Giandana v. Providence Rest Nursing Home, 2006 NY Slip Op 4189 (N.Y. App. Div. 2006)

Resident, 91 year old allegedly sustained a fractured femur and multiple bruises while she was being transferred from bed to a wheelchair. An agency CNA, Akosah, had been assigned to assist the LPN on duty. After Plaintiff filed suit, the nursing home brought a third-party action against the agency CNA and her employer. Plaintiff moved for summary judgment, contending that the nursing home violated its own protocol set out in an “accountability book.” The accountability book had described the resident as “high risk” needing two people or a lifter when moved or transferred. The nursing home’s records described the injury as resulting from Akosah’s attempt to move the resident and, during the attempt, Akosah fell on the resident. The nursing home contended Akosah was not its employee and that it was not responsible for her violation of the rules. The court found that the nursing home was negligent for allowing the resident to be moved in an unsafe manner in contravention to its own policies. On further appeal, in Giandana v. Providence Rest Nursing Home, 2007 N.Y. LEXIS 162 (N.Y. 2007), the summary judgment was reversed. “[Q]uestions of fact relating to how decedent was injured, whether Akosah was involved, and whether the nursing home was otherwise negligent precluded a grant of partial summary judgment.”