FILED: KINGS COUNTY CLERK 03/08/ :21 PM INDEX NO /2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/08/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X LORI A. BERENTSEN, Individually, and as Administrator of the Estate of Angela Lotito- Borriello a/k/a Angela Lotito, - against - Plaintiff, DITMAS PARK REHABILITATION & CARE CENTER, LLC, METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC. Plaintiff designates Kings County as the place of trial. The basis of venue is Plaintiff s Address. SUMMONS Plaintiff resides at: 2238 east 1 st Street Brooklyn, NY Defendants X TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, on the plaintiff s Attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after service is complete if this summons is not personally delivered to you within the State of New York) and to file a copy of your answer with the Clerk of the above-named Court; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the comp1iant. Dated: March 8, 2017 Mark Salem, Esq. SALEM & SHIMKO, ESQS., LLC 446 Avenue P Brooklyn, NY (718) of 13

2 Defendants' Addresses: DITMAS PARK REHABILITATION & CARE CENTER, LLC 2107 Ditmas Avenue Brooklyn, NY METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC. 506 Sixth Street Brooklyn, NY, of 13

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X LORI A. BERENTSEN, Individually, and as Administrator of the Estate of Angela Lotito- Borriello a/k/a Angela Lotito, Index No.: VERIFIED COMPLAINT - against - Plaintiff, JURTY TRIAL REQUESTED DITMAS PARK REHABILITATION & CARE CENTER, LLC, METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC. Defendants X Plaintiff, complaining of the Defendants, by attorneys, SALEM & SHIMKO, ESQS., LLC allege for her complaint as follows: PARTIES 1. At all relevant times mentioned herein, the plaintiff LORI A. BERENTSEN is a natural person residing in the City and State of New York, Kings County. 2. At all relevant times mentioned herein the plaintiff LORI A. BERENTSEN ( Plaintiff Administrator ) is the daughter and administrator of the Estate of ANGELA LOTITO- BORRIELLO also known as ANGELA LOTITO ( Plaintiff Decedent ). 3. At all relevant times mentioned herein, the Defendant DITMAS PARK REHABILITATION & CARE CENTER, LLC is a limited liability company organized under the laws of the State of New York. 4. At all relevant times mentioned herein, the Defendant METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC. is a not-for-profit corporation organized under the laws of the State of New York. 3 of 13

4 STATEMENT OF FACTS 5. The Decedent Plaintiff died on May 23, At all relevant times mentioned herein, the Defendant DITMAS PARK REHABILITATION & CARE CENTER, LLC operates a rehabilitation center at 2107 Ditmas Avenue, Brooklyn, NY At all relevant times mentioned herein, the Defendant METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC. operates a hospital at 506 Sixth Street Brooklyn, New York, For several years, the Plaintiff Decedent was unable to care for herself due to Lewy Body Dementia. The Plaintiff Decedent required urinary tract stent replacement every six months. 9. On September 22, 2015, the Plaintiff Decedent was admitted at Defendant, DITMAS PARK REHABILITATION & CARE CENTER, LLC, rehabilitation center. 10. On or about October 18, 2015, the Plaintiff Administrator noticed bed sores on the Plaintiff Decedent s skin. These sores festered into a large wound and became infected. 11. Despite the Plaintiff Administrators continuous complaints, the required supervision and care for the Plaintiff Decedent was not provided. 12. The Plaintiff decedent remained a resident and patient of DITMAS PARK REHABILITATION & CARE CENTER, LLC under their continuous care and treatment, until she was transferred in January On or about January 6, 2016, the Plaintiff s decedent was transferred to the Defendant s METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC., hospital at 506 Sixth Street Brooklyn, New York, for wound debridement. 14. On or about January 8, 2016, the Defendant METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC., intubated the plaintiff decedent s nose to assist her breathing. 4 of 13

5 15. Upon information and belief, when performing the intubation procedure, the Defendant DITMAS PARK REHABILITATION & CARE CENTER, LLC performed the intubation incorrectly. 16. Upon information and belief, at all relevant time, the Defendant DITMAS PARK REHABILITATION & CARE CENTER, LLC failed to properly clean and care for the Plaintiff decedent s bedsores. 17. The Defendant DITMAS PARK REHABILITATION & CARE CENTER, LLC failed to properly care for and treat a septic infection spreading through the Plaintiff Decedent s body. 18. The Plaintiff s decedent remained a patient at the Defendant s METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC., under Defendant s continuous care and treatment until she died. 19. Upon information and belief, at all relevant times, the Defendant METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC., failed to properly clean and care for the Plaintiff decedent s bedsores. 20. Upon information and belief, at all relevant times, the Defendant METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC., failed to properly care for and treat a septic infection spreading through the Plaintiff Decedent s body. 21. Upon information and belief, at all relevant times, the Defendant METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC., failed to properly perform an intubation procedure upon the Plaintiff Decedent. 22. Upon information and belief, as a result of the negligence of the Defendant, DITMAS PARK REHABILITATION & CARE CENTER, LLC and the Defendant METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC., the Plaintiff decedent died. 5 of 13

6 AS AND FOR A FIRST CAUSE OF ACTION (WRONGFUL DEATH) 23. Plaintiff repeats, reiterates and re-alleges each and every allegation of this complaint, with the same force and effect as is fully set forth herein. 24. At all relevant times set forth in this complaint, the Defendants owed Plaintiff s decedent a duty of care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances. 25. Among other things, upon information and belief, at all times relevant to this complaint, the Defendants, its employees, and agent were reckless, careless, and negligent in causing the plaintiff to develop bedsores; in failing to provide plaintiff proper care and attention; in causing plaintiff to have and endure recurrent bouts of sepsis; in failing to properly change and bath the plaintiff; in permitting the plaintiff to remain and lay in her own urine and feces for unreasonable periods of time; in failing to hire and employee a sufficient number of qualified staff members to care for and treat the plaintiff; in failing to adequately train its staff; in failing to implement procedures to prevent bed sores; in failing to implement procedures to treat and cure bed sores; in failing to use proper dressings to treat the plaintiff s bed sores; in failing to properly change the dressings and clean the plaintiff s bed sores; in failing to properly position the plaintiff s decedent to prevent and/or treat the decedent s bed sores; and were otherwise reckless, careless, and negligent. 26. As a direct and proximate result of the Defendants recklessness, carelessness, and negligence, the Plaintiff s decedent was caused to die. AS AND FOR A SECOND CAUSE OF ACTION (CONSCIOUS PAIN AND SUFFERING) 6 of 13

7 27. Plaintiff repeats, reiterates and re-alleges each and every allegation of this complaint, with the same force and effect as is fully set forth herein. 28. At all relevant times set forth in this complaint, the Defendants owed Plaintiff s decedent a duty of care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances. 29. Among other things, upon information and belief, at all times relevant to this complaint, the Defendants, its employees, and agent were reckless, careless, and negligent in causing the plaintiff to develop bedsores; in failing to provide plaintiff proper care and attention; in causing plaintiff to have and endure recurrent bouts of sepsis; in failing to properly change and bath the plaintiff; in permitting the plaintiff to remain and lay in her own urine and feces for unreasonable periods of time; in failing to hire and employee a sufficient number of qualified staff members to care for and treat the plaintiff; in failing to adequately train its staff; in failing to implement procedures to prevent bed sores; in failing to implement procedures to treat and cure bed sores; in failing to use proper dressings to treat the plaintiff s bed sores; in failing to properly change the dressings and clean the plaintiff s bed sores; in failing to properly position the plaintiff s decedent to prevent and/or treat the decedent s bed sores; and were otherwise reckless, careless, and negligent. 30. As a direct and proximate result of the Defendants recklessness, carelessness, and negligence, the Plaintiff s decedent was caused to suffer severe and permanent injuries. AS AND FOR A THIRD CAUSE OF ACTION (MEDICAL MALPRACTICE) 31. Plaintiff repeats, reiterates and re-alleges each and every allegation of this complaint, with the same force and effect as is fully set forth herein. 7 of 13

8 32. At all relevant times set forth in this complaint, the Defendants owed Plaintiff decedent a duty of care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances. 33. Among other things, upon information and belief, at all times relevant to this complaint, the Defendants, its employees, and agent were reckless, careless, and negligent in causing the plaintiff to develop bedsores; in failing to provide plaintiff proper care and attention; in causing plaintiff to have and endure recurrent bouts of sepsis; in failing to properly change and bath the plaintiff; in permitting the plaintiff to remain and lay in her own urine and feces for unreasonable periods of time; in failing to hire and employee a sufficient number of qualified staff members to care for and treat the plaintiff; in failing to adequately train its staff; in failing to implement procedures to prevent bed sores; in failing to implement procedures to treat and cure bed sores; in failing to use proper dressings to treat the plaintiff s bed sores; in failing to properly change the dressings and clean the plaintiff s bed sores; in failing to properly position the plaintiff s decedent to prevent and/or treat the decedent s bed sores; and were otherwise reckless, careless, and negligent. 34. As a direct and proximate result of the Defendants recklessness, carelessness, and negligence, the Plaintiff s decedent was caused to suffer severe and permanent injuries. AS AND FOR A FOURTH CAUSE OF ACTION (NEGLIGENCE) 35. Plaintiff repeats, reiterates and re-alleges each and every allegation of this complaint, with the same force and effect as is fully set forth herein. 36. At all relevant times set forth in this complaint, the Defendants owed Plaintiff decedent a duty of care and treatment with that degree of skill, care, and diligence as 8 of 13

9 possessed by or expected of a reasonably competent physician under the same or similar circumstances. 37. Among other things, upon information and belief, at all times relevant to this complaint, the Defendants, its employees, and agent were reckless, careless, and negligent in causing the plaintiff to develop bedsores; in failing to provide plaintiff proper care and attention; in causing plaintiff to have and endure recurrent bouts of sepsis in failing to properly change and bath the plaintiff; in permitting the plaintiff to remain and lay in her own urine and feces for unreasonable periods of time; in failing to hire and employee a sufficient number of qualified staff members to care for and treat the plaintiff; in failing to adequately train its staff; in failing to implement procedures to prevent bed sores; in failing to implement procedures to treat and cure bed sores; in failing to use proper dressings to treat the plaintiff s bed sores; in failing to properly change the dressings and clean the plaintiff s bed sores; in failing to properly position the plaintiff s decedent to prevent and/or treat the decedent s bed sores; and were otherwise reckless, careless, and negligent. 38. As a direct and proximate result of the Defendants recklessness, carelessness, and negligence, the Plaintiff s decedent was caused to suffer severe and permanent injuries. WHEREFORE, the plaintiff demands judgment against the defendant, plus costs and attorney's fees to the extent permitted by law in an amount greater than the jurisdictional minimum limits of this Court. Dated: Brooklyn, New York March 8, 2017 Mark Salem, Esq. SALEM & SHIMKO, ESQS., LLC 446 Avenue P Brooklyn, NY of 13

10 (718) of 13

11 ATTORNEY VERIFICATION MARK SALEM, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: I am the attorney of record for the plaintiff in the within action. I have read the annexed VERIFIED COMPLAINT and know the contents thereof, and the same are true to my knowledge, except those matters therein which are stated to be alleged upon information and belief, and as to those matters, I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon facts, records, and other pertinent information contained in the office files. This verification is made by me because Plaintiff is not presently in the county where I maintain my office. Dated: Brooklyn, New York March 8, 2017 Mark Salem 11 of 13

12 CERTIFICATE OF MERIT Mark Salem, an attorney admitted to practice law before the Courts of the State of New York, and the attorney for the plaintiff herein, certifies the following pursuant to CPLR 3012-a: I have reviewed the facts of this case with at least one physician who is licensed to practice medicine within this or some other state who I reasonably believe is knowledgeable in the relevant issues involved in this action, and I have concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of this action. Dated: Brooklyn, New York March 8, 2017 Mark Salem 12 of 13

13 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X LORI A. BERENTSEN, Individually and as Personal Representative of the Estate of Angela Lotito-Borriello a/k/a Angela Lotito, - against - Plaintiff, SAINTS JOACHIM & ANNE NURSING AND REHABILITATION CENTER, DITMAS PARK REHABILITATION & CARE CENTER, LLC, METHODIST HOSPITAL PHYSICIANS ORGANIZATION, INC. Defendants X SUMMONS & COMPLAINT SALEM & SHIMKO, ESQS., LLC 446 Avenue P Brooklyn, NY Pursuant to 22 N.Y.C.R.R , the undersigned, an attorney admitted to practice in the courts of New York State, certifies that upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: March 8, 2017 Signature: Mark Salem, Esq. 13 of 13