Lori Rosen Semlies

Lori Semlies (Partner-White Plains, NY) and Kristyna Burkova (Associate-New York, NY) were successful on a motion to dismiss the complaint on behalf of our clients, a hospital and physician, based on COVID-19 immunity grounds, specifically on EDTPA and PREP Act immunities. Lori and Kristyna moved to dismiss at the close of discovery after more than three years of litigation. The 71-year-old plaintiff was transferred to our client hospital with a COVID-19 diagnosis, strep mitis bacteremia, spinal osteomyelitis at C2-C3 and L3-L4, multi-focal pneumonia, and pulmonary edema. Upon admission, he received all indicated care, and when he was stable enough, he was transferred to Mount Sinai Hospital for evaluation for an aortic valve replacement. His  injuries healed completely within three months of discharge. When the plaintiff filed suit, Lori and Kristyna submitted a geriatric expert affirmation in support, as well as expert affirmation of a board-certified pulmonary and critical care physician, who was a director of the medical ICU during the pandemic and who detailed the impact of the pandemic on the care at the time of plaintiff’s admission. Before filing his opposition, plaintiff cross-moved to amend the pleadings to add a gross negligence cause of action in an obvious attempt to circumvent the immunities. The Court granted our motion pursuant to the immunities afforded by the EDTPA and PREP Act and denied plaintiff’s cross-motion for leave to amend the complaint for failure to present a meritorious cause of action. In the decision, following its prior decisions in Kalogiannis and Gerber, the court noted that plaintiff’s claims fall squarely within the immunity. 

Anna Borea (Associate-White Plains, NY), Steven DeBraccio (Of Counsel-Albany, NY), Katherine McCrink (Partner-White Plains, NY), and Lori Semlies (Partner-White Plains/New York, NY) defeated allegations against two nursing homes and a home care agency charged with malpractice in the care of three decedents – a tour de force on behalf of Wilson Elser’s Medical Malpractice & Health Care Practice.

The first dismissal was out of Kings County. We represented the nursing home. There, the plaintiff claimed the development and deterioration of pressure ulcers. The pressure ulcers first developed at co-defendant hospital, where the decedent was admitted from June 3, 2020, through July 31, 2020. Plaintiff was then discharged to our client nursing home from July 31 through August 7, 2020. The decedent was then discharged to a non-party hospital and subsequently passed away. By the time the decedent was admitted to our nursing home, he had a necrotic stage IV sacral ulcer, was ventilator dependent, and in kidney failure. Although the hospital admission fell squarely within the immunity provided under EDTPA, the nursing home admission, in part, fell outside of the EDTPA immunity. Our summary judgment motion focused on the clinical unavoidability argument as well as Executive Order 210.10 (which alleviated facilities from the requirement to regularly document and extends beyond the EDTPA immunity period). In opposition, plaintiff focused on claims stemming from the facilities lack of documentation.

Next, in a case also out of Kings County, we represented another nursing home. The plaintiff claimed the decedent suffered from a bowel perforation on May 20, 2018, which led to death a few days later. In our motion, we argued that there was no prior indication that (1) the decedent was suffering from a bowel perforation and (2) the decedent should have been sent to the hospital any sooner than he was. In opposition, the plaintiff focused their argument on two instances of isolated rectal bleeding in 2015 and 2017 and an alleged failure to order gastrointestinal consultations following those bleeding episodes. The plaintiff also argued that constipation caused the bowel perforation. This directly contradicted our gastrointestinal expert, who opined the perforation was caused by diverticulitis. In reply and at oral argument, we focused on the fact that this was a case that came down to the days leading up to the perforation at issue, not the years. We further argued that any reference to gastrointestinal consultations was irrelevant to the claims being asserted here as it is still unclear how those consultations would have been able to predict a bowel perforation years later. We also argued that, in those days leading up to the perforation, there was no indication that the decedent was suffering from any signs or symptoms of a bowel perforation. Essentially, we argued that the cause of the perforation was immaterial to the claims asserted here given the facts then and there existing to the nursing home staff. The court agreed. 
 
Finally, in a case out of Bronx County, we represented an agency providing nursing home care. The plaintiff claimed a failure to diagnose and treat a bump on the decedent’s groin. The bump was first identified by the assessing nurse on July 22, 2014, who documented the decedent denied any pain or discomfort to the area and that her vital signs were normal. Nevertheless, the assessing nurse immediately notified the decedent’s doctor and requested an evaluation, which was performed the next day. The on-call doctors’ office sent a PA to assess the “bump,” diagnosing the decedent with cellulitis to the area. The decedent passed away on July 27, 2014, due to the “bump” [an aneurysm] rupturing, resulting in her bleeding out. 
 
In addition to our client, the plaintiff named the on-call doctors’ agency and home health aid agency, as well as the PA/doctors individually. At summary judgment, the plaintiff limited their claims against our client, stating the assessing nurse was negligent and departed from the standard of care by (1) failing to send the decedent to the ER on July 22, 2014, when a “bump” was first identified on the decedent’s groin and (2) failing to perform a proper assessment of the “bump” on July 22, 2014. In reply, among other things, we argued plaintiff’s expert had no experience with home care, the assessing nurse performed a complete and thorough assessment in accordance with the standard of care, and co-defendant PA’s actions/inactions superseded the nursing assessment. 

Kristyna Burkova (Associate-New York, NY) and Lori Semlies (Partner-New York, NY) were successful with a motion to dismiss the complaint against our client, New York Presbyterian Queens Hospital (NYPQ), for failure to appear for an independent medical examination (IME). The case involved a premature twin baby who sustained an IV infiltration on her left ankle in the NICU at NYPQ, which was treated in the burn unit at New York Presbyterian – Weill Cornell for one week and remained in the NICU for another month due to issues related to her respiratory function and ability to adequately feed. About two months after the infant’s discharge home, her left ankle wound was noted as a healed scar by her pediatrician and the infant did not appear to have any continued issues, nor did her parents seek additional treatment. When the plaintiff claimed scarring, open wound, deformity, bleeding, swelling, limited range of motion and conscious pain and suffering, Krystina and Lori designated a plastic surgery IME. The plaintiff did not object to the designation and was ordered to undergo the IME in two consecutive compliance conference orders. Despite plaintiff’s repeated failure to appear for the IME (as well as failure to provide other paper discovery), and despite our 11 good faith correspondences, the court gave plaintiff one last chance. Krystina and Lori filed a motion to dismiss the day after the third deadline passed. Hon. Tracy Catapano-Fox of the Queens County Supreme Court granted the motion noting that “[while] dismissal is a drastic remedy, plaintiff’s actions and inactions demonstrate willful and contumacious behavior that warrants dismissal under CPLR §3126.”  

White Plains, New York, partners Lori Semlies and Katherine McCrink and Steven V. DeBraccio (Associate-White Plains, NY)  ) received an affirmance from the First Department, granting our motion for summary judgment, seeking dismissal of claims for gross negligence and punitive damages against our client nursing home. The case involved a resident who, over a three-year time period (and a seven-year admission) sustained approximately 24 falls at our client’s nursing home. The plaintiff sued our client for negligence, the Public Health Law, and, as relevant to the appeal, gross negligence and punitive damages. Lori, Katherine, and Steven moved to dismiss the plaintiff’s claims for gross negligence and punitive damages, arguing that, in light of the myriad of progressively increasing fall protection protocols afforded to decedent, including close supervision and placement at the nursing station, there was no evidence of a willful disregard of the decedent’s rights, any conduct that rose to the level of gross negligence, or, as the First Department put it, “willful conduct that evidences a high degree of moral culpability so as to support a claim for punitive damages.”  The trial court agreed, and on appeal, the First Department affirmed the dismissal.  

In a New York State Supreme Court case in Schenectady County, attorneys Lori Semlies (Partner-White Plains, New York) and Kadeem Wolliaston (Associate-Albany) successfully opposed a motion to amend a complaint in a negligence lawsuit against a rehabilitation and nursing center. The plaintiff had initially filed against the center and several defendants listed by first names or as “John Does.” Despite requesting the center’s help to identify these individuals, the plaintiff was informed that no employees matched those names during the relevant period. The plaintiff later sought to amend the complaint to include the full names discovered from the center’s medical chart, which he had possessed since January 2023. The court denied the amendment, siding with our argument that the plaintiff’s delay in identifying the defendants caused prejudice, as the statute of limitations had expired.

Lori Semlies (Partner-White Plains, NY) and Anna Borea (Associate-White Plains, NY) obtained a unanimous defense verdict in Supreme Court, Westchester County on behalf of an assisted-living facility and its home care agency. The plaintiff alleged that the staff either abused an 87-year-old woman or failed to prevent her fall. A subdural hematoma and subarachnoid hemorrhage and a bruise were identified at the hospital. Lori and Anna presented evidence that the patient’s bleed was a result  of  anticoagulants and the bruise was one that someone, especially someone on coumadin, would receive from simply bumping into furniture. The treating neurosurgeon was called by the plaintiff to testify that he believed the bleed was more likely caused by a fall, yet conceded on cross that he could not rule out an abrupt shaking of the head without trauma, given the fact that the patient had an atrophied brain and was on coumadin. The plaintiff requested $4.4 million from the jury.

Judy Selmeci (Partner-New York, NY) successfully defended in New York Supreme Court, Appellate Division the defense verdict obtained by White Plains partners Michael Grady and Lori Semlies. In the underlying matter, the plaintiff alleged that the hospital’s radiology technician violated hospital protocols while administering intravenous contrast. Mike and Lori argued at trial that although the employee administered contrast at a different rate than the hospital’s policy suggested, the technician abided by the guidelines of the American College of Radiology which reflect the standard of care; therefore there was no malpractice. Mike and Lori consulted with the Appellate team frequently during the contentious trial and built record that proved to be a solid foundation of research and arguments for the appeal. The Appellate Division held that the hospital’s policy was merely “some evidence of negligence” and the jury could find, despite violation of the policy, as it did that the defendants did not depart from the standard of care.