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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF SUFFOLK------------------------ -------------------x

BONNIE S. LOVITTS, as THE Index No.: 610152/2015

ADMINISTRATOR of the ESTATE OF

PHYLLIS JOAN LOVITTS, AFFIRMATION IN SUPPORT

Plaintiff,

- against -

MOHAMMED JAHANGIR ALAM, M.D. and

GURWIN JEWISH NURSING and

REHABILITATION CENTER,

Defendant(s).---- --------------------------------------------------X

Ronald Mann, M.D., a physician duly licensed to practice medicine in the State of New

York, affirms the following to be true, under penalty of perjury:

1. I am a physician duly licensed to practice medicine in the State of New York.

I graduated from the University of Pennsylvania School of Medicine and obtained my

medical degree in 1980. Thereafter, I completed a residency in orthopedics and surgery at

Mount Sinai Medical Center from 1980 to 1985. I was also a Fellow of Orthopedic Surgery

at the Hospital for Special Surgery from 1985 to 1986. I am Board Certified in orthopedic

surgery. Since 1986, I have been in private practice as an orthopedic surgeon and on the

staff for Northern Westchester Hospital.

2. Based upon my training, experience and knowledge, I am fully familiar with

the issues and standards of care relevant to Ms. Lovitts. I have served elderly patients as

an orthopedic surgeon throughout my career, both diagnosing and treating fractures,

including intertrochanteric fractures. I have treated patients in hospitals, rehabilitation

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centers, and long-term care facilities and I am fully familiar with the relevant standards of

care for the care and treatment of patients in each type of setting and appropriate safety

measures for patients who are at risk for falls. I am fully aware of the various mechanisms

of injury for intertrochanteric fractures, such as weak and fragile bones, osteoporosis,

osteoarthritis, vitamin D deficiency, and trauma. Furthermore, I am fully familiar with

reviewing and interpreting radiological imaging studies for pre-operative patients and

therefore I am familiar with how intertrochanteric fractures present radiologically. As such,

I am familiar with the relevant issues and standards of care relevant to Ms. Lovitts.

3. In preparation of this affirmation, I reviewed the pleadings, Verified Bill of

Particulars, the Affidavit of Catherine Vento, R.N., the medical records of Gurwin Jewish

Nursing and Rehabilitation Center, Huntington Hospital, and Carillon Nursing and

Rehabilitation Center, and the depositions of all parties. I submit this Affirmation in

support of the motion on behalf of Gurwin Jewish Nursing and Rehabilitation Center

(hereinafter "Gurwin") and Dr. Mohammed Alam. All of my opinions are made within a

reasonable degree of medical certainty.

4. Based upon my review of the aforementioned materials, as well as my

education, training and experience in the field of orthopedic surgery, it is my opinion within

a reasonable degree of medical certainty, that the care and treatment rendered to Phyllis

Lovitts from January 15, 2014 to March 11, 2014 by Gurwin and Dr. Mohammed Alam

did not depart from good and accepted standards of care and was not the proximate cause

of PhyllisLovitts'

alleged injuries. It is my opinion within a reasonable degree of medical

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certainty that Ms. Lovitts did not sustain an intertrochanteric fracture from a fall but rather

from normal, unavoidable activities of daily life due to her weakened state.

PERTINENT FACTS

5. Prior to her admission to Gurwin, Ms. Lovitts was hospitalized from January

11 to January 15, 2014 after she fell in her home and began complaining of right hip pain.

An X-ray of the right pelvis conducted at Huntington Hospital was unremarkable and

showed no fracture. A CT of the head showed no acute hemorrhage. Ms. Lovitts was

transferred from Huntington Hospital to Gurwin on January 15, 2014 to undergo restorative

therapy and potential long-term care placement.

6. At the time of her admission to Gurwin, Phyllis Lovitts was an 82-year-old

woman, standing4'4"

with well-documented comorbidities, including Parkinson's disease,

dementia, osteoarthritis, and a Vitamin D deficiency. Upon admission to Gurwin, Phyllis

Lovitts underwent an extensive admission observation. At that time, it was noted that she

suffered from Parkinson's disease, dementia, dizziness, hypertension, anemia, recurrent

falls, and a vitamin D deficiency. Her illnesses and history of falls rendered her wheelchair-

bound during her admission at Gurwin. However, she was able to ambulate and participate

in the toileting program with a one-person assist. Upon admission, a Fall Risk Assessment

was conducted to determine if a fall care plan was necessary. Ms. Lovitts scored"28,"

where a score over nine is at risk for falls. Concurrent with the performance of the Fall

Risk Assessment was also an Elopement Risk Assessment. This assessment aided Gurwin

in determining that Ms. Lovitts was not a risk of wandering or eloping from the facility.

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7. Based on these assessments a care plan was instituted to prevent or reduce

the chances of Ms. Lovitts falling. This care plan involved, in part, the following

interventions: maintain the bed at the lowest position; keep personal items within arm's

reach; monitor the resident every two hours for comfort and toileting rounds; provide no-

slip footwear; provide adequate lighting in Ms.Lovitts'

room to aid ambulation; keep a

call bell within reach of the bed; and place an insignia on her wheelchair and room

identifying her as being a high fall risk. Although an included recommendation of the fall

care plan, a bed and/or chair alarm was determined to not be required. This decision was

made because Ms. Lovitts was a low elopement risk, did not try to get out of bed unaided,

and because bed alarms are confusing to dementia patients. Ms.Lovitts'

daughter, Lori

Scharf's additionally testified that her mother never attempted to get up from her bed or

wheelchair unaided and always used the call bell for assistance.

8. On January 28, 2014, Ms. Lovitts was noted to have slid from her wheelchair

and was found sitting upright on the floor. She was immediately assessed as required by

the fall care plan. Her medical records indicate she experienced no head trauma, no

negative change in range of motion, and no trauma, bruising, or alteration to her skin

integrity. Gurwin then completed a post-fall report and included it as required in Ms.

Lovitts'medical record.

9. As part of her daily treatment and care plan, Ms. Lovitts was encouraged to

walk with the assistance of Gurwin staff. The distance, duration, and level of assistance

were documented in Ms.Lovitts'

walking record. Ms. Lovitts initially participated in the

therapy, but beginning February 1, 2014, Ms. Lovitts began a trend of refusing to walk. On

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February 13, 2014, she again refused to ambulate and no walking therapy was conducted.

After a few days of completing the walking therapy, she again refused to ambulate from

February 17, 2014 until February 23, 2014, at which point she ambulated 125 feet with a

one-person assist. Ms. Lovitts also did not participate in her walking therapy from February

24 until February 26, 2014, where she walked 150 feet with a one-person assist. From

February 27 until March 3, 2014, she similarly refused to walk. After completing her

walking therapy on March 3, she did not ambulate again until March 8, 2014. However,

despite not always participating in her walking therapy, according to the certified nursing

assistant records, Ms. Lovitts continued to assist with transfers and ambulate to the

bathroom with a one-person assist.

10. On March 6, 2014, the Gurwin records indicate Ms. Lovitts complained of

knee pain, described as an intermittent ache, with no indication as to whether it was the left

or right knee. Acetaminophen was administered and resolved her complaint.

11. On the morning of March 8, 2014, Jacquelyn Jones, R.N., documented that

Mercedes Martinez, CNA, reported that although Ms. Lovitts could stand on her own, she

refused to move her feet and ambulate for physical therapy. That afternoon, while Ms.

Lovitts was being toileted, the sliding bathroom door came off its track, confining decedent

to the bathroom for approximately 15 minutes. Throughout Ms.Lovitts'

confinement,

Catherine Vento, R.N., maintained direct visual contact with Ms. Lovitts through an

approximate six-inch gap, between the door and the frame. According to her affidavit, she

reassured Ms. Lovitts to calm her and told her she would be out of the bathroom very soon.

Nurse Vento also continuously instructed Ms. Lovitts to remain seated on the toilet, an

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instruction she complied with. When the door was opened, Ms. Lovitts was examined and

noted to have vitals in normal range and no signs of distress. There was no indication that

Ms. Lovitts suffered any injury during this event. At 9:05 pm, Ms. Lovitts participated in

walking therapy and ambulated 90 feet with two person assist.

12. On March 9, 2014, the Gurwin records indicate that Ms. Lovitts slept well

and did not complain of any pain or discomfort. The records also show she again refused

to walk or move her feet for therapy, but was able to weight-bear. That evening, Ms. Lovitts

was visited by her daughter. Nurse Catherine Vento, noted that at approximately 8:00 p.m.

the daughter informed her that Ms. Lovitts was complaining of pain to her left leg. After

being toileted and put to bed, Nurse Vento examined Ms. Lovitts, completed her nightly

evaluation and observed no discoloration or swelling of Ms.Lovitts'

left leg. Ms. Lovitts

also denied being in pain when asked. The CNA records during this day indicate that Ms.

Lovitts continued to assist with transfers and was ambulating to the bathroom with a one-

person assist. Dr. Alam testified that if Ms. Lovitts had an intertrochanteric fractured hip

during this time, she would not have been able to stand and bear weight on her left leg.

Similarly, Nurse Yerkes testified that Ms. Lovitts would not have been able to assist with

transfers or ambulate if she had a fracture.

13. On March 10, 2014, at 1:20 pm, CNA's documented that Ms. Lovitts was

moving in bed, transferring and toileting with one-person assist. CNA Tanisha Goldson

documented that she toileted decedent at 4:00 pm and that her daughter took her downstairs

for activities after dinner. CNA Sara Nisi assisted in putting decedent to bed that night as

Ms. Goldson was on break. CNA Nisi observed that Ms.Lovitts'

left leg was unremarkable

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and not bruised. Additionally, CNA Nisi stated that she was able to toilet Ms. Lovitts and

place her in bed, without incident. The CNA records also corroborate that Ms. Lovitts

transferred and was toileted with one-person assist.

14. On the morning of March 11, 2014, at 6:10 am, Ms. Lovitts was given her

Protonix. She was noted to be in no distress and she made no complaints at that time. At

8:00 a.m., Diana Hill, CNA, brought Ms. Lovitts breakfast. At that time, Ms. Lovitts did

not voice any complaints of pain or discomfort. However, at 9:00 a.m., when CNA Hill

returned to take Ms. Lovitts for her shower, she observed swelling and bruising to the left

thigh. She immediately reported her findings to Nurse Yerkes, who came to evaluate Ms.

Lovitts. The Gurwin records indicate that Nurse Yerkes noted Ms. Lovitts had swelling

and bruising of the left thigh with decreased range of motion. However, Ms. Lovitts did

not remember injuring her leg and denied falling. Nurse Yerkes further testified the bruise

was oval-shaped, measured approximately twelve inches long by six inches wide, covered

the Ms.Lovitts'

thigh from knee to hamstring, and was purple in color. Nurse Yerkes

testified that in her opinion within a reasonable degree of nursing certainty that the bruise's

lack of yellowing evidenced an injury existing for approximately twelve hours or less.

Nurse Yerkes also testified that the swelling appeared to be acute tissue swelling, compared

to pitting edema. Dr. Alam was then notified, and an x-ray of the leg was ordered that

showed a displaced left proximal femur fracture. Nurse Yerkes testified that in her

experience, patients with weak bones can suffer from spontaneous fractures or during

activities of daily life. Dr. Alam similarly testified that this type of fracture is considered a

pathological fracture because weakened bones can break from activities of daily living.

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15. On the evening of March 11, 2014, Ms. Lovitts was transferred to Huntington

Hospital. Upon presentation to Huntington Hospital, the staff noted that Gurwin had no

history of injury and information from Ms. Lovitts directly was noted to be wholly

unobtainable due to her dementia. However, the records indicate that Ms.Lovitts'

daughter

was present and she told the admitting physician that Ms. Lovitts fell and had been

complaining of left hip pain for five days but Gurwin did not take an X-ray or provide

treatment.1

16. Ms. Lovitts underwent surgery at Huntington Hospital to repair her fractured

left femur on March 12, 2014. Dr. Abulencia performed an intramedullary nailing that

fused Ms.Lovitts'

greater trochanter back to her femur. The surgery was successful and

Ms. Lovitts was subsequently transferred to Carillon Nursing and Rehabilitation Center on

March 18, 2014. Following surgery and at the time of discharge, Huntington Hospital

documented that Ms. Lovitts suffers from Parkinson's disease, hypertension, dementia,

osteoporosis and vitamin D insufficiency. On December 31, 2016, Ms. Lovitts passed away

due to respiratory failure.

OPINIONS

17. Based upon my review of the aforementioned materials, as well as my

education, training, and experience in the field of orthopedic surgery, it is my opinion

within a reasonable degree of medical certainty that PhyllisLovitts'

claims are entirely

IBonnie Lovitts also testified that she was told by her mother that she had fallen, but did not witness a fall, did notknow how the fall occurred and did not know when the fall occurred.

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without merit and that her alleged injuries were not proximately caused by any negligent

act or omission by Dr. Mohammed Alam or Gurwin Jewish Nursing and Rehabilitation

Center.

18. In my opinion, it is undeniable that Ms. Lovitts suffered from Parkinson's

disease, dementia, osteoporosis, osteoarthritis, and vitamin D deficiency. It is also

undeniable that Gurwin appreciated this history upon Ms.Lovitts'

admission and

conducted both a Fall Risk Assessment and Elopement Risk Assessment before instituting

a care plan. It is undeniable that Gurwin abided by and complied with the requirements of

the fall care plan throughout the duration Ms.Lovitts'

admission. It is further undeniable

that Ms. Lovitts did not have a history of wandering or attempting to ambulate on her own

while at Gurwin. It is similarly undeniable that there is no evidence in the Gurwin records

a_t_all that Ms. Lovitts sustained a fall or trauma between March 6, 2014 and March 8, 2014,

or at any time during her stay at Gurwin. While Ms. Lovitts did slide out of her wheelchair

on January 28, 2014, she was appropriately assessed and found to have no injuries. A record

of the incident, including any changes to the care plan were placed in her medical record.

There is no indication that Ms. Lovitts suffered a fall or any trauma at any time during her

admission to Gurwin Jewish.

19. It is my opinion within a reasonable degree of medical certainty that Gurwin

and Dr. Mohammed Alam appropriately and timely assessed and appreciated the Ms.

Lovitts'medical history, symptoms and complaints throughout her admission to Gurwin,

including the Fall and Elopement Risk Assessments performed upon her admission. It is

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my opinion that Dr. Alam and the Gurwin staff appropriately assessed and examined Ms.

Lovitts, noting amongst other things that she was a high fall risk but a low wandering risk.

20. It is also my opinion that based on Ms.Lovitts'

presentation, symptoms,

complaints, and examinations, the intertrochanteric fracture sustained by Phyllis Lovitts

was not caused by a fall due to the negligent care or treatment by Gurwin or Dr. Alam. It

is my opinion within a reasonable degree of medical certainty that osteoarthritis,

osteoporosis, vitamin D deficiency and limited mobility due to Parkinson's disease causes

patients to have weaker and more fragile bones, which makes them more susceptible to

intertrochanteric hip fractures from minor movements, small twists and mild bumps. In this

regard, normal activities of daily living, such as catching ones foot in the bed rail while

repositioning, placing weight on the extremity or slightly twisting or turning during

ambulation/transfers can cause an intertrochanteric hip fracture. In my opinion, within a

reasonable degree of medical certainty, Ms.Lovitts'

osteoporosis, osteoarthritis, severe

vitamin D deficiency, and limited mobility due to her Parkinson's disease caused her to

have weaker and more fragile bones and placed her at a very high risk of experiencing an

intertrochanteric fracture while engaging in normal activities of daily life.

21. Thus, consistent with the opinions of Dr. Alam and Nurse Yerkes, it is my

opinion within a reasonable degree of medical certainty that Ms.Lovitts'

preexisting

osteoporosis, osteoarthritis, vitamin D deficiency, and reduced mobility were the cause of

her intertrochanteric fracture, in conjunction with a normal activity of daily life such as

turning in bed, weight bearing or twisting while ambulating. In my opinion within a

reasonable degree of medical certainty, Ms.Lovitts'

injuries were not sustained by a fall

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or trauma, as there is absolutely no indication in the medical records that Ms. Lovitts

suffered a fall or trauma or its aftereffects. In my opinion within a reasonable degree of

medical certainty, a patient with an intertrochanteric fracture would at most exhibit bruising

within twenty-four hours of the injury. Acute bruising presents as purple in color and as

time passes, the border of the bruise will turn yellow. Based upon the discovery of the

intertrochanteric fracture on March 11, 2014, the acute bruising observed by Nurse Yerkes

that morning, and the absence of any bruising or discoloration the night before, it is my

opinion within a reasonable degree of medical certainty that Ms.Lovitts'

fracture did not

occur between March 6, 2014 and March 8, 2014 but must have occurred between the night

of March 10, 2014, and its discovery on March 11, 2014. Furthermore, the affidavit of

Nurse Vento indicates that during the incident on March 8, 2014, when Ms. Lovitts was

confined to the bathroom, Nurse Vento had her eyes on Ms. Lovitts at all times, and Ms.

Lovitts did not move off the toilet during the period of confinement. Ms. Lovitts was also

examined immediately after and was not found to have any injuries or complaints.

22. Furthermore, in my opinion based on a reasonable degree of medical

certainty, if Ms. Lovitts actually had fallen and sustained an intertrochanteric hip fracture

it would require at least two people to pick her up, creating a very improbable conspiracy

among Gurwin staff to conceal any fall. Additionally, any movement undertaken by a

patient after a hip fracture can cause displacement. Given Ms.Lovitts'

intertrochanteric

hip fracture it is my opinion within a reasonable degree of medical certainty that she did

not weight-bear or walk after sustaining her fracture. Furthermore, it is my opinion within

a reasonable degree of medical certainty that Ms. Lovitts would not have been physically

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able to weight-bear, ambulate, or assist with transfers with this type of fracture. In this

regard, it is my opinion within a reasonable degree of medical certainty that Ms.Lovitts'

fracture occurred sometime between the night of March 10, 2014 and when it was

discovered on March 11, 2014.

23. Although Bonnie Lovitts testified that her mother told her that she had fallen,

she did not know when or how the fall occurred and her testimony is not supported by the

medical record, unless her mother was referring to the time she slid out of her wheelchair

in January. One of the daughters also informed Huntington Hospital that her mother told

her that she fell, but again this information is not supported by Ms.Lovitts'

clinical picture

or her medical records. Ms. Lovitts was noted to be demented, and history from her

regarding her injury was unobtainable by the staff at Huntington Hospital. In this regard,

the statements by the daughters are wholly unreliable. Ms. Lovitts was able to weight bear,

participate in walking therapy, assist with ambulation and transfers, and was not noted to

have any bruising until the morning of March 11, 2014, all of which is entirely inconsistent

with a theory that Ms. Lovitts suffered a hip fracture between March 6, 2014, and March

8, 2014.

24. In my opinion based on a reasonable degree of medical certainty, Ms.

Lovitts'intertrochanteric hip fracture was also not caused by a worsening non-displaced

fracture dating back to the patient's wheelchair slip on January 28, 2014, as same is not

supported by the medical records. In my opinion within a reasonable degree of medical

certainty a non-displaced fracture dating back to January 28, 2014, would have healed by

March 11, 2014, and there is evidence of an acute fracture taking place, based on the

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finding of bruising and pain on palpitation. Furthermore, Ms. Lovitts would not have been

able to participate in physical therapy, walking therapy or assist in transfers, and toileting

with a fracture, and bruising would have been seen at most within 24 hours of the fracture,

which is not the case here. Furthermore, the only allegations herein are that Ms. Lovitts

suffered a traumatic injury between March 6, 2014, and March 8, 2014.

25. Based on the foregoing, it is my opinion within a reasonable degree of

medical certainty that care rendered to Ms. Lovitts by Dr. Alam and Gurwin Jewish

Nursing and Rehabilitation Center was at all times within good and accepted standards of

medical practice and did not cause or contribute to Ms.Lovitts'

alleged injuries.

Dated: Yorktown Heights, New York

October 23, 2018

ObfALD MANN

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