Sanchez v Weiss

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Sanchez v Weiss 2012 NY Slip Op 30272(U) February 2, 2012 Supreme Court, New York County Docket Number: 116693/2009 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] PART . - L/ W YORK CLERKS OFFICE [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 Y l l - c c - - I I - I f I I - I - I - - y - I - c - - I I - - - X BETANIA M.SANCHEZ, Plaintiff, Index No. 116693/09 -against- HALLIE WEISS, M.D., NORTH AMERICAN PARTNERS I ANESTHESIA, L.L.P.,SANDIP N PARIKH, M.D., QUEENS-LONG ISLAND MEDICAL CIROUP, P.C. end NICHOLAS VOOlATZIS, M.D., FILED NEW YORK COUNTY CLERKS OFFICE Motion Sequence Numbers 002 and 003 are hercby consolidated for disposition. and o t Defendants Hallie Wciss, M.D., N r h American Partners In Anesthesia, L.L.P. ("NAPA") move (Motion Sequence Number 002) for an order, pursuant to C.P.L.R.Rule 3212, granting them summary judgment, dismissing the complaint against them, and severing them from thc action. Defendants Nicholas Vogiatzis, M.D,, and Sandip Parikh, M.D.,cross-move and move (Motion Sequence Number 003), respectively, for similar relief, Additionally, Queens-LongIsland Medical Omup, P.C.("QLIMG") s b i s M attorney's affirmation arguing that, if summary judment is umt p t a d to Dr.Vogiatzia andor D .Parikh,the claims againd QLIMG sounding in vicarious liability r for them two physiciansmust be dismissed. Plaintiff Betania Sanchezopposes defendants' motions for summary judgment, arguing both that defendants failed to make a case for summary judgment and that the court should scarch the rccord and grant summary judgment in favor of plaintiff on the theory of m. This case sounding in medical malpractice and lack of informed consent involves a highly unexpected outcome f o a colonoscopy parformed on April 16,2009. Plaintiff, born on rm [* 3] October27,1968, is a mother of t o children and was prcviously umploytd full-time as a laboratory w technician. Though she had a history of osteoarthritis, she maintained an active lifestyle including jujitsu four times per wcuk, dancing, exercising, and walking. Plaintiff had bcen seeing D . r Vo&atzls as her primarycare physician for over one year when she presented to him on M r h 18, ac 2009,for a routine physical. Thu medical m r d s from QLIMQ reflect that she had quit smoking in December 2008 and that her father had recantly died. She also had chronic, lower back pain radiating down to her left leg, and reportad that she had trouble laying down flat without flexingher knees. She reported that she observed bright red blood in her stools when straining or constipated. r She ala0 had a fmily history of cancer. Due to theae factors, D .Vogiatzis rcferrcd plaintiff for a colonoscopy. On April 16, 2009, plaintiff appeared for her colonoscopy. When it w time to perform the colonoscopy, plaintiff was instructed to lay on her left side with her head on a pillow and her knees slightly bent. D .Wciss, the anesthesiologist,then sedated plaintiff with intravenous r propofol. Both physicians testified that after she w s on her side, neither physician moved plaintiff, a Thc records h m the procedure indicate that Dr. Parikh, the gastroenterologist, parformed the colonoscopy without complication. Howavcr, in the recovery room, the n m at plaintiff 3 bedside noted that she w89 not appropriately waking up f o thu anusthcsia, and though her vital signs were rm normal, she was still m s l unrcaponsivu and unable to move or talk an hour after the procedure. oty Plaintiff was drawing deep long breaths and her daughter testified at an examination before hial ( EBT ) that plaintiffs ftct weru cold and blue. Plaintiff was emaguntly transferred to New York Hospital of Queens ( WYHQ ) with aphagia and quaddplagia Upon arrival, her blood gas levels indicated that aha had metabolic acidosis. She was given an extensive work-up and she remained -2- [* 4] at NYHQ for treatment and for intenaiva rahabilitation for approxhatcly one month. Upon her discharge to Silvercrest Center for Nming and Rehabilitation ( Silveremst ) on May 14,2009, she was ablu to move her m s and legs and walk h e steps wt assistance. She remained at ih Silvercrest until July 2,2009, at which point she was discharged home wt a wheelchair. ih Plaintiff reportad at her EBT that she still conhues t axpcrlcnce issue8 related to o the quadriplegia or quadripamis today, such as weakness, numbness, pain, trouble wt daily ih activities, dificulty walking, and double incontinence. A live-in home health aide attends to her. When plaintiff appeared for a physical examination before neurologist Lawrcnce Shields, M.D., at r the request of her attorney, D .Shields diagnosed her with, & post pcrlprocedd ischemic ih rhombncuphalopathy and myelopathy; ischamic myelopathy w t conus and caudaquina features; neuropathic pain syndrome; and cervical and lumbar spondylopathy. Dr. Shieldti report indicates that he attributes the ischemic insult to her rhombencephalon and spinal cord to the events that occurrcd during the colonoscopy on April 16,2009. Essentially, plaintiff dlcgca that dtfendanta Dr.Wciss and D .Parlkh were negligent r in improperly administering the anesthesia and improperly positioning har body during the colonoscopy, thereby causing her posterior circulation and vertebral vascular v t e m to become compromised. She alleges that D .Wcisa negligently administered the anesthesia, administered an r overdose of propofol, and failed to propcrly monitor her during and after the colonoscopy. She alleges that D .Parikh performed a contraindicated proceduru, improperly positioned her during the r colonoscopy, and failed to properly monitor her during and after the colonoscopy. She allege3 that both physicians failed to considerher medical and family history in treating her. ABto Dr. Vogiatds, -3- [* 5] plaintiff alleges that he was negligent in rufming her for a contraindicated colonoscopy and in failing to adquately examhe her prior to referring her for a colonoscopy. I Presently, all parties am scaking summary judgment, The proponent of a summary judgment motion must maku a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fhct from the casu. N,Y. Univ. Mcd. Ctr, 64 N.Y.2d 851, 853 (1985) (citations omitted). When relying on expert opinion evidence to support the & f showing, ag is required in a medical malpractice case, that opinion must be based on facts in the record or ptrsonally known to the witness, and . . an expert cannot m c h a conclusion by assuming material facts not supported by record evidence. Ibqw v, NobpL 73 A.D.3d 204,206 (1st Dap t 2010). Failura to make a Prima faEiE showing requires denial of the motion,regardless of the sufkiency of thc papers in opposition. WinePrad. 64 N.Y.2d at 853. If the movant makcs a showing, the burden shifb to the party opposing the motion to p r o d m evidentiary proof in edmissible form sufficimt to establish the existence of material issues of fact which require a trial of the action. v. Pro, 68 N.Y.2d 320, at 324 (1986) (citation omittad). I medical malpractice actions, expert medical n testimony is essential for demonstrating either the absence or pramw of material issues of fact pertaining to departure h m accepted medical practice or proximate cause. Initially, it must be pointed out that plaintiff docs not oppose D .Vogiatzis cross r motion for summary judgment. D .Vogiatzis submits an expert Mrmation from Robert Fuantcs, r M.D., physician licensed inNew York and board certified in internal medicine, who states that Dr. a Vogiatzis treatment of plaintiffdid not depart fromthe standard of care. D .Fuantes opines, within r 4- [* 6] a reasonable degrua of medical certainty, that Dr. Vogiatzis properly considered and documented plaintiffs family history, medical history, and recent complaints; that he appropriately evaluated and referred plaintiff for a colonoscopy; and that nothing that he did or did not do caused plaintiffs injuries or worscned her iqjuries. As D .Vogiatzia submissions d c i e n t l y establish his r faEfE entitlement to summaryjudgmant, and there is no opposition, his cross motion is granted. Dr. Weiss and NAPA submit an export affidavit from Stephen Slavin,M.D., which in he states that he is a physician duly licensed to practice medicine In New York, board certified in anathwiiology, and familiar with the administration of mesthcsiology for a colonoacopy with propofol. D .Slavin states that he reviewed the QLlMG words; the records from NYHQ;the r depositiontranscripts of Drs. Weiss and Parikh;the report ofLawrence Shields, M.D.; plaintiffs and bills of particulars. He atatea that prior to the colonoscopy, plaintiff had no @or m d c l iuuas, eia which D .Wis confirmed by taking a complete hhtory and physically examining plaintiff. H r es e states that Dr. Weiss appropriately asked plaintiff to position herself on her side, which is dona so that the patient Is in the most comfortable position for herself. Once that occurs, D .Slavin seta r forth, the anesthesiologist is no longer involved in the positioning of the patient s body. H opines e that the doscs of propofol-initial dose of 150 milligrams, and two subsequent doscs of 50 millIpms over twcnty-five (25) minutes-were w t i the standard of care for a female of ihn plaintiffs height and weight; that plaintiff a bloodpressure readings were all within the normal range for a patient sedated w t propofol undergoing a colonoscopy; that plaintiffs pulse was nomd ih throughout the procedure; and that plaintiff was breathing well. He statea that D .W i s cafc p t r es operatively was appropriate, given the fact that pldntiff s vital signs were within normal limits and the fact that some patients take longer than expected to wake up after dtbp sedation. -5- H states that e [* 7] I I plaintiff was being monitored, and there was no need for an anesbsiologlst to evaluate her immediately. Further, he asserts that it ia not the responsibility of the anesthesiologist to monitor or maintain a patient9 body and position while in the recovery mom. When Dr. Weiss did evaluate plaintiff, D .Slavin acts forth, she found plaintiff unrwponaive and breathing atypically but With no r need to assist her ventilation. H opines that D .WciaJ appropriately checked plaintiffs glucose c r levels, which w r )ow, and provided dextrose, which normalized the glucose lovola, Thon, once ee plaintiff did not improve, D .Slavin opines that D .Weisa appropriately had an ambulance called r r t transport plaintiff to the nearest hospital. D .Slavin opines that f o all of the evidence he o r rm r rm reviewed, ?here is simply nothing to suggest that D . Weitis departed f o thu standard of care. notwithstanding blaintiff s] bizam reaction when she emerged from aaesthusia. He states I that if plaintWs InJuries arc as Dr. Shields sy they are, then ha has never h a d of such a complications being caused by a colonoscopy or the administration ofpropofol in the abscnco of an abnormality in vital signs or oxygenation, which he states was not documented. H states that here e is no evidence that plaintiffs b d n or spinal cord were deprived of oxygen at any time. In conclusion, D .Slavin seta forth that he suspacts that plaintiffs idurics are psychologically caused, r though he cannot say, with a reasonable degree of medical certainty, what caused plaintiffs r complications. However, he sets forth that D .Weiss did not depart from good an accepted medical r practice, and that there were no departures by D .Weias that caused plaintiff B iqjurics. rm in Dr. Parikh submits an expert affidavit f o Perry C. Oould, M.D., which he states that he is a physician duly licensed to practice medicine in New York and board certified in gastroenterology. Dr. Ctould states that ha reviewed the QLIMG records, the records from NYHQ, the bills of particulars as to D .Pdkh, and the deposition testimony of plaintiff and Dr. Parikh. r -6- He [* 8] opines, to a reasonable degree of medical certainty, that D .Parlkh acted within the standard of care r in treating plaintiff. H opines that D .P d k h appropriately consided plaintiffs medical history e r and that it was within the standard of cue to parform the colonoacopy. He further opines that plaintiPs complaints of back pain or arthritis had no impact on plaintiffs positioning during the procedure, and that her positioning was appropriate. Dr. Gould states that the atandard of carc is to ot have patients position themselves in the m s comfortable position on their side during a colonoscopy, and that it is not thc atandard of cam to use any additional support davicts under thc h a d beyond a pillow. He opines that D . Parikh appropriately monitorcd plaintiff during the r procedure and that it was appropriate for D .Parikh to l a v c the room after the colonoscopy was r complete without waiting for plaintiff to recover f o the anesthesia. Once Dr. Parikh was notified rm r that plaintiff was not responding in the recovery room,D .Ctould opines that ha properly monitored r plaintiff and attempted to elicit a response from hcr. Dr. Oould opines that D .Parikh's actions did not in any way cause or contribute to any of plaintiff's iqiuriw. Both Dra. Parikh and Wciss made outbdmafaEipcaata BS to entitlcment t summary o judgment on the issue of whether either, respectively, departed from the standard of carc. They provided sufficient axpcrt affidavits detailing their respective conduct during the colonoscopy and opining that such conduct conformed to the standard of mire. As to proximate cause, however, neither of defendants' rtspective exparh provides an opinion as to what causedplaintiffs iqjjUries, but both conclude that nothing that Drs. Weiss or Parikh did caused her injuries. The fact is that plaintiff was ambulatory prior to the colonoscopy and she emerged f o the colonoacopy a rm quadriplegic. It is undisputed that quadriplegia ia not a risk of a colonoscopy under propofol. Without a viable explanation as to how plaintiff w&8 rendered a quadriplegic after the colonmpy, -7- [* 9] it is simply conclusory for the experts to opine that nothing that defendmts did caused pldndff her injuries. The theory given by D .Weisa expcrt Dr. Slavin-that r plaintiff posaibly suffers fbm a conversion disorde+is too speculative to support the absence of a material issue of as to proximate CBUSC. In opposition to defendants motions, plaintiff reiterates her position that she suffered an ischemic iqjuy to her hind brain and spinal cord due to an overdose of propofol anesthesia administmd by D . Weiss; Drs. Weis and Parikh s failure to maintain her neck in proper r alignment with her body during the wlonoscopy procedure; and their failure to timely recognjza and treat her condition. She arguw that the doctrine of & should apply to both defeat defendants motion for summaryjudgmcnt and entitle her to summary judgment, though she dots not move separately for this relief but only asks the court to search the record and grant her summary judgment. Plaintiff argues that her idurlcs could not have occurred in thu absunce of nagligenca. In support of her position, plaintiff offm expert opinions from three different states that he is a physician licensed to practice medicine in a physicians. Hazcm Elzriny, M.D., number of status (not including New York) and board certified by the American Board of Surgery. H states that he reviewed thu QLLMO e records; the records h r n NYHQ; the records from r Silvcrcrest; records of other various medical treatment providers including Dr. Sheilds, D .Zdhr Khan (urologigt), D .Rwjsinghani (neurologist), N r h Shore Univmity Hospital, and physicians r ot from the Dominican Republic (where plaintiff currently resides); the reports of Dm Slavin and Oould; the deposition testimony of the parties, Nurse Thao Nguycn, and plaintiff a daughter; and records exchanged Egarding the brand of propofol used during plaintiffs colonoscopy. D .ElPiny r -8- [* 10] opines that there is no plausible explanation for plaintiffs injuries in the absencc of a medical provider deviating f o the standards of good and accepted medical care. He opines that plaintiff, rm who was sedated, could not have causcd her own i j rc , nor wera there any forcts outside of tha dU i s procedure that could have causcd her iqjuries. Ha states that events known to occur during anesthesia and colonoscopy include an overdo^ of propofol, failure to maintain the haad and neck in proper alignment, and vasovagal raponsea w t bradycatdia and hypotension. Br. Elzriny sets ih forth that these events can be prevented by sloweradministration of propofol, careful and continuous attention to neck and body alignment, rccoguition of vagal responses, or even tcmination of the proccdurc in a timely manner. H opines that D s Waiss and Parikh failed to prevent, recognize, e r. document, and mitigate the aforcmentioncd events, as evidenced by the fact that plaintiff had acidosis upon her admission to NYHQ,which m m that during the colonoscopy she was hypoxic, In Dr. Elzriny s opinion, after the colonoscopy, plaintifs inability to move, her bizarre breathing pattern, and her cold bluish feet were all Indications that she was experiencing wvam metabolic acidosis. He opines that though Dr. Weiss maintained that she administered the initial dose of propofol slowly, it is rare that propofol admMstercd slowly will cause hypotension, so D .W i s r as must have administerad thu propofol too quickly, thereby causing an overdose and, in turn,causing the hypotension. In Dr. Elzriny a opinion, dofandants then failed to appreciate thc signs and symptoms of hypotension and hypoxmia, and never administered oxygen in the recovery mom, which is a departure from the standard of care. He opines that the hypotension and hypoxemia during the colonoscopy caused a lack of adquate blwd flow (and oxygen) to the central neTvous system (YNS ?. -9- [* 11] Dr. ElPiny sets forth that it is both the ancathesiologist s and the gastroonturologist s responsibility to maintain proper positioning during a colonoscopy. He believes that Dm.Parikh and Weiss allowed plaintiff 8 neck to hyperextend or flex during the pmceduru, further restricting the blood and oxygen flow to the vertebral vessels. Evan though both physicians testified that they did not move plaintiff during the procedure, D . ElPiny scts forth that she may have been moved r inadvertently or positioned incorrectly fiom the start. He opines that fhilutc to prevent rm e hyparcxtension or flexion of the neck is a departura f o the standard of care. H opines that the lack of oxygen through tha v~rtcbralvessels caused the ischemic rhombencephalopathy and myelopathy, and consequential paralysis and pain. He opines that the injury to the hind brain and spinal cord is evident b z c a u s c plaintiff ww able to blink but was unable to move any of her extremities, which would be controlled by the CNS, the area of plaintiffs iqjury. Plaintiffs two other expertls, D .Shields and Peter Emst, M.D., anesthcsiologist, r an submit opinions that largely echo D .Elztiny s opinion, & they opine that plaintiff suffered an r ischemic iqjury to her hind brain and spinal cord due to ischemic hypoxia cauJed by pmpofolinduced hypotension from D ,Weias Improper administration of propofol, Dr. Weiss failure to r maintain plaintiffs head and neck in propor alignment during the wlonoscopy, and Drs, Weiss and Parikh a failure to timely recognize and ttcat plaintiffs hypotension. D .Shields also opines that r there Is no evidence that plaintiff is suffering from a convcrsion (psychiatric) disorder. Dr. Shields and D .Ernst aver that D .Slavin s opinion that an iqjury like plaintiff s could not have occumd r r in the abscnce of an abnormality in vital signs or oxygenation should be discounted because the records fromNYHQ show that plaintiff did have an abnormality in oxygenation. [* 12] In reply, the moving defendants argue that plaintiff did not rebut theh prima f & entitlement to summary judgment. Additlonally, counsel for Dr. Weiss and NAPA argues that plaintiffs experts opinions should be discounted because the moving papers did not contain the records that the experts relied on. It is unclaar whathcr counsel is referring to her own moving papers, w i h do not contain a number of the records mentioned by plaintiffs experts, or plahtiff s hc opposition papem, which contain all of the rceords mentioned by her experts that were not annexed to the moving papers except for the treatment records h m pldntiff s physicians in the Dominican Republic, though none of plaintiffs cxperts appear to provide any opinions based on thu records fromplaintiffs physicians i the Dominican Republic. This argument that the court must preclude n r plaintiffs experis opinions on this basis is rejected. D .Wuiss and NAPA further argue that they were surprised by plaintiffs addition of a new theory of liability in opposition to thair motion for summary judgment. The new theory, as D .Weiss and NAPA aseert, is that Dr. Weisa administered r the propofol too quickly, thereby causing a drop in blood praasure, which led to loss of oxygen and inadequate circulation, as shown by plaintiffs metabolic acidosis upon presentation to NYHQ. These defendants assert that they never knew that metabolic acidosis was at issue in thiscase. While - plaintiffs are not permitted to assert new theories of Hability not previously plcd in opposition to a motion for summary judgment mwvv, Rozbruch.-A.D.3d 2012 Slip Op. 22, * 14 [1st Dcp t 2012]), the issue of metabolic acidosis is not a now theory; rather, it is plaintiffs experts attempts to point to proof in the medical records in support of their position that D . Waiss r administered an ovcrdow of propofol. Since the theory that plaintiff ww overdosed wt propofol ih has betn properly plcd, the court declines to disregard plaintiffs opposition on these ground. -1 1- [* 13] is an evidentiary rule allowing the jury to infer negligence f o rm circumstanca when the event would not ordinarily occur in the abscncc of negligencu. New Y - &&h~ 170 A.D.2d 92,99 (1st Dcp t 1991) (citation o i t d . If, at trial, mte) plaintiff establishes that the event does not ordinarily occur in the absence of someone else s mgligence, that it was cawed by an agency or instrumentality within the exclusive control of the defendant, and that it could not have been caused by plaintiff B voluntary action or contribution, then a prima facie case of negligence existsand plaintiff is entitled to have res ipsa loquiturchqcd to the jury. m a t Y. St, F 89 N.Y.2d 489,494 (1997). In the context of medical malpractice cases, the doctrine may bo applicable where an inference exonerating the physician is improbable as a m t e of fact. Thug, where an atr unexplained injury o c c d in an area remote f o the opcmtive site rm while the patient w83 anesthetized, the doctrine of res ipsa loquitur has been applied. Additionally, wharu a foreign object is left in the body of a patiant after an operative procedure is cornplcted, a charge with respect to res ipsa loquitur would be warranted. SD. M G 14 1 A.D.2d 589,590 (2d Dcp t 1988) (hemal quotations and citations omitted). There is no diapute that plaintiff,while mMcious, was under the exclusivecontrol of Dn.Parikh and Weiss during the colonoscopy, and that plaintiff did not have quadriplegia prior to the colonoscopy but did upon recovering f o the colonoscopy. Plaintiffs expert3 have opined rm that quadriplegiais not a risk of a colonoscopy and that quadriplegia could not have happened in the absence of negligence during the colonoacopy, and have provided their own theories as to which dcparturcs could hava occucrodthat would have caused plaintiffs Injuries. Plaintiff has sufficiently -12- [* 14] rebutted the moving defendants Ddme & f showing wt competent evidence, establishing that ih comptting theories of liability exist and warranting danial of summary judgment at this juncture,. However, plaintiffs request that the court grant her summary judgment is denied for failure to make out a afaEie showing of entitlcmentto judgment as a matter of law. [OJnly in the m s t of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiffs circumstantialproof is so convincing and the defendant s rcsponsc SO weak that the inference of defendant s negligenco is inescapable. v. M C s w 7 N.Y.3d 203,209 (2006). Plaintiffs submissions fail to meet the high burden for summary judgment on a = As to the cause of action sounding in lack of informed consent, plaintiff simply cannot maintain this cause of action. Lack of informed consent is the f l r of the person providing the professional treatment or duc diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved 8s a reasonable m t d h l , dental or podiatric practitioner under d m h r circumstanca would have diacloscd, in a manner permitting the patient to make a knowledgeable evaluation. Public H a t Law 8 2805-d(1). A defendant will be entitled to summary judgment on a lack of elh informed consent claim if he or she demonstrates that the plaintiff was informed of the alternatives to and the reasonably foreseeable risks and benefits of the treatment, and that a reasonably prudent patient would not have declined to undergo the [trcatmcnt] if he or ha had bcun informed of the potential complications[.] v. Y e w , 66 A.D.3d 642,643 (2d Dep t 2009);~h Public Hcalth Law 8 2805-d( 1). Defendants maintain t a they disclosed the reasonably foreseeable ht -13- [* 15] risks and provided copies of the informed consent forma that plaintiff signed prior to the procedure. Plaintiff m r l denies that defendants ever had discussions wt her regarding the risks of the eey ih procedures. M r i p r a t y however, is the fact that plaintiff has never alleged that her idudc~ o e motnl, arc reasonably foreseeable risks to a colonoscopy under sedation by propofol. Indeed, it has been vigorously m i t i e by both sides that plaintiff B injuries arc not risks of a colonoscopy under anand sedation by propofol. Essentially, plaintiff has failed to even allege the facts required to plead a must of action sounding in lack of informed consent. Thus, defendants am entitled to summary judgment on the causes of action sounding in lack of informcd consent. Accordingly, it ia haraby ORDERED that defendant Nicholas Vogiatzis, M.D. s cross motion for summary judgment is granted and the complaint is dismissed against h m and the Clerk is directed to enter i, judgment accordingly; and it is M e r ORDERED that thost branches of the motions of Hallie Weiss, American Partners in Anesthesia, M.D.,North L.L.P., and Sandip Parikh, M.D,, seeking summary judgment on the cause of action sounding in lack of informed consent arc granted and the c w of action a sounding in lack of informed consent is hereby dimiased against Hallit Weiss, M.D., North American Partners i Anesthesia, L.L.P., and Sandip Parikh, MD., the Clerk is directed to enter n and judgment accordingly; and it is further -14- [* 16] ORDERED that those branchca of the motions of Hallia Wuiss, M.D., North American Partners in Anesthesia, L.L.P.,and Sandip Parikh, M.D., seeking summary judgment on the awse of action sounding in medical malpractice ate denied; and it is fiuthtr ORDERED that, to the extent that plaintiff spught summary judgment in her opposition papers, plaintiffs request for s u ~ ~ ajudgment r y is denied; and il is M e r ORDERED that the remaining partiw shall appear for a prc-trial conference on February 21,2012, at 9:30a.m., Part 6. in Dated: February 2 FILED ENTER ,2012 0 3 2012 NEW YORK COUNTY CLERKS UFI~I-E -1 5-

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