M&A wins summary judgment again with expert affidavit in nursing home case
In Estate of Cecily McArthur v. Nassau Extended Care Center, a Nassau Supreme Court Judge granted M&A’s client, NECC, summary judgment dismissing all of plaintiff’s negligence and nursing home malpractice claims relating to plaintiff’s hip and femur fractures and dismissing plaintiff’s Article 28 Public Health Law cause of action, including the punitive damages and attorney’s fees claims relating to those injuries.
Accepting M&A’s statutory arguments, the court declared NECC sustained its burden to show no liability under Article 28 of the Public Health Law because NECC’s conduct did not rise to the level of a violation under the statute.
As to the nursing home malpractice and negligence claims, the court found NECC established, through its expert, no deviations in the standard of therapeutic care and treatment. The court then held plaintiff failed to challenge, let alone file competent evidence, to create triable questions of fact concerning whether NECC staff improperly supervised/monitored the co-defendant occupational therapy assistant’s therapy.