Weber v Brackman
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Weber v Brackman 2012 NY Slip Op 30477(U) February 10, 2012 Sup Ct, Suffolk County Docket Number: 07-23265 Judge: Joseph C. Pastoressa 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] SHORT FORM ORDER rNDEXNo. CALNo. 07·23265 10·00231MM SUPREME COURT - STATE OF NEW YORK IAS. PART 39 ¢ SUFFOLK COUNTY PRESENT: Hon. JOSEPH C. PASTORESSA Supreme Court Mot. Seq. # 00 I MotD --------- ... ---... ----------------------------------------------------X CYNTHIA WEBER, Individually and as the, Executrix of the Estate of DENNIS WEBER, Deceased, DUFFY & DUFFY, ESQS. Attorney for Plaintiffs 1370 Rex Corp. Plaza Uniondale, New York 11556 Plaintiffs, BOWER MONTE & GREENE, P.C. Attorney for St. Catherine of Siena 261 Madison Avenue New York, New Yark 11042 - against - MATTHEW RICHARD BRACKMAN, M.D., COLLIN EVERTON-MONTGOMERY BRATHWAITE, M.D., COLLIN E.M. BRATHWAITE, M.D., PLLC, BRATHWAITE SURGICAL, PLLC, and ST. CATHERINE OF SIENA MEDICAL CENTER, Defendants. GALLAGHER, WALKER, BIANCO & PLAST ARAS Attorney for Defendant Brathwaite Surgical 98 Willis Avenue Mineola, New York 11501 IVONE, DEVINE & JENSEN, LLP Attorneys for Defendant Brackman, M.D. 2001 Marcus Avenue, Suite NIOO Lake Success, New York 11042-1024 -----------------------------------------------------------------X Upon the following papers numbered 1 to -1J. Jead on this motion and cross motion for summary judf.!.ment ; Notice of Motion! Order to Show Cause and supporting papers (001) 1 -14 ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 15 - 20 ; Replying Affidavits and supporting papers 21 - 23 ; Other _; (alld aft" Itea,iltg counsel ill SUppOitaud upp(')scd 10 llie Illation) it is, ORDERED that this motion (001) by defendant St. Catherine of Siena Medical Center for an order granting summary judgment dismissing plaintiffs complaint as asserted against it is granted only to the extent that it is determined that defendant Collin Brathwaite M.D., and defendant Matthew Brackman, M.D., were private attending physicians and not employees of St. Catherine of Siena Medical Center, and thus, it is not vicariously liable for their alleged malpractice and acts of negligence; the application is denied insofar as it applies to allegations of negligence or malpractice by the employees ofSt. Catherine of Siena Medical Center. This medical malpractice action brought by Cynthia Weber is premised upon allegations of negligence, lack of informed consent, and wrongful death of the plaintiffs decedent Dennis Weber, and the negligent hiring of various employees by the defendant St. Catherine of Siena Medical Center, as well as a derivative claim on behalf of Cynthia Weber, relating to the care and treatment rendered 10 the plaintiffs decedent involving a small bowel obstruction. It is claimed that the defendants departed from accepted [* 2] Weber v Brackman Index No. 07-23265 Page No.2 standards of care in failing to timely and properly diagnose and treat a small bowel obstruction, resulting in the plaintiffs decedent having to undergo multiple subsequent surgeries, and suffer infections, sepsis, cardiac arrest and premature death. The defendant St. Catherine of Siena Medical Center seeks summary judgment dismissing the complaint on the bases that its employees did not depart from the good and accepted standards of medical practice in its treatment of the plaintiffs decedent, and that it is not vicariously liable for any actions of the plaintifrs private attending surgeons Dr. Brackman and/or Dr. Brathwaite. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs . ¢ 46 NY2d 1065 [1979]; Sillman v Twentieth Century-Fox FIlm Corporation, 3 NY2d 395 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winee:rad v N.Y.U. Medical Center, 64 NY2d 851 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Cemer, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings arc real and capable of being established (Castro v Libertv Bus Co . ¢ 79AD2d 1014 [2d DeptI981]). In support of motion (004), S1. Catherine of Siena Medical Center has submitted, inter alia, an attorney's affidavit, copies of the summons and complaint, its answer and the plaintiff's verified bill of particulars as to S1. Catherine and the co-defendants; a certified copy of the plaintiffs decedent's medical records; a copy of the St. Catherine of Siena Medical Center emergency department roster dated March 2006; the affidavit of Ronni SoHazzo, M.D.; and the unsigned transcripts of the examinations before trial of Cynthia Weber dated September 12,2008, and Matthew Brackman, M.D. dated October 2, 2009. The unsigned copies of the deposition transcripts are not in admissible form as required by CPLR 3212 (see, Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 [2d Dept 2008J; McDonald v Maus, 38 i\D3d 727 [2d Dcpt 2007]; Pina v Flik IntI. Corp., 25 AD3d 772 [2d Dept 2006]), however, they are accompanied by proof of service of the transcripts pursuant to CPI ,R 3116, and arc therefore considered on this motion. The requisite elements of proof in a medical malpractice action are (I) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852 [2d Dept 1998J, app denied 92 NY2d 818). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury (see, Derdiarian v Felix Contracting: Corp., 51 NY2d 308 [1980 J; Prete v Rafla-Demetrious, 221 AD2d 674 [2d Dept 1996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury (see, Fiore v Galan!!, 64 NY2d 999 [1985]; Lyons v McCauley, 252 AD2d 516 [2d Dept 1998], opp denied 92 NY2d 814; Bloom v Citv of New York, 202 AD2d 465 [2d Dept 1994]). [* 3] Weber v Brackman Index No. 07-23265 Page NO.3 CYNTHIA WEBER Cynthia Weber testified to the extent that her deceased husband, Dennis Weber, was born on January 5, 1940. In November of 2005, he had a colonoscopy and was advised by Dr. Alpern that he "was not emptying out." On March 7, 2006, he contacted his internist, Dr. Gold, and was seen at Dr. Gold's office by the physician's assistant on March 8, 2006. He was sent for x-rays which he was told did not reveal any findings. She stated that on March 10,2006, her husband called Dr. Gold's office again and advised the physician's assistant that he wished to speak to Dr. Gold. Dr. Gold did not call back, so they went to the emergency department at St. Catherine of Siena as her husband was having excruciating abdominal pain and diarrhea of two days duration. At 51. Catherine of Siena, a CT scan was perfonned and they were subsequently advised that her husband might have a blockage. She and her daughter were told to go home, but after arriving home, she received a telephone call advising that her husband would need immediate surgery. Therefore, on March 11, 2006, at about 3 :30 a.m., her husband underwent surgery for a blockage which she was told was caused by scar tissue. Dr. Brathwaite advised her after completion of the surgery that everything went well. She first met Dr. Brackman at S1.Catherine of Siena Medical Center on March 10. 2006, but did not remember what they spoke about. Ms. Weber testified that her husband remained hospitalized at St. Catherine of Siena through March 19,2006, and was discharged to home on a liquid diet. After arriving home, he complained that his stomach was bothering him and he began retching. She called Dr. Brackman who returned her call at about 9:00 p.m., and advised her husband to come into the office thc following day at about I :00 p.m. on March 20, 2006. When they arrived, he was having severe stomach pains, so Dr. Brackman sent him to the emergency room at St. Catherine of Siena. She was told that the CT scan subsequently perfonned revealed that he had adhesions which would have to be scraped away. She believed that Dr. Brathwaite and Dr. Brackman performed the surgery the next day on March 21, 2006. Shortly thereafter, he began running a fever and developed sepsis as there was E. Coli contamination from feces. She called Dr. Brathwaite late at night and told him she was not happy with the way Dr. Brackman was handling the case, but he advised her that he and Dr. Brackman concurred on everything. Her husband decided to continue with Dr. Brackman. Ms. Wcber testified that her husband was taken to surgery again on March 23, 2005 to "clean him out." After that surgery, he had to have additional surgery to "close him up." She was advised that if they could not close the wound, thcy would have tq leave it open. Subsequently. Dr. Brathwaite advised her that he could not close the wound as her husband's abdomen was too distended, so he just cleaned him out. On March 29, 2006, Dr. Brackman performed surgery again to clean out the \vound and put in mesh, however, the \-\'ound was still left open aftcr this procedure. Her husband remained hospitalized until April 28, 2006, at which time he was discharged with the wound still open. She was instructed as to how to change the dressings. He had follow-up visits with Dr. Gold and Dr. Brackman. Dr. Brackman changed his dressing and asked him ifhe had returned to work, which they thought was kind of odd. Mrs. Weber testified that since surgery, her husband had been experiencing swelling in his left leg, so he was seen by Dr. Hormozi on a Friday. That night, he began feeling unwell and complained of abdominal pain. Ife began feeling progressively worse and asked her to call an ambulance. He was taken to S1. Catherine of Siena emergency department where a nasogastrlc tube was inserted. It was felt that he might have another blockage and he was admitted to the hospital. On the morning of May 29, 2006, her husband was advised that he would need another surgery for "blackened intestines" and that a section of his colon would have to be removed and a colostomy performed. She placed a call to Dr. Marion in the city who spoke to Dr. Brackman. Because they eouldn·t "get a crew," or enough staff for the surgery, it was not until hours later that Mr. Weber was taken to [* 4] Weber v Brackman Index No. 07-23265 Page NO.4 surgery. Dennis Weber died on the operating room table on May 29, 2006. Mrs. Weber stated that Dr. Brackman told her it \\'as because his heart stopped. MAITHEW BRACKMAN, M.D. Matthew Brackman testified that he is licensed to practice mcdicine in New York State and Florida and bccame board certified in general surgery in 2005. From June 2005 to June 2006, he was employed by Collin Brathwaite, M.D. as a general surgeon. His employment was terminated in June 2006 by Dr. Brathwaite when Dr. Bratwaite took a position as an employee at Winthrop University Hospital. Dr. Brackman stated he remembered Dennis Weber. He kncw that the immediate cause of his death was cardiac arrest, but he could not figure out what the other causes were, and he did not remember the possible causes he considered al the time. He discussed it with Dr. Brathwaite when Dr. Brathwaite was reviewing the decedent's chart, but could not remember the specifics of their conversation. lie testified that Dr. Brathwaite asked him ifhe contacted Mr. Weber's primary physician, and he told him he did not. He thought it was one of the reasons he cited for terminating him as Dr. Brathwaite didn't think he called Mr. Weber's primary care physician. Dr. Brackman testified that he was the admitting surgeon for each ofMr. Weber's admissions, bUl was an employee of Dr. Brathwaite. If Dr. Brathwaite ever stated to him what he wanted done, as his employee, he would say ok, if he did not have an objection from a medical point of view. They co~managed Mr. Weber's care and treatment. There were times that he asked Dr. Brathwaite's opinion concerning the care of Mr. Weber, however, he did not state what opinions he sought. Dr. Brackman continued that during the March 10,2006 hospitalization, Mr. Weber was diagnosed with a high-grade distal small bowel obstruction for which urgent surgery was needed and performed by him, as assisted by Dr. Seguerra, an independent physician. As there was massive distention orthe proximal small intestine, he had to spend some time considering how to decompress the loops without causing injury to the intestine. He stated that the massive dislention of Mr. Weber's intestine occurred because Mr. Weber waited an excessive amount of time, several days, before he presented to the emergency room. He also stated that he accomplished what he had hoped to by doing the surgery, relieving the obstruction, and closing his abdomen, with him surviving. He opined that Mr. Weber's massive obesity adversely affected his outcome and stated why. He also felt that Mr. Weber's generally poor medical condition, his age and the serious nature of his illness also affected his risk of surviving. Dr. Brackman continued that there was no type of ischemia or compromised blood flow to Mr. Weber's intesline at the time of that surgery, and that he did not cause any damage to the small bowel during the March 11, 2006 procedure. On March 13,2006, the dccedenl's abdomen was noted to be very distended. As of March 14'h, Dr. Brackman stated Mr. Wcber was doing pretty well. However, it was noted in the nursing nole that Mr. Weber was nauseous and having dry heaves and that Dr. Brackman ordered that the nasogastric lube bc reinserted and that he be medicated. Dr. Brackman then testificd that he thought Mr. Weber had an ileus or an obstruction. On March 15. Mr. Weber was having bilious drainage from his nasogastric tube, suggesting an obstruction of the stomach, indicating either an ileus or an obstruction somewhere distal to the stomach. Because the abdomen was distended, it was suggestive of an ileus. There were no bowel sounds, however, bowel sounds were notcd on March 16th, indicating the ileus ",vasresolving. Dr. Brackman testified that he considered the possibility of an ubslruction, but he did not do anything to rule out an ohstruction. However, on March 141h, Dr. Brathwaite had ordered an abdominal flat and upright x~ray, which was performed on March 141h or 15th, but Dr. Brackman testified lhat he did not know ifhe ever became aware of the findings [* 5] Weber v Brackman Index No. 07-23265 Page No.5 upon the reading of that x-ray. On March 11\ he stated, there was less abdominal distention, bowel sounds were present, flatus was being passed, and Mr. Weber was trying to drink. On March 18'\ liquid bowel movements appeared and bowel sounds were active. He discharged Mr. Weber home on March 19'h. It was Dr. Brackman's judgment that Mr. Weber did not have an ileus or an obstruction at that time. However, the following day, on March 20, 2006, Dr. Brackman saw Mr. Weber at his office and sent him to the emergency room for a CT scan of the abdomen and pelvis to evaluate him for an obstruction. When Dr. Brackman was shown the CAT can films from March 20, 2006, he stated that Mr. Weber's abdomen was more distended than on the May Il1h film, there were inflammatory changes in the right lower quadrant consistent with the recently operated area, the colon had more contents, there was more air, and the small bowel was massively distended with fluid. Dr. Brackman stated that it was difficult to state whether or not there was an obstruction. Dr. Brathwaite saw Mr. Weber in the emergency room on March 201b and admitted him to St. Catherine of Siena as Mr. Weber's colon was collapsed. An exploratory laparoscopy was performed by Dr. Brackman, assisted by Dr. Brathwaite, for a small bowel obstruction and lysis of "post operative" adhesions, at the distal jejunum, which Dr. Brackman testified was at a site higher up or more towards the mouth than the previous obstruction. He noted in his operative note that there was a small serosal tear of the distal jejunum, which he thought was caused by the massive dilation of the bowel which caused the serosa of the j~junem to rupture. He also testified that it could have torn when they manipulated the intestine during surgery. On March 22, 2006, Mr. Weber's abdomen was distended, which Dr. Brackman thought was from an ileus. He had a fever of 104.4, and was leaking some bloody fluid from the incision, which Dr. Brackman felt was not of any significance. On March 23, 2006, Mr. Weber was still febrile, had labored respirations, his abdomen was distended, and fluid was expressed from the midline incision. His white count was 30,0000. Dr. Brackman felt he was septic so Mr. Weber was intubated, and broad antibiotics were started. Dr. Brackman testified that Mr. Weber was in a dire condition on his last admission. He remembered having a discussion with the family; they wanted to discharge him as Mr. Weber's physician, because they were concerned that he had not recovered. Dr. Brackman thought the family may have thought he was too young. He saw Mr. Weber on the morning of his last admission after being advised by Dr. Brathwaite that he had been admitted by Dr. Vitolo, an independent physician covering for Dr. Brathwaite and Dr. Brackman. Dr. Brathwaite advised him that the CAT scan had been read by a radiologist and interpreted to show pneumatosis intestinalis, or free fluid in the abdominal cavity with a high-grade (near complete) bowel obstruction of the small intestine. Dr. Brackman testified that Mr. Weber whined from pain when he pressed on his abdomen, his white blood cell count was elevated to 20,000, and he was in renal failure. When all things were considered, he determined that there was an emergent need to perform surgery on Mr. Weber, consisting of an exploratory laparotomy and other possible surgeries, depending upon what he found upon exploration. lie set forth the possibi lities and the danger of a tear occurring in the intestine during surgery. Dr. Brackman stated a potential complication ofa tear was peritonitis, or an inflammation of the bowel, or infection which can lead to death. He continued that it could also cause renal failure, sepsis, organ failure, heart attacks, and wound infections, among other things. Dr. Brackman further stated that the family ,>vantcd him to contact a doctor in the city before Mr. Weber consented to the surgery. He did not remember the physician's name, but he stated that he did speak to the physician and advised him what he thought needed to be done. Dr. Brackman stated the physician agreed with him, that he advised the family of the same, and they consented to surgery. Dr. Brackman continued that he explained to Dr. Brathwaite that he had a very difficult time emotionally dealing with Mr. Weber's expiration. Dr. Brackman stated that when Mr. Weber died, he [* 6] Weber v Brackman Index No. 07-13165 Page NO.6 advised the family that the surgery seemed to go very well, that he had almost completed closing the abdominal incision, when Mr. Weber developed an arrhythmia for which CPR and advanced life saving protocols were initiated. They were 110table to reverse the arrythmia, and Mr. Weber died. Dr. Brackman testified that anyone is at risk for an arrythmia, but Mr. Weber was slightly more at risk due to his age, his general poor medical condition, including obesity, history of heart disease, and the intestinal obstruction. He continued that during bowel surgery, there can be a large shift in fluid and electrolytes which can often be the mode of death for people with bowel obstruction as the heart cannot compensate and it fails. When asked if he had an opinion with a reasonable degree ormedical certainty as to whether the changes in fluids and electrolytes on May 29, 2006 had anything to do with the arrythmia Mr. Weber developed, he stated he did not have an opinion. RONNI SOLLAZZO, M.D. Ronni Sollazzo, M.D. avers that he/she is a physician licensed to practice in New York State, but does not indicate whether he/she is board certified in any area of medicine. A copy of a curriculum vitae containing such information was not provided. Dr. Sollazzo states that in March 2006, he/she was employed by St. Catherine of Siena Medical Center to provide emergency medicine services in the emergency department of the hospital. Dr. Solla7.z0 admits to having no independent recollection of the plaintiffs decedent, but states that the emergency department medical record of March 10, 2006 was reviewed and that certain events transpired while treating the plaintif-rs decedent Dr. 5011azzo states he/she reviewed the nursing triage note and learned that Dr. Gold, a private attending physician at 5t. Catherine of Siena, was the medical internist for Mr. Weber, and that Dr. Gold had seen Mr. Weber that Tuesday. Dr. Sollaao states he/she completed the medical record and documented the clinical findings of the physical examination. Initial orders by Dr. Sollaz.zo included initiation of intravenous fluids, lab work, abdominal flat and upright x-rays and an abdominal sonogram. Dr. Sollazzo's impression was that of small bowel obstruction and he/she made a plan to obtain a surgical consultation and a CT scan of the abdomen with contrast. Dr. Sollazzo states that he/she called Dr. Gold's service that night and was unsure who returned the call at 10:40 p.m., either Dr. Harvey Lerner or Dr. Anna Lerner. In any event, Dr. Sollazzo states they discussed the case and the plan was for a surgical consultation. Dr. Sollazzo was advised by Dr. Lerner to contract Dr. Colin Brathwaite, a private attending surgeon. Dr. Brackman responded to that call at 10:53 p.m. Dr. Sollazzo discussed the plan and the need for a surgical consult with the family members present. Dr. SoHaao further set forth that when a patient does not have a primary care physician and needs a surgical consultation, that he/she directs the emergency department staff to telephone the surgcon on call for the emergency department. I [ere. 5t Catherine of Siena has failed to establish its prima faeie entitlement to summary judgment dismissing the complaint. The affidavit of Dr. Sollazzo has not set forth Mr. Weber's complaints upon presentation to the emergency department, the standard of care for treating Mr. Weber in the emergency room, and whether there was compliance with such standard ofeare and treatment. Neither has Dr. Sollazzo set forth the findings upon examination, the results of the various tests ordered in the emergency department, whether Mr. Weber's condition was properly diagnosed, the differentia! diagnoses made, if any, and any treatment employed. Accordingly, Dr. Sollazzo failed to establish that he/she and employees orSt. Catherine of Siena were not negligent, that they did not depart from the standard of care, and did not proximately cause any of the injuries of the plaintif-rs decedent. Dr. Sollazzo has not established that he/she is board certified or whether he/she qualifies to offer any expert opinion, and, in fact, has not offered any opinions. Additionally, Dr. Sollazzo has not commented on the care and treatment rendered to the plaintiffs decedent during his [* 7] Webcr v Brackman Index No. 07-23265 Page No.7 multiple admissions to S1. Catherine of Siena Medical Center. Neither has 51. Catherine of Siena established the appropriate standards for care and treatment by its employees during the plaintiffs decedent's multiple admissions. Accordingly, movant has not established prima facie that its employees did not depart from good and accepted standards of medical practice in its treatment of the plaintiffs decedent. A hospital or other medical facility is liable for the negligence or malpractice of its employees, however, that rule does not apply v,.. en the treatment is provided by an independent physician, as when the h physician is retained by the patient himself, unless the hospital knows that the patient is unaware orthe dangers and novelty of the medical procedure proposed to be performed (Birdell Hill v 51. Clare's HospitaL 67 NY2d 72 [1986]). A hospital generally cannot be held liable, other than derivatively, for another's malpractice. Thus, where there is no vicarious liability, the plaintiff must establish that the hospital, through its own agents, was guilty of malpractice or other tort concurring in causing the harm (fiortino v WenQ:er., 19 NY2d 401 [1967]; Belak-Redi v Bollengier, 74 AD3d 1110 [2"" Dept 20 1OJ; Welch v Scheinfeld, 21 AD3d 802 [1st Oept 20051). Here, 51. Catherine has established through the testimony by Dr. Brackman that he and Dr. Brathwaite were not employees of 51. Catherine. Thus, S1. Catherine of Siena Medical Center has demonstrated entitlement to summary judgment dismissing the complaint on the limited basis that it is not vicariously liable for any actions of Dr. Brackman and/or Dr. Brathwaite, who were independent practitioners and not employees ofSt. Catherine of5iena Medical Center. In opposition, the plaintiff has not raised a factual issue to preclude summary judgment on the issue that 51. Catherine of Siena Medical Center is not vicariously liable for the actions of Dr. Brackman and Dr. Brathwaite. To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence ofa triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendant's acts or omissions were a competent·producing cause of the injuries of the plaintiff (see, Lifshitz v Beth Israel Med. Ctr-Kings Highwav Div" 7 AD3d 759 [2d Dept 2004L Domaradzki v Glcn Cove OB/GYN Assocs., 242 AD2d 282 l2d Oept I997J). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce contllcting medical expert opinions. Such credibility issues can only be resolved by ajury" (Bene:ston v Wang. 41 AD3d 625 [2d Dept 2007J). While the defendant S1. Catherine of Siena has not established prima facie entitlement to summary judgment dismissing the complaint against it and its employees, the plaintifThas submitted medical expert opinions which would preclude summary judgment on that issue. The plaintifrs expert has set forth his/her qualifications as an expert in the affirmation which has bcen review·cd by this court. The plaintiff's expert has set forth the records and materials reviewed and has opined with a reasonable degree of medical certainty that St. Catherine of Siena Medical Center, Dr. Matthew Brackman and Dr. Collin Brathwaite departed from accepted standards of care with regard to the care and treatment rendered to the decedent Dennis Weber, which departures were substantial contributing factors in the development of recurrent adhesions, sepsis, cardiac arrest and death. The plaintiffs expert further sets forth the bases for such opinions and also points out that Dr. Sollazzo docs not discuss the standard of care applicable in this case. The plaintiff's cxpert opines that whcn a bowel obstruction is suspected, whether it be an unresolved or a new obstruction following a repair procedure, that it was a deviation from good and accepted standards of care not to conclusively rule out the presence of that suspected small bowel obstruction. The plaintiffs expert opines that the multiple surgeries that Mr. Weber underwent following the initial surgery of March 11,2006 were necessitated by the fact that the obstruction(s) that continued to appear were never properly addressed. [* 8] Weber v Brackman Index No. 07-23265 Page No.8 The failure to properly rule out the obstruction seen on diagnostic studies on March 11,2006 was a departure by the defendants and was a substantial contributing factor in the injuries subsequently suffered by the plaintifrs decedent. The plaintiffs expert further opines that it was a departure from the accepted standard of care to discharge the plaintiff's decedent on March 19,2006 prior to ruling out the presence of an obstruction following the March 11, 2006 procedure. The x-ray of March 14, 2006 demonstrated the obstruction which was present when Mr. Weber presented to the emergency room on March 20, 2006, and was present at his discharge on March 19,2006. The plaintiffs expert states that a CT scan should have been ordered to confirm whether or not the obstruction resolved prior to discharging Mr. Weber, and the failure to do so was a departure from the standard of care. The plaintiff's expert also opines that it was a departure on the part orthe nursing staff of St. Catherine of Siena Medical Center to fail to follow physician's orders to make Dr. Brackman aware of the results orthe March 14,2006 x-rays to enable Dr. Brackman to properly address the obstruction. The plaintiffs expert also opines that it was a departure from the accepted standard to care to discharge Mr. Weber on April 28, 2006 prior to ordering and performing a CT study to confirm that the obstruction had resolved, as the obstruction which the plaintiff's decedent presented with on May 28, 2006, was the obstruction demonstrated on the diagnostic studies taken during the prior admission and which was present on April 28, 2006. The plaintiffs expert opines that it was a further departure from the accepted standard of care to fail to obtain a second opinion from a more experienced surgeon once it became obvious that the attempts at various repairs were failing so that the decedent's condition could be properly addressed. The plaintiffs expert opines that each of these departures was causally related to, and caused and/or contributed to the death of Mr. Weber. If appropriate standards of care had been met by the defendants, his small bowel obstruction would have been properly treated, thereby avoiding the ensuing multiple surgeries, infection, sepsis, and the stress on his body, which resulted in his cardiac arrest and death. Proper management and treatment of the plaintiffs decedent during the severa! hospitalizations would have resolved the obstruction without the need for the subsequent surgeries. The departures permitted the decedent's condition to progress to the point where he suffered from the infection, sepsis and ultimately, cardiac arrest and premature death. Based upon the foregoing, it is determined that the plaintiff has raised factual issues which preclude summary judgment on the issues of liability and proximate cause as it relates to all the defendants. However, the plaintiff has raised no factual issue as it relates to S1.Catherine of Siena's vicariously liability for any acts of negligence by the defendants Dr. Brackman and Dr. Brathwaite. It has been demonstrated that Dr. Brackman and Dr. Brathwaite are independent, attending physicians who were not employees of S1.Catherine of Siena Medical Center. Thus, movant is not vicariously liable for any departures relating to the care and treatment rendered by these defendant attending physicians to the plaintiff's decedent. The arguments set forth in the defendant's reply arc without merit. The defendant is merely speculating that the plaintiffs expert's affirmation is improperly notarized as an out of state affidavit and has demonstrated no basis for such claim. This court has reviewed the unredacted expert affirmation provided to this court for in camera inspection, and, except for the redacted sections, finds the affirmation to be identical to the affirmation provided to the defendants. Such unredacted copy of the expert's affirmation has been returned to counsel for the plaintiff. Funher, the improper submission of the expert physician's affirmation in defendant's reply is not [* 9] Weber v Brackman Index No. 07-23265 Page No.9 considered by this court. On a motion for summary judgment, such failure to submit the affidavits or affirmations with the moving papers renders the application insufficient, and such affidavits are to be given no consideration by the court entertaining the motion for summary judgment, when received in a reply (Canter v East Nassau Medical Group, 270 AD2d 381[2d Oept 2000]; Sherrer v. Time Equities, Inc. and Emilia Grocery, Inc. v. Time Equities, Inc., 218 i\.D.2d 116 [1st Oept 1995J). The function of a reply paper is to address arguments made in opposition to the position taken by the movant and not to penn it the movant to introduce new arguments in support of, or new grounds for the motion (In the Matter of the Application of Veronica Montgomerv-Costa v The Citv orNew York, 2009 NY Slip Op 29461, 2009 Misc Lcxis 3116 [Sup Ct, New York County 2009]). Nor docs it avail defendant to shift to the plaintiff, by way ofa reply affidavit, the burden to demonstrate a material issue of ract at a time when the plaintiff has neither the obligation nor the opportunity to respond absent express leavc of court (Winegrad v City of New Yark, supra; Azzopardi v American Blower Corporation, 192 AD2d 453 [I st Oept 1992]). In view of the foregoing, the motion by 51. Catherine of Siena Medical Center for an order granting summary judgment dismissing plaintiffs complaint as asserted against it is granted only to the extent that it is determined that Dr. Brathwaite and Dr. Brackman, were private attending physicians and not employees of SL Catherine of Siena Medical Center, and thus, it is not vicariously liable for their alleged malpractice and acts of negligence; the application is denied insofar as it applies to allegations of negligence or malpractice by the employees of S1. Catherine of Siena Medical Center. Dated: February 10,2012 ON. JOSEPH C. PASTORESSA fiNAL DISPOSITION X NON-FINAL DISPOSITION
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