Dr. JJB also entertained the possibility of pneumonia and heart ischemia. He considered LM to be a critically ill patient. Dr. JJB testified that he put a nonrebreather face mask on LM with the highest concentration of oxygen. The use of the nonrebreather face mask was documented in the emergency room records. According to Dr. JJB, he administered Diltiazem to reduce LM’s heart rate and “would typically” administer a dose of Lasix to get rid of extra body fluid. Dr. JJB further testified that he would have probably given LM an antibiotic in case there was pneumonia. Notwithstanding Dr. JJB testimony with respect to the administering of the aforementioned treatments, with the exception of the use of the nonrebreather mask, the emergency room records did not indicate that LM was provided with any of the other treatments discussed by Dr. JJB at his deposition. Additionally, Dr. JJB testified that nurses at Mount Sinai assisted in the emergency room treatment provided to LM, however, it does not appear that any nursing notes were generated in connection with such treatment.
LM eventually stopped breathing and became unresponsive. Dr. JJB testified that he had a vague recollection of intubating the decedent and remembered performing Advanced Cardiac Life Support. These treatments were not noted in the medical records.2 LM expired in the emergency room at Mount Sinai on October 28, 2001 at 6:20 p.m., approximately four and one-half hours after his arrival. According to Dr. JJB’ testimony, immediately following LM’s death, he made at least two attempts to contact the next of kin listed in the medical chart, i.e., JT, via telephone. Dr. JJB was unable to reach Ms. JT, stating that the telephone “kept ringing” and “there was no recording or ability to leave a message.” It appears that no written record was created with respect to Dr. JJB’ attempt to contact Ms. JT. Unable to contact LM’s next of kin, Dr. JJB informed other personnel at Mount Sinai who, according to Dr. JJB, took over the responsibility of contacting LM’s next of kin. Dr. JJB could not remember specifically who he spoke with regarding this matter, but believes it was the charge nurse and a nursing administrator.
Mount Sinai’s rules and regulations relating to notifying a family about the death of a family member specifically sets forth that it is initially a physician’s responsibility to notify the next of kin of a patient’s death. If the physician is unable to contact the next of kin, the physician is to notify the Clinical Nurse Manager/Nursing Administrator, who is required to make further efforts to contact the next of kin by making frequent phone calls, sending a telegram, and making a request of the New York City Police Department (hereinafter “NYPD”) to visit potential residences for next of kin. If the Clinical Nurse Manager/Nursing Administrator is not successful with these aforementioned methods, and as a consequence, fails to locate a patient’s next of kin, they are responsible for contacting the NYPD Missing Person’s Unit. After the NYPD Missing Person’s Unit is contacted, a “Request for Police Investigation – Deceased Patient (RFPI) Form” must be prepared by the hospital, in triplicate. One copy of that form remains with the body, one copy is to be kept at the hospital, and the original is to be forwarded to the Receiving City Mortuary with the body, the latter copy to be returned to the NYPD when the body is released from the mortuary to a “legally designated institution.” According to an affidavit from the NYPD, submitted by plaintiff in opposition to Mount Sinai’s motion, the NYPD was never contacted by Mount Sinai to conduct any investigation into the existence and whereabouts of LM’s family, following his death. Furthermore, although the rules and regulations require the Nursing Administrator, at the appropriate care center, to maintain a log detailing the attempts made to contact a patient’s next of kin, there are no records indicating that any efforts were made by anyone at Mount Sinai to contact Ms. JT or to locate LM’s family.
Following his death, a Certificate of Death form was completed by an emergency room physician other than Dr. JJB.3 LM was then brought to the Mount Sinai morgue. Since the staff at Mount Sinai was unable to locate LM’s next of kin, he was characterized as an “unclaimed body.” According to the testimony of Calvin Keys, an employee of the Mount Sinai morgue, once the morgue is in possession of an unclaimed body, it becomes the responsibility of the morgue staff at Mount Sinai to complete the “Personal Particulars” portion of the Certificate of Death; typically this is completed by a funeral director. Notwithstanding the fact that the Mount Sinai records relating to LM contained his pedigree information, the “Personal Particulars” relating to the decedent, including but not limited to his address, date of birth and social security number, were all “unknown” according to the Certificate of Death. The Certificate of Death also indicated that the “Name of Informant” was “unknown” and that LM was to be buried in the City Cemetery.
In addition to the rules set forth above, Mount Sinai has specific rules and regulations in place that relate to the disposition of bodies with no next of kin. Where a body remains in the hospital morgue “unclaimed” for a period of 72 hours, the Morgue Supervisor is required to notify the Administrator of Pathology. The Administrator of Pathology is then required to communicate with the Care Center Director and complete a decedent follow-up form and forward it to the Care Center Director. Thereafter, under the direction of the Care Center Director, a decision is to be made with respect to the disposition of the body. If further efforts are needed to locate next of kin, the body is to be retained in the morgue at Mount Sinai while this is done. The hospital’s rules and regulations further state that if “after 42 hours it is definitely established that there is no next of kin and every source has been exhausted in trying to ascertain this information the Superintendent’s Permission form is completed by the Care Center Director, authorizing a Hospital Post Mortem Examination after which the body is transferred to the City Mortuary.” In the instant action it appears that Mount Sinai did not abide by its own rules and regulations.
The certificate of death was filed with New York City Department of Health (hereinafter “DOH”) on November 21, 2001, setting forth that LM passed away in the emergency room at Mount Sinai Hospital on October 28, 2001. Again, the “Personal Particulars” relating to the decedent, according to the certificate of death, were all “unknown.” DOH issued a burial permit in November of 2001 and on November 28, 2001, LM’s body was transferred to the City Morgue, which at that time was located at Bellevue Hospital and operated by New York City Health and Hospitals Corporation (hereinafter “NYCHHC”). While at the City Morgue, students of Nassau County Community College’s Mortuary Science Department were permitted to practice embalming on LM. It does not appear that any efforts were made at any time by the City Morgue to verify that the body of LM was “unclaimed.” On or about December 20, 2001, the body of LM was transferred from the City Morgue to the City Cemetery located on Hart’s Island, which is commonly referred to as Potter’s Field. The City Cemetery is operated by New York City Department of Corrections (hereinafter “DOC”). LM was then buried in a large burial plot by inmates of Riker’s Island with approximately 150 other unclaimed bodies. Admittedly, DOC would not have made any efforts to determine or contact the next of kin of an unclaimed body.
Thereafter, on or about February 2, 2002, LM’s niece, DK, a New York State Police Trooper, received a telephone message from the manager of the Narragansett Hotel, informing her that her uncle had passed away. It appears that the staff at the Narragansett Hotel began to grow concerned when they had not seen LM for quite some time, and began making inquiries at Mount Sinai. Upon learning of LM’s passing, a hotel staff member was able to contact Ms. DK, calling a telephone number contained in the hotel’s records. After contacting the Narragansett Hotel, Ms. DK and her father, JM, who was LM’s brother, were informed by somebody on the hotel staff that LM was taken to Mount Sinai Hospital on October 28, 2001, and passed away, on that date. JT was contacted by LM’s family after they learned of his death. This was when she first became aware of his death. Ms. JT advised them that she was never called by Mount Sinai informing her that LM had passed away.
After learning that LM had passed away, JM made inquiries with Mount Sinai Hospital and the City Morgue to find out where his brother had been buried. According to JM’s deposition testimony, during his initial visit to Mount Sinai he was told by LG, a Mount Sinai employee, that she could not provide him with details about his brother’s death or advise him as to where the body was located at that time, because the pertinent hospital records had been “signed out” by another employee, ID, who was on vacation, at that time. JM further testified, at his deposition, the following day he learned that Ms. ID was not on vacation and concluded that Ms. LG intentionally lied to him in order to conceal Mount Sinai’s wrongdoing. JM eventually learned that his brother had been buried at Potter’s Field. However, he stated that he was encountering great difficulty when he initially attempted to locate his brothers remains, and it was not until the media began assisting him, in the search, did he learn the exact whereabouts of the body. LM’s body was exhumed and identified by his brother, JM. His family was then able to have a wake, and a funeral for Leonard, as well as a burial in a family plot in a cemetery located in his hometown of Binghamton, New York.
Plaintiff, JM, served a notice of claim upon defendants on or about May 2, 2002. Thereafter, on or about October 21, 2002, plaintiff commenced the instant action with the filing of a summons and complaint. The complaint asserts causes of actions against all defendants for medical malpractice, loss of sepulcher, fraudulent concealment and punitive damages. Discovery has been completed in this action, and it is now trial ready. Defendants New York City Health and Hospitals Corporation s/h/a Bellevue Hospital and Health and Hospitals Corporation and the City of New York s/h/a New York City Police Department, New York City Department of Corrections and New York City Department of Health respectively move to dismiss the action as asserted against them, pursuant to CPLR 3211 and CPLR 3212;and by separate motion, defendant Mount Sinai Hospital moves to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim, pursuant to CPLR 3016, CPLR 3211(a)(7) and CPLR 3212. Additionally, plaintiff presently moves for leave to amend the complaint, pursuant to CPLR 3025(b) and (c).
Based on the foregoing, it is hereby ordered that the motion by defendant New York City Health and Hospitals Corporation s/h/a Bellevue Hospital and Health and Hospitals Corporation to dismiss the action as asserted against it, pursuant to CPLR 3211(a)(7) and CPLR 3212, is denied to the extent that it seeks dismissal of the sepulcher cause of action, and granted in all other respects; and it is further
Ordered that the motion by defendant Mount Sinai Hospital to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim, pursuant to CPLR 3016, CPLR 3211(a)(7) and CPLR 3212, is granted only with respect to the fraudulent concealment claim asserted against it in the complaint, and denied in all other respects; and it is further Ordered that the motion by the City of New York s/h/a New York City Police Department, New York City Department of Corrections and New York City Department of Health to dismiss the action as asserted against it, pursuant to CPLR 3211 and CPLR 3212, is granted in its entirety; and it is further Ordered that the motion by plaintiff for leave to amend the complaint, pursuant to CPLR 3025(b) and (c), is granted only to the extent that he may assert a cause of action for gross negligence against Mount Sinai in connection with the alleged acts of medical malpractice, and seek punitive damages in connection with that cause of action.
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