Macias v Ferzli

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Macias v Ferzli 2013 NY Slip Op 33980(U) August 23, 2013 Supreme Court, Kings County Docket Number: 500000/06 Judge: Marsha L. Steinhardt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Page 1 ol <4342 I order&. O PIN\ON .....OTO 5/6/13 At an IAS Term, Part 15 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 8th day of May, 2013. PRESENT: HON. MARSHAL. STEINHARDT, Justice -------------------------------------X MILTON MACIAS and GLADYS RIVERA, as Co-Administrators of the Estate of JACQUELINE ANDRADE, for the Benefit of her Infant Sons, MILLER AND ERICKSON, COMBINED DECISION/ORDER ON REARGUMENTj AMENDMENT OF PRIOR DECISION/ORDER Plaintiffs, Index No. 500000/06 - against- Mot. Seq. #18 GEORGE FERZLI, M.D., GEORGE FERZLI, M.D., P.C., ARMANDO CASTRO, M.D., PETER GERARD BAUER, M.D., PAMELA BOWEN, M.D., "MARY" NALBANDIAN, M.D., EVELYN ANSA, M.D., "JOHN" MURALI, M.D. , HUSAN RIMA Wl, M.D., GHAZAL! CHAUDRY, M.D., and LUTHERAN MEDICAL CENTER, Defendants. ?."' -- ---- --- ----------------------------X .c:\.0 The following papers numbered I to 6 read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed ~~~~~~~~~~- Papers Numbered 1-2 Plaintiffs' Opposing Affidavits (Affirmations) 3 4 5 Defendants' Reply Affidavits (Affirmations)_ _ __ __ 6 ----- Prinlcd: 1013012{ [* 2] Page 2 of 4342 500000'2006 Decision and Ofdet & OPINION .OTO. 518113 Plaintiffs Milton Macias and Gladys Rivera, as Co-Administrators of the Estate of Jacqueline Andrade, for the Benefit of her Infant Sons, Miller and Erickson (collectively, plaintiffs), move for an order, pursuant to CPLR 2221 ( d), for leave to reargue the branches of the prior motions for summary judgment of defendants Lutheran Medical Center, Kannan Muralikrishnan, M.D. (incorrectly sued herein as "John" Murali, M.D.), Peter Gerard Bauer, M.D., Armando Castro, M.D., George Ferzli, M.D., and George Ferzli, M.D., P.C. (collectively, defendants), and, upon reargument, denying these branches of the prior motions in their entirety.· Defendants oppose plaintiffs' motion. By decision and order, dated Oct. 3, 2012 (the prior decision and order), the Court granted tpe branches of the prior motions at issue and dismissed the aforementioned defendants from this action. The Court issued its prior decision and order after ( 1) reviewing the medical record, (2) reading the pretrial deposition testimony, (3) reconstructing the chronology of events, (4) studying the defense experts' opening and reply affidavits, (5) analyzing plaintiffs' expert' s initial and supplemental affidavits in opposition, and (6) applying relevant law. The Court's factual and legal analysis was constrained by the narrow parameters in which plaintiffs have litigated this action; namely: (I) plaintiffs' ~) failure to depose Allen Coopersmith, M .D., the anesthesiologist in charge of the recov~ / ;-- : room in which the patient was administered ice chips and who approved her transfer [tom -~ the recovery room to the general floor, albeit without continuing to maintain ~r on .J::-.. "° *Plaintiffs seek no leave to reargue the remaining branch of the defendants' motion which sought summary judgment dismissing defendant "Mary" Nalbandian, M.D., from this action. 2 Printed: 10/30/201! [* 3] Pege 3 of 4342 5COOOOl2006 Decision and 0<dcr 8 OPINION. ..OTO 518113 supplemental oxygen, (2) plaintiffs' belated decision, while the prior motions were pending, to depose Nurse Weber who administered the ice chips to the patient while she was in the recovery room, (3) plaintiffs' use of a single medical expert to opine on the departures and causation in the discrete fields of anesthesiology, surgery, emergency medicine/resuscitation, gastroenterology, obstetrical/pre-natal care, general post-operative care, and general hospital procedures, (4) plaintiffs' expert's failure to address the propriety and dosage of a combination of Demerol, Phenergan, and Vistaril which the patient received both before and after her surgery under general anesthesia, and (5) plaintiffs' expert's failure to address (a) about an hour's long wait for the ventilator to be available while the patient remained Ambu-bagged on the general floor, (b) the propriety of the initial ventilator settings tha , for reasons unexplained in the record, were thereafter reset, and (c) the cause(s) for the barotrauma that the patient subsequently experienced while on ventilator support and before her ensuing demise. These and many other shortcomings in plaintiffs' expert initial and supplemental affidavits in opposition (as are more fully described in the Court's prior decision and order) were no match to the strong prima facie showing that each defendant made by way of an expert affidavit. Defendants' dismissal from this action was, therefore, inevitable as a matter of law. But plaintiffs' errors do not end here. Plaintiffs' instant motion (or leave to reargue is procedurally defective for failure to include with their,opening papers a copy of the prior motions, as requireq by CPLR 2214 (c)· and by.the SecondDepartment's recent decision in * CPLR 2214 (c) provides, in relevant part, that "[e]ach party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing_ al' other papers not already in the possession of the court necessary to the consideration of the questions involved.. . . Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the moti on, unless the court for good cause shall otherwise direct." 3 Printed: 10/30/2015 [* 4] Pege 4 or 4342 50000012006 Oedsion and order & OPINION..... OTO. 51811 3 Biscone v JetBlue Airways Corp. (103 AD3d 158, 180 [2012], appeal dismissed 2013 NY Slip Op 68372 [Ct App 2013]): Accordingly, the Court, in its discretion, denies plaintiffs leave to 'reargue the branches of defendants'·prior motions. Even if the Court were to grant plaintiffs' leave· to reargue, the Court would adhere to its original determination for the reas.ons stated above. Plaintiffs, in their motion, isolate a single paragraph starting on page 23 and continuing on page 24 of the prior decision and order in ·support of their argument that the Court· misapprehended the facts. This 136-word paragraph is unnecessary to the Court's 11,428-word, 42-page prior decision and order, and, accordingly, the Court hereby amends its prior decision and order to delete it in its entirety. Additionally, the Court deletes the first two words in the next ensuing paragraph. Accordingly, pages 23 and 24 of the prior decision and order are hereby amended and restated in their entirety to read as follows (the deleted language is indicated by a strikethrough, and an asterisk is added to each footnote to preserve the original footnote numbering in the prior decision and order): * Although the First Department's earlier decision in Rostant v Swersky (79 AD3d 456, 1 456-457 [P Dept 2010]) is to the contrary, the Second Department's later decision in Biscone constitutes a binding authority which this Court must follow. Moreover, Rostant was incorrectly decided because, unlike Biscone, it did not rely on CPLR 2214 (c). Moreover, sister courts in this department had reached the same conclusion as Biscone did, even before it was handed down (see Kaye! v Fath, 2011 WL 2323252 [Sup Ct, Suffolk County 2011]; Pollock v Town of Ossining, 2010 WL 4806112 [Sup Ct, Westchester County 2010]). 4 Printed: 10/30/201: [* 5] Page 5014342 500000l2000 Decision and orlle< & OPINION OTO. !>'llnJ Re lacement Pa e 23 of the Prior Decision and Order: symptoms sugges ·ng an obstruction and Dr. Rivito's recommendation to consider removal d - was a deviation from the standard of care (see Helfer v Chapin, of the gastric b 96 AD3d 1270, 1 ' 72 [3d Dept 2012]). First, plai tiffs' expert affirmation neglects to consider the patient's history of abdominal complaints following the placement of a gastric band. Plaintiffs' expert affirmation ignor s the undisputed fact that the patient had been uncomfortable with her gastric band as early as March 2004 when, after more than a year's absence and three "no shows," she retu ed to the physicians' office where she initially saw Dr. Castro and later Dr. F.e rzli. Plaint ffs' expert affirmation misses the crucial fact that th.e patient comp laird of abdominal pai in the location of her gastric band during her initial visit to LMC I n o June 8, 2004, that she complained of abdominal pain and nausea/vomiting in her subsequent visit to LMC on une 10, 2004, and that she continued to so complain until her surgery six days later. Second, , endoscopy did , 11 foreclose sttrgery. As Ml initi•l molter, plaintiffs' expert affirmation :::::c:::=::::=== =" :::f = : : : : : s s c d all tlte woy tlno~1 ro tlrc patient's dttodenttm "'J 1 . . . Indeed, the upper endo~eopy revealed a "[l]mge . 5 Prinled: 1M0r.!015 [* 6] Page 6 of '4342 500000J2006 Decision and order & OPINION.... OTO. !W'8113 Replacement Page 24 of the Prior Decision and Order: ift:he patient expet icnced no obstrnction whatsoever, she would not have had so nmeh flttid collected in her esophagus and, as a 1esult, the endoscopist -would not have 1econ11nended removal of her gasb:ic band. More fundainentally , plaintiffs' expert affirmation focuses o·n distractions and grasps at straws in an attempt to bolster plaintiffs' tintenable position that surgery was unnecessary and unwarranted. According to their · expert affirmation (in if . 16), "[a]pparently unbeknownst to her [the patient], this ·surgery was both unnecessary an·d 'unwarranted . . . ." (emphasis added). However, Dr. Castro's entries in the hospital records, coupled with the patient's consent form, indicate that the patient preferred surgery over the placement of a feeding tube. s• In this regard, the Court considers plaintiffs' position that surgery was not medically indicated as evidence of the allegedly negligent treatment and that they do not have a separate claim for lack of informed consent (see Benfer v Sachs, 3 AD3d 781, 783 [3d Dept 2004]). 9" Next, plaintiffs' expert affirmation places undue emphasis on Dr. Castro's pretrial testimony (at pages 67M69 of his deposition) that the two alternatives which he presented to 8 · Plaintiffs have submitted no deposition testimony, if any, from the patient's boyfriend (the father of her unborn child) or her sister, both of whom visited the patient throughout her hospitalization. 9 · Moreover, plaintiffs failed to raise a triable issue of fact on the issue of informed consent, since they do not address this cause of action in their opposition papers (see Brady v Westchester County Healthcare Corp., 78 AD3d 1097, 1099 [2d Dept 2010]). 6 Printed: 10/30/2015 [* 7] Pege 7 of 4342 500000/2006 Decision end order & OPINION ' .DTD. 5/8/13 - ... . . the patient - either surgery or a feeding tube - had an equal chance of success, even though surgery was obviously riskier than a feeding tube. Plaintiffs' expert affirmation posits (in [text continues on page 25 of the prior decision and order} *** The remainder of the Court's prior decision and order remains unchanged. This constitutes the decision, opinion, and order of the Court. ENTER, FI LED AUG 2 3 2013 J. S. C. KINGS COUNTY ClERK'S OFFICE BON. MARSHAL STEINHAROT S1, ~g \rn (' ~ :·,i-~\~ c. J t \~i · 7 Printed: 10/30/201!

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