Lapiana v Roche

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Lapiana v Roche 2012 NY Slip Op 32000(U) July 25, 2012 Supreme Court, Suffolk County Docket Number: 08-27212 Judge: Thomas F. Whelan 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] SIIORT fORM ORDER Copy INDE)( No. CALNo. 08-27212 11-02549MM SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 5-2-12 (11007) MOTION DATE 5-]- I2 (#008) MOTION DATE 5-16-12 (#009) MOTION DATE 5-21-12 (#010) AD.!. DATE 6-25-12 Mot. Seq. # 007 -MG # 008 - MG # 009- MG # 010 -)(MG ----------------------------------------------------------------)( AN1'HONY LAPIANA, as Administrator of the Estate of JOHANNA LAPIANA, Deceased, and ANTHONY LAPIANA, Individually, Plaintiffs, SILBERSTEIN, AWAD & MIKLOS, P.C. Attorney for Plaintiffs 600 Old Country Road, Suite 412 Garden City, New York 11530 GEISLER, GABRIELE & MARANO, LLP Attorney for Defendant Roche 100 Quentin Roosevelt Blvd., Suite 100 Garden City, New York 11530 HELWIG HENDERSON RYAN & SPINOLA, P.c. Attorney for Defendants Gallagher, Chatalbash & Western Suffolk Gastroenterology One Old Country Road, Suite 428 Carle Place, New York 11514 - against - ROBERT AB. ROCHE, M.D., JOHN F. GALLAGHER, M.D., STEVEN SAMUELS, M.D., KENNETH D. GOLD, M.D., ROBERT T. CHATALBASH, M.D., STEVEN SAMUELS, M.D., pc., JOHN F. GALLAGHER, M.D., P.c., SUFFOLK INTERNAL MEDICINE ASSOCIATES, P.c., HEMATOLOGY ONCOLOGY ASSOCIATES OF WESTERN SUFFOLK, P.c., WESTERN SUFFOLK GASTROENTEROLOGY, LLP, NORTH SIIORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC., and SOUTHSIDE HOSPITAL, Defendants. ---------------------------------------------------------------)( FUMUSO, KELLY, DEVERNA, SNYDER, et al. Attorney for Defendants Samuels & Suffolk fotemal Ii 0 Marcus Boulevard Hauppauge, New York 11788 SANTANGELO BENVENUTO & SLATTERY Attorney for Defendants Hematology Oncology Associates & Goldman 1800 Northern Boulevard Roslyn, New York 11576 BARTLEH, McDONOUGH & MONAGHAN LLP Attorney CorDefendant North Shore-Long Island & Southside Hospital 670 Main Street Islip, New York 11751 [* 2] Lapiana v Roche Index No. 08-27212 Pagc 2 Upon the following papers numbered I toR read on these motions for summary judgment; and this cross mOlion to preclude; Notice ofMotian! Order to Show ("Juse and supponing papcI·s (007) 1-20: (008) 21-41; (009) 42-07: Notice of Cross Motion and supporting papcrs (010) 68-71; Answcring i\ft1davits Ilnd supporting papers _: Replying Affidavits and supporting papers _' Other _: (,lI.d "ftc, hedlill",COtiiiSci ill suppO.l "lid opposed to tile Iiloliall) it is. ORDERED that mOlion (007) by defendants. North Shore-Long Island ./ewish lIealth System. Inc. and Southside Hospital. pursuant to CPLR 3212 for sUlllmary judgment dismissing the complaint and all cross claims asserted against them is granted with prejudice; and it is further ORDERED that motion (008) by defendants, John F. Gallagher- M.D., and John F. Gallagher. M.D_, P.c., pursuanl to CPLR 3212 for summary judgment dismissing the complaint and all cross claims asserted 'lgainst them is granted with prejudice; and it is further ORDERED that motion (009) by defendants. Steven Samuels, M.D., Steven Samuels, M.D., P.C.. and Suffolk Internal Medicine Associates, P.c., pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims asserted against them is granted with prejudice; and it is further ORDERED that motion (0 I0) by the plaintiff, Anthony Lapiana, pursuant to CPLR Article 16 to preclude the remaining defendants from seeking apportionment of liability and contribution against any defendant lor whom summary Judgment has been granted, is granted, and the remaining defendants are precluded l1·omasserting the limited liability provisions provided pursuant to CPLR Article] 6 against defendants. North Shore-Long Island Jewish Health System, inc. and Southside Hospital, John F. Gallagher, M.D., John F. Gallagher. M.D., P.C, Steven Samuels, M_D., Steven Samuels, M.D., P.c., and Suffolk Internal Medicine Associates, P .c., at the lime of trial. In this action premised upon the alleged medical malpractice and lor the wrongful death of the plaintiffs decedent, Johanna Lapiana, the complaint sets forth causes of action premised upon the negligent departures from good and accepted standards of care and treatment of plaintiffs decedent, by the defendants, from October 19,2006 through October 27, 2006, lack ofinforIned consent, and a derivative claim on behalf of Anthony Lapiana, decedent's spouse. [t is alleged that the defendants were negligent in their care and treatment of Johanna I.apiana in failing to properly diagnose and treat her for an infected and gangrenous gallbladder, and sepsis, and failing to timely perform surgery and administer antibiotics, as well as other nccessary and indicated modalities for proper treatment of her condition. causing her condition to worsen and deteriorate, resulting III transfusions. abdominal pain. endotracheal intubation, percuctaneous drainage of the gallbladder, acute respiratory failure, biventricular failurc. myocardial infarction. multi-organ failure, cardiac arrest, cerebral hypoxia, bleeding, and gangrene ofthc gall bladder. culminating in her death on October 27,2006. The proponent of" a summary .iudgment motion must makc a prima f~H:icshov.:ing of entitlemcnt to .iudgmcnt as a matter of" law, tendering sufficient evidence to eliminate any material issues or fact from the casco To grant sumlllary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v AS.'iOciated Fur Mfn., 46 NY2d ] 065. 416 NYS2d 790 [J 979];Si/lmun v Twentieth Century-Fox Film Corporation, 3 NY2d 395. 165 NYS2d 498 lI957]). The movant has the mitial burden of proving en!itlcmcnt to summary judgment (Winegrad v N. Y.U. Medical Center, 64 NY2d 85], 487 NYSld 316 [19851). Failure to make stich a showing requires denial of the motion. regardless of the sufficiency of the opposing papcrs (Willegnul v N. Y.U. Medical Center. supra). Onee 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 adl1llSsib1cfarm ...and must "show facts sufficient to reqUlre a trial of any issue of j~1CC (CPLR [* 3] Lapiana v Roche Index No. 08-27212 Page 3 3212[b]; Zuckerman v City of New York. 49 NY2d 557. 427 NYS2d 595 [19801). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d ] 014,435 NYS2d 340 [2d Dept 1981 I). The requisite clements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice. and (2) evidence that such departure was a proximate cause of injury or damage (Holton 1I Sprain Brook Manor Nursing fJome, 253 AD2d 852, 678 NYS2d 503 [2d Dcpt 19981,app denied 92 NY2d 818,685 NYS2d 420 I] 999]). To prove a prima facie case of medical malpractice, a plaintiff must establish thaI defendant's negligence was a substantial factor In producing the alleged injury (see Dertliariall v Felix: Confracting Corp., 5] NY2d 308, 434 NYS2d 166 980); Prete v Rafla-Demetrious, 224 AD2d 674, 638 NYS2d 700 L2dDept 1996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is llecessaJ)' to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause ol'the plaintiff's injury (see Fiore v Galling, 64 NY2d 999, 489 NYS2d 47[1985]; Lyons v McCauley, 252 AD2d 516, 517, 675 NYS2d 375[2d Dept], opp denied 92 NY2d 814,681 NYS2d 475 [19981; Bloom v City of New York, 202 AD2d 465, 465, 609 NYS2d 45 [2d Dcpt 1994D, n To rebut a prima faeie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence of a 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 compctent-producing cause of the injuries of the plaintiff (see Lifshitz v Beth lsmel Med. Crr-Kings Highway Div.. 7 AD3d 759, 776 NYS2d 907 pd Oept 2004]; DOnllll"lldzki v Glen Cove OB/GYN Assocs" 242 AD2d 282, 660 NYS2d 739 [2d Dept 1997]), In motion (007), defendants North Shore-Long Island Jewish Health System, Inc. and Southside Hospital, have submitted the affidavit of Thomas H. Magnusun, M.D. in support of their applieationto dismiss the complaint and cross claims asserted against them. Dr. Magnusun avers that he is licensed to practice medicine in the State of Maryland and is board certified in surgery. He set forth his educational background and medical experience, and the materials and records which he reviewed. He opined with a reasonable degree of medical certainty that the doctors. nurses, and staff at North Shore-Long Island .Jewish Health System, Inc. (NSL1J) and Southside Hospital (Southside) did not deViate from the accepted standard of care in medicine in the care and treatment of Johanna Lapiana, and that the care and treatment rendered by them did not proximately cause her alleged mj uries and death. Dr. Magnusun set lorth that Johanna Lapiana was hospitalized at Southside llospital from October 19, through October 27, 2006. lie set forth her medical history of breast and skin cancer, diabetes, hypertension, chronic atrial fibrillation. chronic anemia. thalassemia, hysterectomy, and spinal surgery. She also had mitral valve replacement after a stroke and was maintained on CoumadiJ! as prescribed by Dr. Donnelly, her hematologist. Defendant Dr. Robert Roche. certified in internal medicine, began treating plaintitT on April 25, 2005. On October] 6, 2006. Dr. Roche saw and examined Ms. Lapiana for complalllts of abdominal pain, fever, and nauseousness. His clinical impression was abdominal pain, questionable diverticulitis, or GERD, for which he ordered a CT scan of the abdomen, and referred her 10 be seen immediately by Dr. Mary Thomas, her gastroenterologist. Dr. Thomas ordered a CT of the gallbladder and admitted her through the emergency room to Southside Hospital on October 19.2006, at about 5:00 p.m. The CT scan demonstrated that she had acute cholecystitis (inflammation of the gallbladder). Dr. Roche was her private attending physician during this admission to Southside Hospital. Dr. Gallagher's group vvascalled 111 for a surgical consultation. Upon admission, her prothrombin time was 60.1 (normal 9.9-13,2), INR 3.88 (normal .88-1.15)~ hemaglobin 8.1 [* 4] Lapiana v Roche Index No 08·27212 Page 4 (normal 12.0-16): and a blood culture was negative for growth after 48 hours and after five days. An ultrasound of the abdomen on October 19, 2006 indicated hepatomegaly, marked splenomegaly, and a thickened gallbladder wall with gall stones. Further evaluation with a HIDA scan was recommended. A chest x-rayon that date revealed that the decedent had an enlarged heart and linear atelectasis, or scarring at the left lung base. Dr. Sacca saw her concerning her complaints of abdominal pain, and agreed wilh the plan for a I-1IDAscan. Dr. Sacca indicated the need to hold the Coumadin and provide Heparin after the INR normalized. Thus, she was not administered Coumadin during this hospital admission. Dr. Magnusun continued that Dr. Gold, who was called in by Dr. Roche for a hematology consult on October 20, 2006. felt that holding the Coumadin was appropriate as she was above the therapeutic lNR. However, Dr. Gold felt that although a transfusion was not urgent, it was necessary, so he wrote an order to transfuse the plaintilT's decedent with 2 units of packed cells, which Ms. Lapiana refused until the evening of October 20, 2006. Dr. Roche called in Dr. Catalbash, a partner at Gastroenterology Associates who was board certified in gastroenterology and internal medicine, for a gastroenterology consultation on October 20, 2006. Dr. Catalbash indicated a need to wait for the INR to be normalized before a cholecystectomy (removal of the gall bladder) could be safely performed. His partner ordered lnvanz, a broad spectrum antibiotic, to treat the cholecystitis. Dr. Roche called a cardiac consultation by Dr. Reich on October 20, 2006. Dr. Reich found no evidence of congestive heart failure or acute coronary syndrome. Atenolol was prescribed for blood pressure control. On October 21,2006, Dr. Catalbash agreed with the plan for a cholecystectomy once the PTIINR corrected. Vitamin K was given due to mild hemorrhoidal bleeding. Dr. McCormick, also a cardiologist, saw the plaintiffs decedent on that date and advised that surgery could not be done due to the INRIPT. Due to difticulties starting an intravenous in the plaintiffs decedent's peripheral veins, she had no IV access on October 22,2006, as noted by Dr. Roche, Dr. Reich, and Dr. Catalbash. Thus, she received no intravenous antibiotic. Dr. Catalbash was askecl by Dr. Roche to re-evaluate the plaintiff's decedent on October 22, 2006 due to increased right upper quadrant pain. Dr. Catalbash ordered a hematology re-evaluation for fresh frozen plasma administration to bring down the PT so surgery could be performed. However, opined Dr. Magnusun, the standard of care did not require fresh frozen plasma to be administered to bring down thc clotting time, and the patient's risk had not changed. She was stable, she was not septic, and she was being followed by gastroenterology and surgery. Dr. Chatalbash also ordered an increased dose of Vitamin K for the next three days to completely, and more rapidly, reverse the effects ofCoumadin, though the need for maximal anticoagulation without lapses secondary to her prosthetic valve, atrial fibrillation, and anticardiolipin antibody, were noted. Dr. Roche was apprised by nursing staff of the INR or J.77 and PT 01'23 and PTT of35.1, so the Vitamin K was held. That evening, Heparin was started as surgery was planned. Dr. Sacca decided to remove her gall bladder as soon as she was cleared by cardiology. Dr. Gold's partner, Dr. Hyman, saw the plaintiffs decedent on October 23. 2006. The plan was for the surgel)' to be performed on October 24.2006, as she had been cleared by Dr. Kirschner. the cardiologist. On October 23.2006. the plaintilT's decedent signed the consent for an exploratory laparoscopic. possible open. eholecystectomy_ and insertion of a triple lumen catheter. Ilowever, at 11:20 a.m, the nursing staff was unable to obtain the plaintiffs decedent's blood pressure, her skin was pale, and her fingertips and nail beds were bluish. Thus, stated Dr. Magnusun. she was not considered to be medically stable to proceed with surgical intervention, despite having been converted to llcparin. mood work at 3: I 0 p.m. was suggestive of a myocardtal infarction. She was transferred to Intensive Care and intubated at 6: 15 p.m. on October 23. 2006. Dr. Samuels was called in by Dr. Roche for an infectious disca<;econsultation that day. Dr. Samuels concluded [* 5] Lapiana v Roche Index No. 08-27212 Page 5 that she was on appropriate antibiotics, which hc renewed. However, stated Dr. Magnusun. Dr. Samuels' concern was that the plaintiff's decedent might have early gangrene of the gallbladder, based on a white blood cell count 01'20.000. and that she had an infection secondary to an intra-abdominal sepsis, likely due to gallbladder disease. Dr. Samuels felt she should go to surgery as soon as she was medically stable. Dr. Magnusun continued that on October 24. 2006, cardiac markers confirmed an acute myocardial infarction. Dr. Gallagher, a partner at Great South Bay Surgical Associates and Vascular Lab, then became involved in the plaintitPs decedent's care and treatment. lie determined that the plaintiff's decedent was in septic shock secondary to a problem referable to acute cholecystitis. She was noted to be intubated, with a blood pressure oj" 80/50, and central venous access had to be established. Dr. Magnusl.ln, stated that when a patient is therapeutically anticoagulated, there is an Increased risk of bleeding if one attempts to place a percutaneous central catheter. Thus, Dr. Gallagher stopped the Heparin and placed a triple lumen catheter in the right femoral vein under sonocontroJ. A Quinton catheter was placed in the right femoral artery. These procedures were done without incident. An echocardiogram revealed she was in biventricular failure, and was considered to be too unstable to undergo gallbladder surgery. Dr. Magnusun stated that on October 25, 2006, Dr. Roche documented that she had generalized anasarca (swelling) with poor urinary output. Her abdomen was distended with no bowel sounds. The plan was for renal consultation with possible renal dialysis. Dr. Roche consulted with cardiologist, Dr. McCormick, and pulmonologist, Dr. Zwang. Her overall prognosis was poor. Because her heart ejection fTaction was at 15%, due to the biventricular failure, she was noted to be unable to survive surgical intervention. Dr. Magnusun stated that Dr. Samuels felt that at no time between October 23d and 25~'was the plaintiffs decedent stable enough medically for gallbladder surgery to be performed. On October 26,2006, Dr. Roche spoke with the decedent's family. He noted she had no urinary output. She had atrial fibrillation, was not assisting the respirator, and was not responding to painful stimuli. On October 26, 2006, informed consent was obtained for a bedside cholecystostomy (a procedure to drain fluid from the gallbladder). Dr. Kranz, the intcrvcntional radiologist, placed the percutaneous catheter to aspirate the biliary drainage from the gallbladder, without complication. Due to her poor prognosis, a Do Not Resuscitate order was executed. The plaintiffs decedent died on October 27, 2006. 13ased upon his review ol'the records, Dr. Magnu::.:un opined that there are no bases upon which to conclude that there were any departures from the standard of care by the nurses. doctors, and staff at Southside HospitallNorthShore-LlJ. Ile continued that all the prothrombin times were done and checked continuously; all blood work was timely performed; coagulation rates were properly monitored: the plaintiffs decedent was not permitted to become dehydrated; all medications were timely and properly administered or held as ordered by the physicians, including Coumadin and Heparin; all reasonable efforts were made 10 maintain and restart intravenous access; antibiotics. as ordered by the physicians, wcre appropriately administered; the decedent's physicians were timely notitied orall blood work, ineluding INR levels: gallbladder disease was timely and appropriately diagnosed: the hospital record is devoid of any evidence to support that the hospital failed to hire and adequatcly train competent personnel, and that privileges were granted to qualified and competent physicians: necessary and proper diagnostic tests were ordered and completed timely and properly; percutaneous catheter drainage of the gallbladder was performed by Dr. Gallagher and Dr. Kranz. and nol by hospital stafr or personnel. thus any allegation that the hospital staff improperly performed such procedure is without merit or basis; medical 1115toryand facts were properly ascertained, chat1ed and considered by the hospital staff; Vitamin K was timely and appropriately administered; consultations were timely and appropriately made; the decision of whether or not to proceed with surgery rested with the physicwn and not the hospital stafL lNR levels were [* 6] Lapiana v Roche Index No. 08-27212 Page 6 properly reduced to pemlit the administration of Heparin; no autopsy was performed. therefore it is unknown whether or not the plaintifTs decedent had gangrene of the gallbladder. thus such claim is unsupported by the record: that the decedent required surgery was charted. but she remained too unstable medically to perfonn such surgical intervention; and whether blood was to be transfused, or fresh frozen plasma or packed red cells to be administered, was a determination to be made by the physicians, and not the hospital staff who did no1 delay in administering the same as ordered. The family and patient were made aware of all reasonable risks. Dr. Magnusun set forth the basis for each opinion. Rased upon a review of the admissible evidence, and the expert opinion or Dr. Magnusun, it is determined that North Shore-Long Island Jewish Health System, Inc. and Southside Hospital have demonstrated prima facie cntitlemcnt to summary Judgment dismissing the complaint. The plaintilT docs not oppose this application and has thus failed to raise any factual issue to preclude summary judgment from being granted. Accordingly, motion (007) is granted and the complaint and all cross claims asserted against North Shore-Long Island Jewish Health System, Inc. and Southside Hospital arc dismissed with prejudice. In motion (008), defendants John F. Gallagher, M.D., and John F. Gallagher, M.D., P.c., have submitted the expert affirmation of Evan Geller, M.D. who affirms that he is licensed to practice medicine in New York and is board certified in general surgery with a subcertification in critical care. He set forth his education. training, and experience in medicine, and the records and materials which he reviewed. He sets forth his opinions with a reasonable degree of medical certainty based upon his having treated hundreds of patients for gallbladder disease. He stated that he has frequently performed cholecystectomies. Dr. Geller set forth the moving defendants' involvement with the decedent's care and treatment while she was hospitalized. It is Dr. Geller's opinion that patients on advanced life support benefit from long-term central access as it facilitates the administration oflifc+sustaining fluid, parenteral nutrition, and intravenous medication administration, and decreases the risk of infection and discomfort associated with repeat venipuncture. He continued that the standard of care requires that anticoagulants such as Heparin be held prior to attempting to insert central venous and arterial catheters to avoid the risk of bleeding from the procedure. Thus, he opined. it was proper and consistent with good and accepted medical and surgical practice for Dr. Gallagher to hold the I [eparin for insertion of the catheters, which was accomplished without complication. He continued that Dr. Gallagher promptly responded and cared for the patient when he was notified. Dr. Geller continued that Dr. Gallagher's determination that the patient was too unstable to undergo an open or laparoscopic cholecystectomy due to her hemodynamic instability, systolic blood pressure of85/60 from the myocardial infarction. was proper and consistent with good and accepted surgical practice. He opined that Dr. Gallagher's recommendation for cholecystostomy. as an alternative to open or laparoscopic cholecystectomy, was prudent. reasonable. and within the standard of care in the surgical community based upon the patient's presentation. physical examination findings, including abdominal tenderness in the right upper quadrant upon deep palpation. and diagnostic and blood work results. He continued that cholecystostomy was necessary. indicated. and carried out in a manner consistent with good and accepted surgical practice. Dr. Clallagher properly reviewed the decedent's records, performed a thorough and proper physical examination. and properly communicated and collaborated with the patient's other anending specialists regarding his rccommcndation for pcrcutancoous cholecystostomy. Dr. Geller added that Dr. CJaliagher timely contacted the interwntional radiologist, Or. Kranz. to requcst the bedside cholecystostomy. which was timely performed just one and one half hour following Dr. eiallagher's request. [* 7] r ,apiana v Roche Index No. 08-27212 Page 7 Dr. Geller concluded that during the decedent's admission from October 19, 2006 through October 27, 2006, that Dr. Gallagher, M.D .. and Dr. Gallagher, M.D, P.c., did not commit any allirmative acts of negligence and/or medical malpractice. or omit any care and treatment. that proximately caused injuries or the death of the plaintiffs decedent. Based upon the foregoing, John F. Gallagher, M.D., and John F. Gallagher, M.D., P.c. have established prima facie entitlement to summary judgment dismissing the complaint. The plaintiff has not opposed this application and has thus failed to raise a factual issuc to preclude summary judgment from being granted herein. Accordingly, motion (008), which seeks dismissal of the complaint and all cross claims as asserted against John F. Gallagher, M.D., and John F. Gallagher, M.D., P.C., is granted. In support of motion (009), defendants, Steven Samuels, M.D., Steven Samuels, M.D., P.c., and Suffolk Internal Medicine Associates, P.C" have submitted, inter alia, the corrected affirmation of their expert physician, Alan A. Pollock, M.D., who affirms that he is a physician licensed to practice medicine in New York and is board certified in internal medicine and the sub-specialty of infectious diseases, and further board certified by the National Board of Medical Examiners. Dr. Pollack set forth his education and experience, and the materials and records which he reviewed. He presents his opinions based upon a reasonable degree of medical certainty. It is Dr. Pollack's opinion that Steven Samuels, M.D., Sleven Samuels, M.D., P.c., and Suffolk Internal Medicine Associates, P.c., who had seen the plaintiff's decedent for an infectious disease consult, acted in accordance with the accepted standards of medical care and trcatment, and that they did not proximately cause the injuries to, and death of, the plaintiffs decedent. Dr. Pollack set forth the decedent's history and presentation to Southside Ilospital and the relevant course of treatment during her admission thereto. He continued that on October 23, 2006, when the decedent was seen by Dr. Samuels in the intensive care unit, he noted that she had a history of recent diagnosis of cholecystitis. and had been seen for cardiology, hematology/oncology, and gastroenterology consults. He noted her past medical history, inclusive of a hypercoagulable state with anti-cardiolipin antibodies, and that she was maintained on Coumadin. Dr. Pollack set forth the examination performed, the findings upon examination, and that he noted the patient was currently on an appropriate broad spectrum intravenous antibiotic, Invanz, at a dosage of 1000 mg daily. It was Dr. Samuel's impression that, although the plaintifrs decedent was on an appropriate antibiotic, given her white blood cell count 01'20,000, she had early gangrene of the gall bladder. Dr. Samuels further recommended that she should have surgery as soon as she was medically stable and cleared by cardiology. He continued that although Dr. Samuels fclt thal a cholecystectomy was needed as soon as possible, that it must be tempered by the fact thai she may have had an acute myocardial infarction. Thus. cardiology would ultimately make the decision on her clearance for surgery, and that it should be accomplished as soon as possible. Antibiotics were to be continued and her condition monitored. Her prognosis was guarded. Dr. Pollack continued thal on Octobcr 24, 200G, Ms. Lapiana was seen by Dr. Samuels' partner. nOI1pany Dr. Lenefsky_ who revicwed that the blood cultures werc ncgative, and that the ~iection fraction orher heart' was 10-15%, thus she would not have been able to survive surgical intcrvention. He noted that a cholecystostomy to drain fluid !"i'omthe gallbladder. had bcen performed the night beforc. When Dr. Samuels saw the plaintiffs decedent on October 26, 2006, he reduced the antibiotic Invanz to 500 mg daily due 10 her kidney dysfunction. He assessed that she had septic shock as she had multi~orgall Cailure with shock involving the liver, lung, and kidneys. She was also suffering from anoxic encephalopathy. He noted her prognosis to be [* 8] Lapiana v Roche Index No. 08-27212 Pagc 8 grave. On October 27. 2006, hc noted the blood cultures showed coagulase-negative staphylococci, contaminants from her skin. Ms. I.apiana subsequently expired on October 27. 2006. Dr. Pollack set forth that all the care and treatment provided by Dr. Samuels confonned in all respects with accepted medical practice. His role as an infectious disease consultant was to select the appropriate antibiotic for the treatment oCthe cholecystitis, and she was prescribed a broad spectrum antibiotic which is used to treat bacteria that would cause cholecystitis. He continued that Dr. Samuels appropriately ordered blood cultures which were negative, indicating that the antibiotic therapy was correct. When she was noted to have kidney dysfunction, he appropriately ordered a reduced dosage of the antibiotic, and also ordered a Vancomycin level. Dr. Pollack further opined that there was nothing in Dr. Samuels' care and treatment of the plaintiff's decedent which was the proximate cause of any of the pJainti rf's decedent's alleged injuries, or her death. Dr. Pollack set rorth the bases for his opinions. Based upon the roregoing, Steven Samuels, M.D., Steven Samuels, M.D., P.c., and Suffolk Internal Medicine Associates, P.C., have established prima facie entitlement to summary judgment dismissing the complaint. The plaintiff has not opposed this application and has failed to raise a factual issue to preclude summary judgment from being granted to the moving defendants. Accordingly, motion (009) by Steven Samuels, M.D., Steven Samuels. M.D .. P.C, and Suffolk Internal Medicine Associates, P.c. ror summary judgment dismissing the complaint and all cross claims asserted against them is granted. Turning to motion (010), the plaintiff seeks an order precluding the remaining defendants from seeking apportionment of liability and contribution against any defendant for whom summary judgment has been granted. None of the defendants have submitted expert affirmations asserting liability against any co-defendant against whom the action has been dismissed, thus, the limited liability protection arrorded by Article 16 as 10 any remaining co-defendant at the time of trial is precluded as it relates to those defendants who have been granted summary judgment herein (vee, Demhitzer v BroadJVall Management Corp, 2005 NY Slip Op 50303U, 6 Misc 3d I035A. 800 NYS2d 345, 2005NY Mise LEXIS 420; citingHaJllJ(l v Ford Motor Co., 252 AD2d 478, 479,675 NYS2d 125l2d Dept l'1998J). Here, it would be cold comf0l1 to the dclcndants against whom summary judgment has been granted, and to the plaintin~ irthe remaining derendants were permitted to assert the limited liability protection afforded by Article 16 against the defendants where the complaint and cross claims have been dismissed against thcm. Each defendant has had the opportunity to present expert testimony against any co-defendant at this time of summary judgment, and havc failed to do so. Thus, they are precluded rrom doing so at the time or trial. Accordingly. motion (0 I0) by the plaintitt" is gralllcd and the remaining dclcndants arc prccludl'd from asserting the limited liability protection afforded by CPLR Article 16 for apportionment of liability or contribution against those defendants who have been granted summary judgment he in. ,, j ! Duted: TJ lOMAS F. WIiELAN, .I.S.C.

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