Orlando v Elliott

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Orlando v Elliott 2012 NY Slip Op 32201(U) August 16, 2012 Sup Ct, Suffolk County Docket Number: 08-10276 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] INDEX No. CAL. No. SHORT FORM ORDER copy 08·l0276 l2·00099MM SUPREME COURT· STATE OF NEW YORK lAS. PART 33 . SUFFOLK COUNTY PRESENT: Hon . -- ---- ------ THOMAS F. WHELAN Justice ofthe Supreme Court .. - .. --. -- .. --- MOTION DATE MOTION DATE MOTION DATE ADJ. DATE __ Mot. Seq. # 007 # 008· # 009 - 5·29·12 (#007 & #011) 6·8·12 (#008. #009 & #010) 7·16·12 (#012) 7·_1_6·_1_2 _ MG # 010 - MG MG # Oil . MG MG # 012 - MG; CASEDISP X DINKES & SCHWITZER, P.c. Attorney for Plaintiffs 112 Madison Avenue NewYork,NewYork 10016 JANET ORLANDO, as administratrix of the good, chattels and credits which were of KEITH ORLANDO, deceased and JANET ORLANDO, Individually, CRAFA & SOFIELD, LLP Attorney for Defendant Elliott R.P.A. 100 North Centre Avenue, Suite 302 Rockville Centre, New York 11570 Plaintiffs, KELLY, RODE & KELLY, LLI' Attorney for Defendants Goldman, M.D. and First Choice Medical 330 Old Country Road Mineola, New York 11530 - against- KRAL, CLERKIN, REDMOND, RYAN, PERRY & VAN ETTEN, LLP Attorney for Defendants Monthie, P.A. and Mather Memorial Hospital 538 Broadhollow Road, Suite 200 Melville, New York 11747 GEISLER & GABRIELE & MARANO. LLP Attorney for Defendant Kalariekal, M.D. 100 Quentin Roosevelt Boulevard Garden City, New York 11530 MARULLl, LINDENBAUM, EDELMAN, ct al. Attorney for Defendant Mebrahtu, M.D. S Hanover Square, 4'h Floor New York, New York 10004 SCOTT ELLIOTT, R.P.A., PAUL MONTI-HE, P.A., LA WRENCE GOLDMAN, M.D., JOHN KALARICKAL, MD., SAMSON MEBRAHTlJ, MD .. FIRST CHOICE MEDICAL, PLLC, JOHN T MATHER MEMORIAL HOSPITAL end BROOKHA VEN MEMORIAL HOSPITAL MEDICAL CENTER. fUMUSO, KELLY, DEVERNA, SNYDER, cl al. Attorney for Dcfendant Brookhaven Mem. Hospital 110 Marcus Boulevard, Suite 500 Hauppauge, New York, 11788 Defendants. ....................................................................... X [* 2] Orlando v Elliott Index No. 08-10276 Page No.2 Upollthe following papers numbered I to..1L read on these illotions and cross mUllon for summarv jude.ment; Notlcc of Motion/ Order 10 Show Cause and supponlng papers (007) 1-16 ; NOtice of Cross MOlion aod supponing papers (008\ 17-34: (009) 35-50: (010) 51-62: (0 11) 63-66: (Ol:n 67-78 : Answering Affidavits and supponing papers _. Replying Affidavits and supponing papers __ : Other _: (",,,d tltk, lied, ;"", ~bllliS~!ill SUPI,Oltund opposed to tile illolioli) it IS, ORDERED that motion (007) by the defendanls, Lawrence Goldman, M.D., and First Choice Medical. PLLC. pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted against them is granted~ and it is further ORDERED that motion (008) by the defendant, to ('P[,I{ 3212 for summary judgment funhcr dismissing Brookhaven Memorialilospital Center. pursuant thc complaint as assert:<.:dagainst it is granted; and It is ORDERED that motion (009) by the defendant for summary judgment dismissing the complaint John KalanckaL M.D., pursuant to CPLR 3212 as asserted against him is granted; and it is further ORDERED that motion (010) by the defendant Sampson Mebrahtu, M.D., pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted agalllst him is granted; and it is further ORDERED that motion (011) by the defendant, summary judgment dismissing the complaint Scan Elliott. R.P.A., pursuant to CPLR 3212 for as asserted against him IS granted; and it is further ORDERED that motion (012) by the defendants, Paul Monthie. P.A. and John T. Mather Memorial HospitaL M.D, pursuant to CPLR 3212 for summary judgment dismissing the complaint asserted against them is granted. as [n this medica! malpra<.:t'ice action, the plaintin~ Janet Orlando, as administratrix of the goods, chattels, and credits of Keith Orlando, alleges that the defendants departed from good and accepted standards of medical carc and treatment ofpluintiffs decedent, Keith Orlando, causing him to suffer severe personul ll1Jurics, mental angllish, and death. A derivative claim has been asserted by Janet Orlando. The gravamen ofrhis complaint is that the plaintiff's decedent came under the care and trcatmen! ofthc defendants from March 9, 2006 through March 27. 2006. after lifting a heavy door and sustaining injuries diagnosed as lumbar. thoracic and cervical sprains and strains. and right knee/leg sprain. He ultimately died from a massive stroke. [t is undisputed that initially. the decedent was seen at Mather Memorial Ilospital (Mather I [ospital) on March 9, 2006 by ddendani Paul Monthie, P.A. for his complaints regarding his neck. back and knet:. and was discharged home with instructions for follow-up care. On March 14.2006. the plaintilrs decedent was s(~cn for Ihese same injuries by Scon Elliot P.A. at Firsl Choice MedicaL owned by dl'icndanl Lawrence Goldman. M.D .. and \-vas discharged with instruclions. On March 17.2006. the plaintifrs decedent collapsed at home and became unconscious. lie was transported to Brookhaven Memorial Hospital Medical Center (Brookhaven Ilospital) \-vhcre he was diagnosed with a stroke and administered tP;\ in the emergency department pursuant to the order of neurologist Samson Mcbrahtu. M.D. lie was admitted to Brookhaven Ilospital by defendant hospitalist John KalariekaL M.D., v.'ith neurologist Samson Mcbrahtu, M.D. as the lead physici811 for decedent's carc. The decedent's condition [* 3] Orlando v Elliott Index No. 08-10276 Page No.3 continued to delCrioratc. Craniotomy surgery. to treat severe brain swelling and herniation urthe brall1. was thcrealter performed on March 20. 2006. by non-ddcndant neurosurgeon Dr. Sumeer Sathi The plaintiff s dCl:cdent died on March 26. 2006, at thirty-four years of age alter having been declared brain dead. The moving defendants seek summary judgment dismissing the complaint on the bases that they did not depart from good and accepted standards of care and treatmcnt of the plaintilT's decedent. and that therc is nothing that they did or failed to do which proximately caused the claimed injuries and death of the decedent. These motions have nOl been opposed by the plaintiff who has. thus, railed to raise triable issues of fact to preclude summary judgment. The proponcnt of a summary judgment motion must make a prima facie showing or entitlement to judgment as a matter or law. tendering sufficient evidence to eliminate any material issues of fact from the case. To bryant summary judgment it must clearly appear that no material and triable issue ofract is presented (Friends of Animals v A.~sociated Fur Mfrs., 46 NY2d 1065,416 NYS2d 790 [1979]; Sillmau v Twentieth Century-Fox Film Corporatioll, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N. Y.U. Medical Center, 64 NY2d 85]. 487 NYS2d 316 [1985"]). Failure to make such a showing requires denial of the motion. regardless or the sufficiency of"the opposing papers (Winegrad v N. Y.U. Medical Center, 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 protfer evidence in admissible form ... and must "show facts sufticient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City 0/ New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proofin order to establish lhatthe matters set torth 1J1 his pleadings are real and capable 01" being established (Caslro v Uber(v Bas Co., 79 AD2d 1014,435 NYS2d 340 l2d Dopt 1981 J). 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 (I/oltoll I' Spmill Brook Mallor Nursing /lome. 253 AD2d 852, 678 NYS2d 503 j2d Oept 19981 app denied 92 NY2d 81R. 685 NYS2d 420 [1999]). To prove a prima I~leie case of medical malpractice, a plaintill must establish that defendant's negligence was a substantial factor in producing the alleged injury (see Derdiaritl11 11 Felix COlltmeting Corp., 51 NY2d 308, 434 NYS2d 1661.1980]~ Prete v RafloDemetriou.'>, 2}4 AD2d 674, 638 NYS2d 700 [2d Dert 19961). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviatIOn or departure I"rolll accepted standards of medical care and that such departure was a proximate cause or the plaintiffs injury (see Fiore 11 Galang. 64 NY2d 999. 489 NYS2d 47 [1985): Lyom· v McOlllley, 252 AD2d 516. 675 NYS2d 375 f2d Oept]. app denied 92 NY2d S 14.681 NYS2d 475 ["1998]: Bloom 11 City o/New York. 202 i\D2d 465. 609 NYS2d 45[2d Dept 1994]). To rebut a prima lacic showing of emitlement to an order granting summary judgment by the defendant. the plaintiff must demonstrate the existence of a triable issuc of fact by submiuing an expert" s affidavit ofmcrit attcsting 10 a deviation or departurc from accepted practice. and containing an opmion that the dercndanl's acts or omissions were a competent-producing cause of the injuries of the plaintiff [* 4] Orlando v Elliot! Inde.\ No. 08-10276 Page NO.4 (see L~rshilzv Belh Israel Med. Or-Kings Highway Div., 7 AD3d 759. 776 NYS2d 907 l2d Dept 2004); DOIJI(lr(l(lzki I' Glen Cove OBIGYN Assocs .. 242 AD2d 282. 660 NYS2d 739 [2d Dcpt 1997]). MOTIONS (007) and (Oil) The noticc of motion in motion (007) sets f0l1h that SCOIlElliott. R.P.A., Lawrence Goldman .. M.D .. and Firsl Choice Medical. PLLC seek summary judgmc1l\ dismissing the complaint as asserted againsl them, however, il is noted that the law office of Kelly, Rode & Kelly, LLP represents Lawrence Goldman. M.D. and Firsl Choice Medical. PLLe. Scott Elliott, R.P.I\. is represented by the law office of Crafa & Sofietd. P.c.. which has made application for summary judgment dismissing the complaint as asserted against defendant Elliott in motion (011). In this regard. it is necessary to determine first whether SCOtlElliott has established his prima facie entitlement to summary judgment before considering whether defendants Lawrence Goldman, M.D. and First Choice Medical. PLLC arc entitled to summary judgment. Therefore. motions (007) and (0] 1) are consolidated for determination. Scott Elliott testified to the extent that he began working with First Choice Medical in September 1998, and was employed there as a physician's assistant in March 2006. He saw the plaintifrs decedent on March 14,2006, for complaints regarding pain in his neck. lower back. and right knee. with onset on March 9, 2006 after lifting a heavy object. Lawrence Goldman, M.D. testified to the effect that he is the owner and sale partner of First Choice Medical, and hired Scott Elliott to work at First Choice. His obligation was to oversee the care rendered by Scott Elliott, to review his decision-making process, and to discuss cases where medical treatment is necessary. Keith Orlando was seen and examined by Scott Flliott at First Choice on March 14, 2006 for complaints of back pain, neck, and right knee pain. Goldman signature-stamped the chart after the visit. Based upon his review of the decedent's chart, he did not reel that the decedent had exhibited signs or symptoms of a stroke. Howard Kolodny_ M.D., defendants' expert, opined with a reasonable degree of medical certainty thai L<lwn:ncl.: joldll131l. M.D., First Choice Medical, <lndScott Elliott, R.P.A. did not depart from ( acceptable medical care, or the standard of care, in the treatment rendered to Keith Orlando 011 March 14. 2006, and that there is no evidence that any treatment rendered on that date caused the patient's death. Entitlement to summary judgment is supported by the record and the opinions of Dr. Kolodny. The record supports that the care and treatment provided by [l.A. EllioH was appropriate. The allegations thm P./\. Elliott failed to take a complete and comprehcnsivl; medical history is without merit. Dr. Kolodny continued that Janet Orlando testilied that her husband made no other complaints that could be remotely associated with a stroke prior to March 17.2006. and thus there were no other signs and symptoms which could have been appreciated by P.A. Elliot!. He continued that the decedent was properly referred to a chiropractor and ,"vasnot discharged prematurely. Dr. Kolodny stated that this was J young. asymptomatic man. who unfortunately occluded a large number of blood vessels three days later. making recovery impossible. No other testing was indicated on March 14.2006, other than what was provided. Dr. Goldman "·.'asnot required to see lhe decedent as a physician's assistant is allowed to diagnose and treat a patient. Dr. Kolodny opined that there was no deviation by Dr. Goldman or P./\.. [* 5] Orlando v Elliott Index No. 08-10276 Page NO.5 Elliot from the standards of care and treatment, and there is nothing that was done Corthe patient at First Choice on March 14,2006, \vhich caused any injury or damage to the decedent. Based upon the iorcgoing, it has been established prima facie that Scott Elliott, P.A., Lawrence (lo1dman, M D , and First Choice Medical arc entitled to summary judgment dismisslllg the complaint on the bases that they did not depart from good and accepted standards of medical care and practice in the treatment oftbe plaintiffs decedent on March 14,2006, and that they did no! proximately cause the injuries and death of the pla1l1tifrs decedent. Accordingly, the unopposed motions (007) and (011 ) are granted, and the complaint as asserted against Scott Elliott, R.P.A., Lawrence Goldman, M.D., and First Choice Medical is dismissed. MOTION (008) !n motion (008), Brookhaven Memorial Hospital Medical Center seeks summary judgment dismissing the complamt as asserted against it. Brookhaven Memorial Hospital Medical Center has established prima facie entitlement to summary judgment dismissing the complaint on the bases that none of the employees or staff at Brookhaven Hospital departed from good and accepted standards of care and treatment, and that there is nothing that they did or did not do which caused or contributed to the decedent's injuries or death. Dr. Anthony C. Mllstalisb. the expert phY'sician for Brookhaven Memorial Hospital, set forth the care, diagnostic testing, and treatment which was ordered, the time intervals for the various testing, and opined that all ,-vasaccomplished in an efficient and timely manner, representing good and 8ccepted emergency care and treatment and evaluation of an unresponsive patient with the decedent's presentation. Dr. Mustalish established that the decedent was properly monitored, and vital signs and findings were properly recorded. Dr. Mustalish set forth that in the emergency room, Dr. O'Malley performed a stroke assessment according to protocol, and based upon the findings, called a Code Gray for the immediate institution of stroke treatment protocol, standard protocol based on the National Institute of Health Stroke Scale, representing good and acceptcd medical care, Dr. Mustalish continued that Dr. Mebrahtu. the treating neurologist \\'110was called III by Dr O'Malley, obtained written consent for tPa administration from the decedent's wife. and discussed all questions and the risks and benefits of such administration with her. There is no evidence that tPA (to help break up the clot) caused or contributed to the decedent's demlse. Dr. Mustalish continued that the tPA was timely administered within the gray area, just mlllutes aner the three ]lour window. Dr. Mustnlish continued that during the decedent's hospital admission. thcre was nothing that the nurses or physicians at13rookhaven Hospital did or did not do which caused or contributed to the injuries claimed herein: that they did not depart from good and accepted standards of care and treatment; and that the medical care and treatmenl rendered to the plaintiJrs decedent at Brookhaven Hospital was at all times within acceptcd standards of care. Dr J'v1ustalishopined that a stroke in a 34 year old is unusual and is not a prcliminury primary consideration in a presentation such as the decedent's. Thus, it ,-vasnot a deviation from accepted care to not include stroke as a primary differential d13gnosis_ I-Iecontl11ued that the evaluations that were timely pcrf{xlllcd, led to the diagnosis of stroke. and that the initial tn:atmcnt and [* 6] Orlando v Elliott Index No. 08-] 0276 Page No.6 stabilization then was carried out was also appropriate for a stroke victim. Based upon the foregoing. defendant Brookhaven Memonal Hospital has established prima facIe entitlement to summary judgment dismissing the complaint. Accordingly, the unopposed motion (008) IS granted, and the complamt as asserted against defendants Brookhaven Memonal Ilospital Medical Center is dismissed. In motion (009), the defendant, John Kalanckal, M.D., seeks summary judgment dismissing the complaint asserted against him. In 2005 and 2006, he was employed by Cogent Healthcarc, a company that provided hospitalist physicians to hospitals across the country. Patients who either did not have an outpatient primary care provider, or whose outpatient primary care provider did not provide inpatient services at Brookhaven HospitaL were typically admitted under the hospitalist service. He stated that Keith Orlando arnved at Brookhaven Hospital emergency room on the morning of March 17,2006. He was the decedent's admitting physician, and as an internist, much of his role was to communicate with the family and other consultants. In reviewing the hospital record, he noted the decedent's history oflift:ing a ] ,200 pound door with co-workers when he hurt his neck, knee. and back. Dr. Kalarickal stated that this presentation was important for consideration of an injury to the vessels in the neck, since he did not have a head injury. Dr. Kalanckal's expert, Leon Zacharowicz, MJ)., opined that Dr. Kalariekal did not depart from good and accepted medical practice in the care and treatment rendered to Keith Orlando, and that no negligent acts or omissions by him caused any injury to the plaintiff's decedent. Dr. Zacharowiez stated that Dr. Kalariekal admitted the plaintitf's decedent on March 17,2006 to Brookhaven Hospital and followed the plan of care set forth by neurologist Dr. Mebrahtu. On March 20. 2006, Dr. Kalariekal saw the decedent and reviewed the CT scan performed on March 191h, which indicated a left middle cerebral a11ery infarct with mass effect and midline shift, without evidence of intracranial hemorrhage. Dr. Kalarickal immediately notified Dr. Mebrahtu, and they agreed that a neurosurgical evaluation \vas appropriate. Immediately thereafter, Dr. Kalarickal called Dr. Sumecr Sathi, a neurosurgeon, and requested a consultation and evaluation of the decedent. Dr. Sathi's impression was that of severe catastrophic swelling and herniation of the brain, with a poor prognosis j()r recovery. He recommended surgery to relieve the pressure on the decedent's bnlln and advised Dr. Kalarickal to discontinue the Heparin, to intubate the decedent, and to prepare him for surgery. On March 20th, a craniotomy was performed by Dr. Sathi, who noted that the decedent's chances of survival were poor, and that any meaningf'ulncurologieal recovery was unlikely. Dr. Kalariekallast saw the decedent on March 22,2006. He noted that the decedent's prognosis remained extremely grim as there vI/asno brain stem function. The p1alntilrs decedent ,vas declared brain dead by neurology and neurosurgery on two separate ()ccasion~;. Pursuant to the t::unil)-," \-vishes, lile support was withdrawn. Keith Orlando died on s March 26. 2006. Dr. lacharowicz opined tbat any allegation that Dr. Kalarickal failed to refer the decedent to a proper specialist, or improperly administered tPA. and failed to adhere to protocols regarding its use, IS without merit. Dr. Mebrahtu, \-\,·ho ordered and administered the tPA, was responsible t(Jr obtaining the JI1Cormed consent kJr its administration. Dr Mebrahtu also ordered the administration of Heparin, an appropriate !()llow-up treatment as part of the anticoagulation therapy. On March] 8th and 19th, the decedent was under the care of another hospitalist, Dr. Sadiq, as well as Dr. Mebrahtu Dr. Kalariekal S<.1W [* 7] Orlando v Eillott Index No. 08-10276 Page NO.7 the decedent on the morning of March 201h and noted that his condition was deteriorated. Dr. Kalanckal acted appropnate!y 10 rev](~wing the CT scan of March) 91h, calling Dr. Mcbrahtu, and obtaining a neurosurgical consultatIon with Dr. Sathi, who evaluated the decedent and assumed the lead role in the decedent's care and treatment thereafter. The record supports that when Dr. Kalarickal saw the decedent on March 20, 2006, he was already experiencing catastrophic swelling and herniation of the brain. His condition was grave and almost certainly irreversible, with major brain damage already having occurred. Dr. Zacharowicz opined that Dr. Kalarickal acted 111 accordance with good and accepted medical practlce, and that there were no negligent acts or omissions by Dr. Kalarickal which caused in.Jury to the decedent. Dr. Kalarickal has also submitted the expert affirmation of Howard Kolodny, M.D. It is Dr. Kolodny's 0pl11ion withm a reasonable degree of medical certainty that Dr. Kalarickal did not depart from good and accepted medical practice in his care and treatment of the plaintiff's decedent, and that there were no negligent acts or omissions by Dr. Kalarickal vihich caused injury to the plaintiffs decedent. Entitlement to summary judgment is supported by the record. Dr. KJodony stated that Dr. Kalarickal did not see the decedent until March] 7, 2006, aner Dr. Mebrahtu deCIded to treat the decedent with tPA, and thus Dr. Kalariekal was not involved m that decision to administer tPA. Dr. Kalarickal, however, did write the order at 9:40 p.m. to admit the plaintiffs decedent to leU, with Dr. Mebrahtu as the lead physician. Dr. Kalariekal had no involvement in the decedent's care and treatment on March 181h and 191h On March 20, 2006, when Dr. Kalarickal saw the decedent at 10:00 a.m., the plaintiffs decedent had already been seen by Dr. Mebrahtu, who ordered a stat CT scan and ordered Decadron and MaJUlitol to reduce brain swelling. Upon completion of the scan, Dr. Kalarickal immediately contacted Dr. Mebrahtu with the results, and they agreed to a neurosurgical consultation. Dr. Sathi saw the decedent and performed a craniotomy to help relieve the severe catastrophic swelling and herniation ofthc decedent's brain. Dr. Kolodny set forth his opinion that Dr. Mebrahtu, as the neurologist, made the decisions concerning the administratioll oftPAand Heparin; provided mformed cOllsent to the decedent's wife concerning the tPA; and ordered all the proper tests. He continued that a neurosurgical consultation was not indicated on March 1711- as the decedent ",vas being followed by Dr. Mcbrahtu, the proper specialist, and there were no notable changes in the decedent's condition. On March 20, 2006. Dr. Kalarickal properly performed a thorough examination of the decedent, reviewed the CT scan reports, promptly called Dr. Mebrahtu to discuss the results, and then promptly called Dr. Sathi for a neurosurgical c()l1sultation_ Accordingly. the unopposed Kalarickal is dlsmissed. motion (009) is granted and the complaint asserted against Dr. [n motion (010) the del'endant Samson Mebrahtu, M.D., seeks summary judgment dismIssing the complaint on the bases that he did not depart from good and accepted standards of medical care and treatment and did 110tproximately cause the decedent's injuries or death. Samson Mebrahtu. M D. testified to the extent that the plainti efs decedent had a non-bleeding type of stroke rather than a stroke caused by bleeding. He continued that a non-bleeding type of stroke causes a lack of blood tlov\" to certain [* 8] Orlando v Elliott Index No. 08- I0276 Page No.8 areas of the brain, resulting in either a reversible deficit or permanent del"icit. A non-contrast CT scan of the brain can determine whieh type of stroke the patient has. Dr Mebralltu has submitted the affirmation ofllis expert, Alan Z. Segal, M.D. who opined with a reasonable degree of medical certainty that there is no basis to support the platntiffs allegatIons of negligence relative to Dr. Mebrahtu's care and treatment of Keith Orlando from March 17,2006 through March 27, 2006. Such opinions are supported by the record and demonstrate Dr. Mebrahtu's entitlement to Sllmmary judgment. Dr. Segal has set forth the plaintiffs decedent's course of treatment while admitted to Brookhaven Hospital and under the care and treatment oror. Mebrahtu, and opined that all of his medical recommendations for diagnostic testing, administration oftPA and Heparin, differential diagnoses of embolic left middle cerebral artery thrombus, hypercoagulable state, and carotid dissection; diagnOSIsof acute lell middle cerebral artery CYA; administration of Decadron and Mannitol, and discontinuance of Ilcparin, intuhation, hyperventilation, and neurosurgical consultation on March 20, 2006, were timely, appropriate, and proper. Dr. Segal continued that at all times, Dr. Mebrahtu properly and timely evaluated the decedent; properly appreciated the patient's condition: properly assessed brain swelling and ordered appropriate medications and neurosurgical consultation and intervention. He added that Dr. Mebrahtu as a neurologist, is a stroke specialist, and did not depart from accepted standards of care and treatment. He adhered to proper protocols, gave proper informed consent advising of the inherent risks and benetits of the tPA. Dr. Segal opined that none of the alleged departures from the standards of care by Dr. Mebrahtu were the proximate cause of the decedent's injuries and death which were the result of his catastrophic stoke. Based upon the foregoing, it is determined that Dr. Mebrahtu has demonstrated prima j~Kie entitlement to summury judgment dismissing the complaint. Accordingly, the unopposed motion (010) is granted and the complaint asserted against Dr. Mehrahtu is dismissed. In motion (012) the defendants, Paul Monthic, P.i\. and John T. Mather Memorial Ilospital, seek summary Judgment dIsmissing the complaint on the bases that they did not depart from good and accepted standards of medical carc and treatment, and did not proximately cause the decedent's injuries or death. Paul Monthie testiJied to the effect that on March 9, 2006, he was working in the emcrgency department at Mather Hospital and saw Keith Orlando as a patient for complaints of pain in his neck, lower back. and both knees, which occurred while he was lining a heavy glass door at 10 a.m. Aftcr examining zll1devaluating the decedent Monthie discharged him with instructions to follow up wiThhis pnv31e attending for further medical care 3nclTreatment. In support of his application, Monthie has submitted the expert affirmation ofJ-Joward B ReIser, 1'\-'1.D. who opined within a reasonable degree of medical cCJ1amthat there were no deviations or departures Ii-omacceptable medical care or the standard or care in the treatment of Keith Orlando on i\1arch 9, 2006, and there is no evidence that any treatmenL rendered on that date caused the patient's death. Entitlement to summary .ludgn1ent is supported by thc record. [* 9] Orlando v EllIOtt Index No. 08-10276 Page No. () Dr. Reiser has opmed that there was nothing in the decedent's history or physical exam performed by P.A Monthic to suggest that the decedent was about to suffer a cerebral vascular accident, transient Ischemic attack, or Impending strukc. His symptoms and complaints were consistent with the diagnosis made by P.A. t'v1onthie ofmllscle strain resulting from heavy lifting of an object The exam was appropriatc and adequate based upon the decedent's presentation, and a correct diagnosis was made. No consultation was necessary, and no admission to a hospital was required. Dr. Reiser concluded that the decedent's stroke and subsequent death were due to atherosclerosis with subsequent thrombosis. Accordingly, the unopposed motion (012) is granted and the complaint defendant Paul Monthie, P.i\. and Mather Memorial Hospital is dismissed. as asserted against

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