Moran v Mu

[*1] Moran v Mu 2013 NY Slip Op 52347(U) Decided on September 18, 2013 Supreme Court, Kings County Jacobson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 18, 2013
Supreme Court, Kings County

George Moran, as Guardian Ad Litem for Ildefonso Castillo, and Wendy Castillo, Plaintiffs,

against

Harrison Mu, M.D. Richard Johnson, M.D., "John" Christian, M.D., Hector Gil De Rubio, M.D., P.C., Wyckoff Heights Medical Center, and Wyckoff Emergency Medicine Services, P.C., , Defendants.



18736/03
Laura Lee Jacobson, J.

The following papers numbered 1to 30 read herein: Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed 1-3;8-10;13-15;18-19;20-21;24-25

Opposing Affidavits (Affirmations) 4-6; 22

Reply Affidavits (Affirmations) 11; 16; 23

Supplemental Reply Affidavits (Affirmations) 17; 26-28

Memoranda of Law 7; 12;

Transcripts of Pretrial Depositions of Welda Gejon, R.N.,

Halina Feder, R.N., and Regina Marquez, R.N. 29

Transcript of Pretrial Deposition of Allen M. Williams, M.D. 30

In this medical malpractice action brought against, inter alia, a hospital and its on-call neurosurgeon for the life-long, irreversible brain injury allegedly caused by a delayed and improper treatment of a head gunshot wound, the following motions and cross motions have been consolidated for disposition and, upon consolidation, oral argument, and additional submissions in response to the Court's interim orders, dated July 24 and 31, 2013, it is hereby

ORDERED that the motion of the defendant Richard Johnson, M.D. (Dr. Johnson), for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint insofar as asserted against him or, alternatively, dismissing damages for past and future pain and suffering, is granted without opposition from the plaintiffs, George Moran, as guardian ad litem for Ildefonso Castillo, and Wendy Castillo (plaintiffs), and without costs or disbursements (seq. No. 14); and it is further

ORDERED that the motion of the defendant Harrison Mu, M.D. (Dr. Mu), for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint insofar as asserted against him or, alternatively, dismissing damages for past and future pain and suffering, is granted solely with respect to plaintiffs' informed consent claim and is otherwise denied (seq. No. 13); and it is further

ORDERED that the motion of the defendant Wyckoff Emergency Medicine Services, P.C. (Wyckoff ER), for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint insofar as asserted against it is granted solely with respect to plaintiffs' informed consent claim and is otherwise denied (seq. No. 12); and it is further

ORDERED that the alternative request of the defendant Wyckoff ER, made by way of a supplemental attorney affirmation, to expand upon the relief sought in its original motion to include a dismissal of damages for past and future pain and suffering is denied; and it is further

ORDERED that the cross motion of the third-party defendant Kara Christian, as successor executor of the estate of Karl W. Christian, M.D., for an order, pursuant to CPLR 3211 and 3212, dismissing damages for past and future pain and suffering is denied (seq. No. 15); and it is further

ORDERED that the cross motion of the defendant Wyckoff Heights Medical Center (Wyckoff Hospital) for an order, pursuant to CPLR 3211 and 3212, dismissing all claims of vicarious liability against it for the conduct of Dr. Mu, Wyckoff ER, and Dr. Johnson is deemed, pursuant to CPLR 3211 (c), as one for summary judgment and, thereupon, is granted solely with respect to Dr. Johnson and is otherwise denied (seq. No. 17); and it is further

ORDERED that the branch of plaintiffs' cross motion for an order, pursuant to CPLR 1201 and 1202, amending the caption to reflect the substitution of Kerry J. Katsorhis as guardian ad litem for the injured plaintiff Ildefonso Castillo is granted without opposition (seq. No. 18); and it is further

ORDERED that the remaining branch of plaintiffs' cross motion for leave, pursuant to CPLR 3025 (b), to amend their complaint to add Neuro Axis Neurosurgical Associates, P.C. (alternatively spelled as NeuroAxis Neurosurgical Associates, P.C.) (NeuroAxis) as a defendant is granted (seq. No. 18); and it is further

ORDERED that the caption of the principal action is amended to read in its entirety as follows:

X

Kerry J. Katsorhis, as Guardian Ad Litem for

[*2]Index No. 18736/03

Ildefonso Castillo, and Wendy Castillo,

Plaintiffs,

against -

Harrison Mu, M.D.,

"John" Christian, M.D.,

Hector Gil De Rubio, M.D., P.C.,

Wyckoff Heights Medical Center,

Wyckoff Emergency Medicine Services, P.C., and

Neuro Axis Neurosurgical Associates, P.C.,

also known as NeuroAxis Neurosurgical Associates, P.C.,

Defendants.

X

The parties are reminded of their next appearance in the Medical Malpractice Trial Readiness Part on October 7, 2013.

Background

On Thursday, July 18, 2002,[FN1] at 4:45 a.m., the injured plaintiff Mr. Ildefonso Castillo (the patient) presented to the defendant Wyckoff ER with a visible gunshot wound to his head (GSWH), concomitant with a gunshot wound to his left leg. The GSWH was of the "penetrating" (no exit) type with the bullet lodged inside his skull.[FN2] The GSWH resulted in some visible swelling and a small amount of bleeding from his skull.

On presentation, the patient informed the personnel at Wyckoff ER that he had been shot in the street about 20 minutes earlier (MC 30).[FN3] He complained of sharp pain on the scale of 8 of 10 (MC 31). His blood pressure was then 136/68 (hypertensive), his pulse 125 (tachycardic), his respiratory rate 22 breaths per minute (tachypneic), and his temperature 98ø (afebrile) (MC 30). He had a blood alcohol level of 38.22 (or .038) (MC 422). He was then 24 years old, weighed 190 pounds, and stood 5 feet, 9 inches tall (MC 30, 451). He had no prior medical history (MC 25), was married, and worked as a doorman/porter earning $50,000 per annum (BOP ¶ 5).

The patient was first seen by an ER nurse at 5 a.m., triaged by another ER nurse at 5:12 a.m., and examined by an ER physician at 5:30 a.m. Despite the obviousness of his GSWH, he was assessed the lowest triage level of 4/4 (MC 25). While in the ER, he received no medication to decrease any brain swelling that may have resulted from the GSWH; he received no supplemental oxygen; no arterial blood gases were ordered at that time.

At 5:45 a.m., the patient received an antibiotic and a tetanus shot, and was also set up with the IV lines for liquids to maintain his fluid balance (MC 26). Also at 5:45 a.m., an order for a non-contrast CT scan of the patient's head was entered in his medical chart (MC 26), but the CT scan was not performed until about 8 a.m. (MC 28). In the meantime, only an X-ray of the [*3]patient's head was performed at 6:45 a.m. The X-ray showed the presence of a bullet lodged in the patient's skull and a fracture of his frontal bone on the left side (MC 323). At 6:45 a.m., the patient was still "awaiting disposition," although a page for a surgical consult was answered at 5:55 a.m. and a separate page for a neurosurgical consult was answered at 6:30 a.m. During his two-hour admission to Wyckoff ER and before he was referred to the surgical service at 7 a.m., the only substantive diagnostic procedure that Wyckoff ER performed on him was a head X-ray, and the only substantive treatment Wyckoff ER provided to him consisted of IV fluids and an antibiotic, plus a tetanus shot.

The patient was admitted to the surgical (trauma) service at 7 a.m. for a period of two hours until about 9 a.m. During those two hours, the surgical service, which includes the trauma service, examined him, wrote up examination notes, and ultimately referred him to the neurosurgical service. In essence, his admission to the surgical service was nothing more than a paperwork formality: during his admission to the surgical service, he remained physically stationed in the ER and was not moved to either an ICU or a CCU (Dr. Mu Transcript hereinafter ("Tr.") at 574:17-21). Only at about 9 a.m. was he admitted to the neurosurgical service.[FN4]

While the patient stayed in the ER, nonparty Physician's Assistant (PA) Warren Strauss, a member of Wyckoff Hospital's in-house neurosurgical staff, examined the patient some time after 7:30 a.m. (PA Strauss Tr. at 106:18-19). Between 7:30 a.m. and 8 a.m., PA Strauss spoke on the telephone twice with the defendant Dr. Mu, a member or employee of the outside neurological group (the proposed defendant NeuroAxis), which covered Wyckoff Hospital's emergency neurosurgical patients (PA Strauss Tr. 107:6-12, 158:19-21). In consultation with Dr. Mu, PA Strauss ordered (or, more precisely, re-ordered) a non-contrast CT scan of the patient's head. The head CT scan, which was performed at 7:55 a.m., revealed (1) the presence of a bullet within the soft tissues at the left frontal parietal area, (2) a fracture of the left frontal bone lateral aspect, (3) some hemorrhage within the left frontal area, and (4) a soft-tissue hematoma.[FN5]

During his two-hour admission to Wyckoff ER and his subsequent two-hour admission to the surgical service, the patient's mental state visibly deteriorated. On his initial presentation to Wyckoff ER at 4:45 a.m., the patient appeared cognitively unimpaired. He walked into the ER on his own; the motor strength in all of his extremities was found to be normal on testing; he appeared to be fully alert and oriented; he was able to speak and his speech was clear (MC 30). He was assigned a maximum Glasgow Coma Scale score of 15: 4 points for his "spontaneous" eye-opening response, 5 points for his "oriented" verbal response, and 6 points for his "obeying commands" motor response (MC 31).[FN6] In the course of his admission to Wyckoff ER, however, [*4]the patient's cognition noticeably deteriorated.

A 7 a.m. surgical admitting note revealed that the patient was "somnolent," meaning that some changes were going on in the patient's condition, such as "some swelling reaction to the gunshot wound slowly taking effect" (MC 52; PA Strauss Tr. at 123:11-21, 124:19-21, 125:3-5). The neurosurgical operative report recited that "[i]n the Emergency Room, the patient was intermittently opening eyes to voice, moving all four extremities purposely, but [was] lethargic," and that his pupils "only intermittently follow[ed] commands" (MC 460).

Additionally, in the course of his subsequent admission to the surgical service, the patient's cognition further deteriorated. Shortly after 7:30 a.m., when PA Strauss examined the patient, he noted that the patient was able to move his arms and legs, but that the patient was "foggy," "very cloudy," or "waxing and waning" in his mental status; in other words, that it took the patient longer to answer questions than an ordinary individual would have answered and that the patient was not as alert as anticipated (PA Strauss Tr. at 33:20-21, 94:10, 103:21-105:4, 104:13, 106:18-19, 146:15-25, 147:10-24, 148:19, 149:5-13, 151:4-5). An 8 a.m. progress note described the patient in the ER as "very somnolent," "inappropriately answer[ing] questions," and "intermittently" following commands (MC 50).

Some time after 8 a.m., Dr. Mu arrived at Wyckoff Hospital and examined the patient (Dr. Mu Tr. at 191:21-192:2, 629:18-25).[FN7] At the time, the patient was awake, able to generally follow commands and able to say his name; he was moving all four extremities purposefully but could not hold a conversation, did not know where he was, and opened his

eyes only after repeated questioning (Dr. Mu Tr. at 192:17-19, 193:3-8, 622:14-18, 624:8-12, 625:7-12). In Dr. Mu's words (at 641:3-4), he was "not quite as awake as when he first came in." At 9:15 a.m., the patient was moved to the holding area for his upcoming neurosurgery. While in the holding area, he was unconscious and unresponsive to a verbal stimulus (MC 444, 455).[FN8] At 9:10 a.m., Dr. Mu administered him Mannitol, an osmotic diuretic for reducing brain swelling. At 9:25 a.m., the patient was in the operating room. He was assigned an anesthesiologist, Karl W. Christian, M.D. (Dr. Christian), who has since died and has never been deposed in this case. In performing a pre-operative check of the patient, Dr. Christian rated the patient as 4-E under the American Society of Anesthesiologists guidelines, signifying that the patient was a poor risk [*5]for anesthesia (MC 447).[FN9]

At 9:35 a.m., according to the medical record, Dr. Christian intubated the patient with an endotracheal tube (ETT). Dr. Christian placed one end of the ETT in the patient's trachea and attached the other end to a ventilator that forms an integral part of the anesthesia machine. Dr. Christian rapidly induced anesthesia using Fentanyl (an analgesic), Desflurane (anesthesia gas), Propofol (an anesthetic agent), and Rocuronium (a muscle relaxant or paralytic) (MC 458). The record is unclear which of these medications were administered to the patient before and/or during his intubation.[FN10]

A trio of documents in the patient's chart partially disclosed what occurred in the operating room before surgery was started. The first document was the Anesthesia Record grid (MC 458). According to the Anesthesia Record grid, the patient's blood pressure dropped from 160/100 at 9:30 a.m. to 100/50 at 9:50 a.m. Some time thereafter, Dr. Christian administered to the patient Atropine (an anticholinergic) and Epinephrine (a catecholamine) on two separate occasions. The administration of these medications raised the patient's blood pressure to 200/100. At 10:05 a.m., Dr. Christian administered to the patient beta-blockers Labetolol and Esmolol to lower his blood pressure to 140/60 (MC 458). If the grid is to be credited, the patient remained fully oxygenated at 99-100% at the 100% oxygen flow, while his blood pressure wildly fluctuated (MC 458).[FN11] On its face, the Anesthesia Record grid failed to disclose whether the patient experienced any adverse pre-surgical events in the operating room.

The second document was an untimed Cardiac Arrest Flowsheet signed by Dr. Christian (MC 523-524). The Cardiac Arrest Flowsheet revealed that the patient had suffered a serious adverse event in the operating room before surgery. According to the Cardiac Arrest Flowsheet, after the patient was intubated at 9:35 a.m., he went into a cardiac arrest and became pulseless at [*6]10:02 a.m.[FN12] By 10:40 a.m., however, he became stable and ready for surgery. The Cardiac Arrest Flowsheet did not record the vital signs and rhythm between those times but instead referred to the aforementioned Anesthesia Record grid. The Cardiac Arrest Flowsheet omitted the key fact; namely, how long the patient's cardiac arrest lasted. It only gave the start time of the patient's cardiac arrest at 10:02 a.m. but did not say when the cardiac arrest ended.

The third and final document was the Physician's Post Arrest Note also signed by Dr. Christian (MC 525-526). The Physician's Post Arrest Note disclosed that the patient's cardiac arrest lasted one minute. According to the Physician's Post Arrest Note, about 3-4 minutes after the patient was intubated at 9:35 a.m., he became bradycardic with the pulse rate of 45 beats per minute and hypotensive. Because he did not respond to Atropine, he received Epinephrine and was manually ventilated. His blood pressure then increased, and he became tachycardic. Thereupon, his heart rate was controlled with beta-blockers Esmolol and Labetolol. He was resuscitated, and his surgery commenced. Two entries on the Physician's Post Arrest Note stated that CPR lasted one minute. The initial entry, which stated "9:40-9:41 a.m.," was crossed out, with the word "error" written on top of it. The corrected entry stated "10:02-10:03 a.m." The corrected entry, which timed the patient's cardiac arrest at 10:02 a.m., was inconsistent with another entry in the same Physician's Post Arrest Note stating that the patient was intubated at 9:35 a.m. and that about "3-4" minutes post-intubation, he became bradycardic and hypotensive. As the Court reads the anesthesia records, the timing doesn't add up to establish a continuum. If the patient's cardiac arrest occurred 3-4 minutes post-intubation, that would mean that CPR began at about 9:40-9:41 a.m., which was written in the original (but now corrected) entry of when CPR began. Moreover, the timing of the patient's cardiac arrest at about "3-4" minutes post-intubation contained manual corrections: the numbers "3-4" are written over some other (illegible) numbers, rather than crossed over and written above the original numbers.[FN13] Thus, the Physician's Post Arrest Note was inconsistent on its face. If the patient was intubated at 9:35 a.m., he could not have gone into a cardiac arrest about 3-4 minutes post-intubation because the cardiac arrest was timed at 10:02 a.m.[FN14]

Turning from the anesthesia records to the pretrial testimony, the Court is presented only [*7]with pretrial testimony of Dr. Mu who claimed to have some knowledge of Dr. Christian's acts and omissions.[FN15] In parsing Dr. Mu's pretrial testimony, the Court finds that the patient suffered two adverse pre-surgical events in the operating room. The first pre-surgical event was oxygen deprivation which, in turn, led to the patient's cardiac arrest. According to Dr. Mu, he was elsewhere in the operating room and unaware of what was going on with anesthesia until Dr. Christian summoned him to the head of the operating table. There, Dr. Mu, at Dr. Christian's request, performed two chest compressions on the patient, while Dr. Christian was "ambu bagging"[FN16] the patient (Dr. Mu Tr. at 870:18-871:2; 887:12-22; 890:20-22). After the second compression, Dr. Christian instructed Dr. Mu to stop (Dr. Mu Tr. at 890:20-22). Shortly thereafter, Dr. Christian discovered that he had forgotten to turn on the patient's ventilator and said so to Dr. Mu.[FN17] According to Dr. Mu, once Dr. Christian realized this error, he switched on [*8]the ventilator and connected it to the patient's ETT in lieu of the ambu-bag.[FN18] Dr. Christian, looking "very upset and concerned" and "quite perplexed," offered Dr. Mu an alternative explanation of the cause of the patient's cardiac arrest; namely, that the patient had a "mucous plug" in his ETT and that "everything should be okay now" (Dr. Mu Tr. at 901:19-25). According to Dr. Mu (at 912:13, 900:11-16), he accepted Dr. Christian's "mucous plug" explanation at face value, as he believed, at the time, that Dr. Christian was appropriately oxygenating the patient.[FN19]

In addition to the oxygen-deprivation event, there was another pre-surgical event in the operating room when the patient experienced hypertension of 200/100 (the hypertension event). Dr. Mu testified (at 934:16-935:9, 1104:13-21) that after he was instructed by Dr. Christian to stop performing chest compressions, he observed on the monitor that the patient's blood pressure was "high" (200/100, according to the anesthesia grid). Dr. Mu testified that Dr. Christian then administered beta-blockers to reduce the patient's blood pressure. A sudden, steep rise in blood pressure is significant relative to intracranial pressure because, as Dr. Mu explained (at 146:19-23), "[t]here are generally three things in the head that comprise the intracranial cavity[:] brain, fluid and blood. If any of these components are more [i.e., higher than normal], you can have generalized increased pressure" (emphasis added).

In a harbinger of things to come, the patient's arterial blood gases (ABG), drawn at 10:10 a.m. (30 minutes before surgery) and reported at 10:29 a.m. (11 minutes before surgery), revealed abnormal values in the multiple categories of pH, pCO2, pO2, and HCO3 (MC 1510). According to Dr. Mu (at 908:18), these ABG values "look[ed] almost incompatible with life." However, Dr. Mu was unaware of these ABG values when he started operating on the patient at 10:40 a.m., even though he and Dr. Christian had "waited around making sure that [the patient] [*9]stayed stable" (Dr. Mu Tr. at 906:18-908:24, 902:5-6).[FN20]

Despite these two significant pre-surgical events in the operating room €" the oxygen-deprivation event and the hypertension event €" Dr. Mu did not modify the patient's forthcoming surgery in any way to guard against any potential increase in the patient's post-operative intraparenchymal cranial pressure (ICP); for example, by inserting a ventricular drain (ventriculostomy) or by removing a portion of the patient's skull (decompressive craniotomy).

Between 10:40 a.m. and 12:50 p.m., Dr. Mu operated on the patient (MC 445). Surgery consisted of (1) the left frontal craniectomy, (2) an evacuation of intracranial hemorrhage, subdural hematoma, and epidural hematoma, (3) the removal of the bullet, (4) debridement of the skull fracture, and (5) the insertion of an ICP monitor (MC 460-461). An ICP monitor provides readings of ICP of cerebrospinal fluid (CSF) but cannot reduce it. A different medical device, known as an intraparenchymal vent or drain, may be placed intraoperatively to provide relief from any post-operative increase in ICP. Dr. Mu did not insert an intraparenchymal drain in the patient's skull (or, for that matter, did anything else for the patient in the operating room) to provide for any relief of any potential increase in the patient's post-operative ICP. According to Dr. Mu (at 942:12-25-943:2, 662:14-15), a potential increase in the patient's post-operative ICP "was not high on [his] expectations."

In the course of surgery, the patient's arterial blood gases were drawn twice. At 11:25 a.m. (reported at 11:28 a.m.), the readings were abnormal in the pCO2, pO2, and HCO3 categories (MC 1511). At 12 noon (reported at 12:05 p.m.), the readings were abnormal in the pH, pO2, and HCO3 categories (MC 1512). Dr. Mu likewise did not know of these results at the time.

At 12:56 p.m., the first post-operative CT scan was performed (MC 320). The CT scan revealed that the GSWH itself caused only focal (rather than massive) damage. The radiologist's report read, in relevant part, that:

"The bullet did not penetrate the skull but bounced off and remained under the scalp. The bullet caused a comminuted fracture of the high frontal convexity. Epidural blood clot and an intracerebral blood clot in the frontal cortex [were noted]. Remarkably the mass effects were few and localized.This postop scan demonstrates the surgical changes with removal of some of the comminuted bone fragment and removal of the blood clot[,] the remaining space of which is now filled with air. It is quite superficial over the cortex. Again the mass effects are few.[[FN21]] Normal ventricles, fissures, cisterns and sulci. There is no discernible spread of subarachnoid blood" (emphasis added).

The second post-operative CT scan, performed the following day, found (1) "contused brain and blood in a thin layer of cortex immediately in the area of trauma," and (2) "[t]here has been edema and encephalomalacia in the subcortical white matter" (MC 324).[FN22]

At the conclusion of surgery and the end of anesthesia, the patient was discharged, with the ETT in place, to the post-operative acute care unit (PACU) at 1:05 p.m. At 1:30 p.m., Dr. Christian visited the patient in PACU, noting that the patient remained unconscious (MC 448). While the patient remained in PACU, his ICP rose overnight to above normal, prompting a next-day, mid-afternoon surgery for the insertion of a ventricular drain (ventriculostomy) by defendant Dr. Johnson (MC 468-469, 475, 533). The ventriculostomy report was significant for its gross finding that:

"The cerebrospinal fluid was under very high pressure. The drain was exited through a separate incision and drained about 10 cc. immediately" (MC 475).

The ventricular drain decreased the patient's ICP below 20 (MC 474-475). The third post-operative CT scan, performed one day after ventriculostomy, described the cerebral ventricles as being "down to only a sliver" (MC 304). The ventricular drain was surgically replaced on July 25 by Dr. Mu (MC 494-495). Some time after July 25, the ventricular drain was removed, resulting in the patient rapidly developing acute hydrocephalus (water on the brain). After a series of surgeries, the patient received a permanent shunt on September 5 (MC 881-882). A week later, he was transferred with a permanent brain injury from Wyckoff Hospital to Jamaica Hospital's TBI unit.

Following several hospitalizations, the patient currently resides in a long-term care facility. Now 35 years old, he has been dependent on the ministrations of others for all his basic needs for the past 11 years, as he is unable to eat, breathe, or clean after himself on his own. He has a feeding (PEG) tube in place for food, liquid, and medications. He breathes through a tracheostomy collar connected to an oxygen machine. He wears diapers. Whether he is in a persistent vegetative state or is at least minimally conscious to experience pain and suffering is one of the topics of contention in this case.

The Lawsuit

Two separate actions, later consolidated, assert two principal categories of claims against, inter alia, Dr. Mu, Wyckoff ER, and Wyckoff Hospital. These claims are for medical malpractice and lack of informed consent.[FN23] Dr. Mu, Wyckoff ER, and Wyckoff Hospital seek post-note of issue summary judgment dismissing each of these claims against them.[FN24] In the alternative, each of these defendants seek to reduce plaintiffs' damages by eliminating the [*10]category of damages attributable to the patient's past and future pain and suffering. Separately, the estate of Dr. Christian as the third-party defendant cross-moves for dismissal of plaintiffs' damages for the patient's past and future pain and suffering.[FN25] Next, plaintiffs seek to substitute the guardian ad litem, which is the relief to which no one objects. Lastly, plaintiffs seek leave to add Dr. Mu's practice, NeuroAxis, as a defendant.

Liability Analysis

Claims Against Dr. Mu

The Court denies the branch of Dr. Mu's summary judgment motion for an order dismissing the medical malpractice claim against him. At a minimum, the patient's medical chart and the competing expert affirmations by the parties' neurosurgeons raise five core material issues of fact, all centering around Dr. Mu's acts and omissions in the operating room.[FN26]

1. The length and severity of the patient's oxygen-deprivation event. The medical chart is unclear as to how long the patient was deprived of oxygen and whether such deprivation was partial (hypoxia) or complete (anoxia).[FN27] As noted, the patient's anesthesiology records were replete with inconsistencies and alterations. One portion of the patient's anesthesiology records indicated that the oxygen-deprivation event lasted only 3-4 minutes before it was discovered and CPR for 1 minute was administered. In contrast, another portion of the same anesthesiology records indicated that the oxygen-deprivation event lasted for so long as 27 minutes (counting from the time of the patient's intubation at 9:35 a.m. and until the end of his CPR at 10:02 a.m.). The Court, on summary judgment, is not a trier of fact and may not, as a matter of law, prefer one factual interpretation over the other. The choice is made more difficult because obviously the Court is not an expert on the subject matter of anesthesiology, and Dr. Mu, as the movant, has failed to submit an affirmation of an anesthesiologist (aside from an affirmation of a neurosurgeon) to assist the Court in the interpretation of the patient's anesthesiology records.[FN28]

2. The degree of Dr. Mu's awareness of the gravity of the patient's oxygen-deprivation event. There is an issue of fact as to the degree of Dr. Mu's awareness of the magnitude of Dr. Christian's alleged failure to ventilate (or adequately ventilate) the patient. It is for the jury to decide whether Dr. Christian's alleged statement to Dr. Mu about forgetting to turn on the ventilator, coupled with the fact that Dr. Mu performed chest compressions on the patient, should [*11]have put Dr. Mu on notice of the gravity of the patient's oxygen-deprivation event. Related to this issue is whether Dr. Mu should have been aware of the post-code ABG results that, according to the medical record, were available, as he and Dr. Christian were waiting for the patient to recover, before he started operating on the patient.

3. Dr. Mu's failure to modify surgery to insert a ventricular drain. The parties' neurosurgical experts disagree as to whether Dr. Mu departed from the accepted standards of neurosurgical care by failing to modify the forthcoming surgery by inserting intraoperatively a ventricular drain into the patient's skull to protect against a potential increase in the patient's post-operative ICP. One of the secondary complications of a traumatic brain injury (TBI) is raised ICP, typically because of brain swelling or the added volume of contusions and intracranial hematomas. During the initial stage of expansion of an intracranial mass, the rise in ICP is minimal because the volume of CSF and venous blood displaced from the skull is close to that of the expanding mass. In other words, the skull's compensating capacity fights back to keep ICP within normal limits. However, after this stage of spatial compensation is exhausted, ICP rises. A ventricular drain, if inserted intraoperatively, serves as an escape valve to relieve a rise in ICP.

But there are further complexities. Aside from TBI, the patient suffered in the operating room two pre-surgical events that may have caused (or contributed to) an increase in his post-operative ICP. As stated, he suffered an oxygen-deprivation event and a separate hypertension event in the operating room before surgery. Dr. Mu undisputedly knew, before starting surgery, that the patient had suffered both of these events. Indeed, a ventriculostomy performed by Dr. Johnson on the patient about 24 hours after Dr. Mu's surgery (1) disclosed a grossly increased ICP when the patient's skull was opened and CSF was immediately drained, and (2) resulted in the reduction and stabilization of the patient's post-operative ICP. Additionally, the second post-operative CT head scan, performed about an hour before ventriculostomy, disclosed "edema and encephalomalacia in the subcortical white matter" that arguably had resulted from the increased post-operative ICP. In this regard, plaintiffs' expert maintains (in ¶ 56 of his or her affirmation) that "even if Dr. Mu had not felt it necessary to insert a ventricular drain based upon the underlying conditions for which he performed . . . surgery, the hypoxic incident in the operating room should have led him to do so." In contrast, Dr. Mu's own expert contends (in ¶ 31 of his affirmation) that "the patient's increased post-op ICPs were the result of brain damage [i.e., secondary to TBI], not the cause of [the hypoxic event]" (emphasis omitted).

One other point is worth mentioning before moving to the next issue. Dr. Mu's expert asserts (in ¶ 69 of his affirmation) that "[t]he preoperative CT scan reveals that [the patient] had small, almost slit-like ventricles in the frontal area, which appeared to be about 2 mm in diameter," and that placing a ventricular drain in such tight ventricles would have been difficult for Dr. Mu to perform (emphasis added). However, it appear Dr. Mu's expert is mistaken on this point. The preoperative CT scan €" and there was only one preoperative CT scan in this case €" was silent about the ventricular size (MC 319). In fact, the first post-operative CT scan described the patient's ventricles as "normal" (MC 320). Likewise, the second post-operative CT scan, performed on the day of, but before, ventriculostomy, also described the patient's ventricular system as "normal" (MC 324). Rather, it was the third post-operative CT scan, performed on July 20, one day after ventriculostomy, that characterized the patient's ventricles as being "down to only a sliver" and apparently is the document which Dr. Mu's expert mischaracterizes. (MC [*12]304).

4. Dr. Mu's failure to perform a more radical surgery. A related issue is whether, under the circumstances of this case when the patient suffered a pre-surgical oxygen-deprivation event (plus a separate hypertension event) in the operating room and where no ventricular drain was to be inserted, Dr. Mu should have performed a more radical type of surgery known as decompressive craniotomy or bone flap procedure. According to plaintiffs' expert (in ¶¶ 58-59 of his or her affirmation), such surgery would have resulted in the removal of a section of the patient's skull bone to allow the brain to expand in the event of a post-operative increase in the ICP, provided Dr. Mu with better access to the operative site, and allowed Dr. Mu to remove all of the contusion. In opposition, defense expert ignores this issue altogether. Rather, Dr. Mu's defense counsel takes a position that plaintiffs' theory of "decompressive craniotomy" or "bone flap procedure" falls outside the allegations of plaintiffs' initial and supplemental bills of particulars, which allege that Dr. Mu failed to perform "decompression surgery." However, by reading "decompressive craniotomy" or "bone flap procedure" into a general phrase "decompression surgery," plaintiffs have not pleaded a new theory of liability.[FN29] Moreover, plaintiffs' advancement of this theory could not have surprised or prejudiced Dr. Mu, who was questioned about "decompressive surgery" at pages 665:21-667:2 of his pretrial deposition (see Valenti v Camins, 95 AD3d 519, 522 [1st Dept 2012] [in the absence of surprise or prejudice to defendant, plaintiff could defeat summary judgment by alleging that defendant committed malpractice by "placing a screw at the C7 level of the cervical spine," even though plaintiff generally alleged in his bill of particulars that he was injured by "improper placement of orthopedic hardware"]). Accordingly, the Court finds that Dr. Mu has failed to make a prima facie showing that "decompressive surgery," such as "decompressive craniotomy" or "bone flap procedure," should not have been performed on the patient in this case.

5. The overlap between the four forces that caused or contributed to the patient's brain injury. On the subject of causation, the Court cannot isolate with any degree of certainty: (1) the natural sequelae (bleeding, swelling, contusion, etc.) of the patient's GSWH, (2) the patient's pre-surgical oxygen-deprivation event in the operating room, (3) the patient's pre-surgical hypertension event in the operating room, and (4) the post-operative increase in the patient's ICP. All four forces were operative, at least for some period of time, in the course of 24 hours of July 18-19. The patient sustained a GSWH in the early morning of July 18; he suffered a pre-surgical oxygen-deprivation event, plus a separate pre-surgical hypertension event, in the operating room at about 10 a.m. on the same day; and his ICP started rising in the night of July 18-19. The Court cannot elevate one particular force over the others and characterize it as the sole proximate cause [*13]of the patient's permanent brain injury.[FN30] The Court, therefore, declines to make an impermissible leap of faith (advanced in ¶ 72 of Dr. Mu's expert affirmation) that all of the patient's injuries "are attributable, in their entirety, to the severe anoxic insult [i.e., the oxygen-deprivation event] sustained in the operating room, prior to surgery, as a result of Dr. Christian's failure to turn on the ventilator" (emphasis added). The oxygen-deprivation event does not present an "all or nothing" scenario where, on summary judgment, Dr. Mu could be excused as a matter of law from any liability for any of his alleged acts or omissions related to the patient's peri-operative care. In this regard, the Court notes that Dr. Mu's expert repeatedly hedges his opinions by using such words as "consistent with" (¶¶ 22-23, 25, 31, 35, 45, 51, 62-64, 68-69, 73), "generally consistent with" (¶ 45), "fully consistent with" (¶ 68), "not entirely consistent" (¶ 52), "to be expected" (¶ 29), "likely to have been" (¶ 45), and "entirely compatible" (¶ 50) in explaining away Dr. Mu's alleged acts or omissions regarding Dr. Mu's peri-operative care of the patient.

Moreover, there are contradictions between the opinions of Dr. Mu's expert and Dr. Mu's pretrial testimony. For example, Dr. Mu's expert maintains (in ¶ 60 of his affirmation) that the patient's GSWH was not life-threatening and that "surgery could have been performed either that day (July 18, 2002) or the following day and that the timing would have had no effect on the patient's outcome or mental state." In contrast, Dr. Mu testified (at 671:4-13, 686:18-25, 835:3-9) that he perceived no alternative to performing surgery, which, in his opinion, was to be performed as soon as possible.

Another problem with Dr. Mu's expert is, in the Court's view, his undue reliance on Dr. Mu's pretrial testimony that Dr. Christian had orally admitted that he had forgotten to turn on the ventilator. Dr. Mu's pretrial testimony, in and of itself, is not without contradictions. For example, Dr. Mu testified (at 205:21-23, 243:24-244:6, 292:22) that PA Strauss had told him that he (PA Strauss) had smelled alcohol on the patient's breath and that the patient's blood alcohol level of 38.22 was "high."[FN31] Yet, PA Strauss did not consider the patient to be intoxicated and had no reason to inform Dr. Mu that the patient was intoxicated (PA Strauss Tr. at 138:8-18). If PA Strauss' deposition testimony regarding the patient's lack of intoxication is credited while Dr. Mu's deposition testimony that, as per PA Strauss, the patient was intoxicated is discounted, Dr. Mu's veracity becomes suspect, as it is equally plausible that Dr. Mu's uncorroborated testimony about Dr. Christian's admission of error may be inaccurate. Significantly, PA Strauss, who was then present in the operating room, either did not hear or could not recall Dr. Christian's alleged admission (PA Strauss Tr at 21:17-19, 204:2-4).

The existence of the aforementioned five core material issues of fact precludes summary judgment in Dr. Mu's favor with respect to plaintiffs' medical malpractice claim against him (see [*14]Orsi v Haralabatos, 20 NY3d 1079, 1080 [2013]; Loaiza v Lam, 107 AD3d 951, 953 [2d Dept 2013]). Whether plaintiffs would prevail against Dr. Mu at trial is another question, but material issues of fact with respect to Dr. Mu's alleged departures exist, as do triable issues of fact concerning proximate cause (see Farkas v Saary, 191 AD2d 178, 181 [1st Dept 1993]).

Turning to plaintiffs' informed consent claim, it is well-established that when surgery is of an emergency nature, such claim is not viable (see Public Health Law § 2805-d [2] ["The right of action to recover for medical . . . malpractice based on a lack of informed consent is limited to those cases involving . . . non-emergency treatment, procedure or surgery. . . ."]; Connelly v Warner, 248 AD2d 941, 942 [4th Dept 1998]). Because plaintiffs' theory of liability against Dr. Mu, as set forth in their supplemental verified bill of particulars, dated May 29, 2012, and as further articulated in the affidavit of their expert neurosurgeon, is that the patient's surgery was an emergency, no claim for lack of informed consent lies. In this regard, the Court notes that the affirmation of plaintiffs' neurosurgeon does not address the issue of informed consent at all. Accordingly, the branch of Dr. Mu's motion for summary judgment dismissing the informed consent claim is granted, and such claim is dismissed (see Wilson v Buffa, 294 AD2d 357, 358 [2d Dept 2002], lv denied 98 NY2d 611 [2002]).

Claims Against Wyckoff ER

It is undisputed that the patient presented to Wyckoff ER with a penetrating TBI. Despite his presentation with a TBI, he was able to talk (PA Strauss Tr at 113:17-18). This is significant because if a patient talks after a TBI, that indicates that the brain has not sustained a "diffuse injury" sufficient to produce the initial coma, and thus his chances for survival are higher than those individuals who are brought to the ER in a coma. Indeed, the patient's TBI on presentation to Wyckoff ER appeared to be mild, as evidenced by the Glasgow Coma Score of 15, which is the highest score on the scale. However, by the time he was transferred to the holding area on his way to the operating room, he was unconscious and unresponsive to verbal stimulus. Whereas the cause of the patient's interim deterioration in his level of consciousness is disputed (with Wyckoff ER asserting that it was due to his fatigue and alcohol intoxication, which, however, was mild judging from his low blood alcohol level [PA Strauss Tr 138:8-18]), it cannot be denied that Wyckoff ER did little to diagnose and treat the patient's TBI while he stayed in the ER. The time line of events following the patient's presentation to Wyckoff ER speaks for itself: counting from the time of his presentation to the ER, 3 hours passed before the patient was taken for a CT scan; 4 hours passed before he received Mannitol (an osmotic diuretic) to reduce ICP; 4½ hours passed before he was transported to the operating room; and nearly 6 hours passed before his surgery was started. While in the ER, the patient was only X-rayed and received IV fluids, an antibiotic, and a tetanus shot. That, in and of itself, is the full extent of the ER's diagnostic evaluation and medical treatment of the patient. In fact, the ER initially had recognized that the patient needed a CT scan and placed an order to that effect; however, it was only after PA Strauss, a member of the neurosurgical service, arrived and re-ordered the CT scan that one was performed, even though the examining ER physician had the authority to have a CT scan performed (PA Strauss Tr. at 116:5-20). The ER's lack of a proper diagnostic evaluation of the patient while he was under its care is further evidenced by its confusion as to which medical service the patient should be referred: he was initially referred to the surgical service (as evidenced by several admitting physician notes from the surgical service [PA Strauss Tr at [*15]118:18-120:10]), but subsequently he was referred to the neurosurgical service. It can be taken as a given that a critical objective for management of a TBI is a coordinated work by the ER, surgical service (critical care), and neurosurgical service. Here, however, the ER initially (and the surgical service subsequently) did little for the patient but shifted the entire responsibility for the patient's care to the neurosurgical duo of Dr. Mu and PA Strauss.

The affirmation of Wyckoff ER's expert fails to establish a prima facie showing that Wyckoff ER did not deviate from the accepted standards of medical care or that its lack of care did not play a substantial factor in causing the patient's brain injury. Its expert's four-page, 15-paragraph affirmation is conclusory and unsupported by the record. However, even if defendant Wyckoff had met its prima case burden, the opposing affirmation of plaintiffs' neurosurgeon raises triable issues of material fact as to the timing and the extent of the diagnostic and medical procedures which should have been performed on the patient in the ER. Accordingly, the branch of Wyckoff ER's summary judgment motion for dismissal of the medical malpractice claim against it is denied (see e.g. Fritz v Burman, 107 AD3d 936, 941 [2d Dept 2013]; Roques v Noble, 73 AD3d 204, 206, 207 [1st Dept 2010]).

The remaining branch of Wyckoff ER's summary judgment motion for dismissal of plaintiffs' informed consent claim against it is granted. It is undisputed that Wyckoff ER did not perform a "non-emergency treatment, procedure or surgery" or "a diagnostic procedure which involved invasion or disruption of the integrity of the body" (Mitchell v Lograno, 108 AD3d 689, 693 [2d Dept 2013] [citation omitted]).

Claims Against Wyckoff Hospital

The record establishes that the defendant Dr. Mu was not a Wyckoff Hospital employee at the time of the alleged malpractice. Where a physician was not a hospital employee, the hospital nonetheless may be vicariously liable for the acts or omissions of the independent physician where a patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician (see Rivera v County of Suffolk, 290 AD2d 430, 432 [2d Dept 2002]).

Turning to Wyckoff ER, its status in relation to Wyckoff Hospital is unclear, as no one from Wyckoff ER has been deposed in this case.[FN32] For present purposes, however, it is sufficient that the patient's medical chart treats Wyckoff ER and Wyckoff Hospital as one indivisible entity. Thus, the same rationale that holds hospitals vicariously liable for the acts or omissions of independent physicians applies with equal force to an entity, such as Wyckoff ER, that attends to emergency services at the hospital.

As stated, the patient walked into Wyckoff Hospital on his own. He did not request a specific physician or a specific medical practice, and Dr. Mu and Wyckoff ER undertook to treat him. Under these circumstances, there is a question of fact as to whether the patient could properly assume that Dr. Mu and Wyckoff ER were acting on behalf of Wyckoff Hospital (see Schiavone v Victory Mem. Hosp., 292 AD2d 365, 366 [2d Dept 2002]). Accordingly, Wyckoff Hospital's cross motion for an order, pursuant to CPLR 3211 and 3212, dismissing all claims of vicarious liability against it for the conduct of Dr. Mu, Wyckoff ER, and Dr. Johnson is deemed, pursuant to CPLR 3211 (c), as one for summary judgment and, thereupon, is granted solely with [*16]respect to Dr. Johnson and is otherwise denied. In denying this motion, the Court cautions that its ruling is limited; the Court does not hold Wyckoff Hospital vicariously liable for the acts or omissions of Dr. Mu or Wyckoff ER, but only that there are triable issues of material fact regarding Wyckoff Hospital's vicarious liability.

Damages Analysis

The next topic of contention turns on whether the patient has experienced (and continues to experience) "some level of [cognitive] awareness" and, therefore, is entitled to recover damages for his past and future pain and suffering (see McDougard v Garber, 73 NY2d 246, 255 [1989]).[FN33] Although the bedside examinations reflected in the medical records describe the patient as responding, from time to time, to various stimuli, the parties' experts disagree as to whether his responses were purely reflexive on the one hand (the defense position) or whether his responses were voluntary, reproducible, and purposeful on the other hand (plaintiffs' position). However, the data on which the defense relies €" bedside observations €" are inherently unreliable, resulting in ambiguous and inconsistent results. Because the law does not require the factfinder to "sort out varying degrees of cognition" (McDougard, 73 NY2d at 255), the defense must overcome a fairly high hurdle on summary judgment to obtain dismissal of the claim for damages for past and future pain and suffering. Defense has offered no imaging records (such as a CT scan or a functional MRI) to make a prima facie showing that the patient is (and has been) completely without some level of awareness and cognition. The Court finds that defendants have failed to make a prima facie showing on this issue without regard to the sufficiency of plaintiffs' submissions (see Saguid v Kingston Hosp., 213 AD2d 770, 772 [3d Dept 1995], appeal dismissed 87 NY2d 861 [1995], lv denied 88 NY2d 868 [1996]). In any event, plaintiffs' expert neurologist (in ¶ 22 of his or her affirmation) has raised a triable issue of fact by noting that the findings on the patient's October 18, 2006 CT scan "demonstrate an intact anatomic substrate enabling the capacity for awareness and the ability to experience conscious pain and suffering." Accordingly, the branches of the defendants' motions or cross motions for summary judgment dismissing the portion of plaintiffs' damages that are attributable to the patient's past and future pain and suffering are denied.[FN34]

Dr. Mu's Request to Limit Issues Pursuant to CPLR 3212 (g)

In his reply, Dr. Mu requests that, in the event his summary judgment motion is denied or is granted only in part, the Court limit the issues pursuant to CPLR 3212 (g) to ascertain which facts are not in dispute, and, furthermore, that the Court grant him summary judgment as to any theory of liability as to which the Court finds that plaintiffs have failed to raise an issue of fact. [*17]CPLR 3212 (g) provides that if a summary judgment motion is denied or granted only in part:

"the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be deemed established for all purposes in the action. The court may make any order as may aid in the disposition of the action."

As Professor Siegel notes (in § 286 of NY Prac at 487 [5th ed 2011]), "CPLR 3212 (g) appears to be little used" (id.). Research confirms that CPLR 3212 (g) has been applied to cases where the underlying facts cannot be reasonably disputed or are expressly conceded (see e.g. Medina v Rodriguez, 92 AD3d 850 [2d Dept 2012] [non-liability of a rear-seat passenger in the happening of a two-car accident]; Iskalo Elec. Tower LLC v Stantec Consulting Serv., Inc., 79 AD3d 1605, 1607 [4th Dept 2010] [non-compliance with notice requirements in a lease]; Lambos v Weintraub, 256 AD2d 446, 447 [2d Dept 1998] [express concessions by plaintiffs' medical expert in his affidavit in opposition to defendant's summary judgment motion that defendant properly and timely diagnosed the plaintiff's decedent's condition]; Kamyr, Inc. v St. Paul Surplus Lines Ins. Co., 152 AD2d 62, 65 [3d Dept 1989] [untimeliness of plaintiffs' notice of claim to their insurer and their insurer's disclaimer of coverage]).

The Court finds it impracticable to invoke CPLR 3212 (g) in this case. The parties have contested the timing and significance of most of the underlying events. The record is voluminous, occupying three USPS-sized boxes. The subject matter of how Wyckoff ER, the surgical service, and the neurosurgical service should have worked together as a team to treat the patient's penetrating TBI is complex. The Court lacks resources to sift the record with a fine sieve to find those factual issues which are undisputed. To the extent that some of the facts do not appear to be disputed, the Court has so stated in this decision and order.

Plaintiffs' Request to Name NeuroAxis as Additional Defendant

Finally, plaintiffs seek leave, pursuant to CPLR 3025 (b), to name Dr. Mu's practice, NeuroAxis, as an additional defendant. The record indicates that Dr. Mu was first deposed on February 15, 2007, outside the statute of limitations, when he testified (at 14:7-15) that he was a member of NeuroAxis at the time of the underlying events.[FN35] "The relation-back doctrine enables a plaintiff to correct a pleading error by adding . . . a new party after the statutory limitations period has expired" (Monir v Khandakar, 30 AD3d 487, 488 [2d Dept 2006] [internal quotation marks omitted]). Three conditions must be satisfied for plaintiffs' claims against NeuroAxis to relate back to their claim against Dr. Mu. First, all of the claims must arise out of the same conduct, occurrence, or transaction. Second, NeuroAxis must be united in interest with Dr. Mu so that it can be charged with notice of the commencement of this action and not be prejudiced in maintaining its defense on the merits. Third, NeuroAxis must have actually or constructively known that, but for plaintiffs' mistake as to the identity of the proper party, this [*18]action would have been brought against it as well (see Monir, 30 AD3d at 488). Here, Dr. Mu [FN36] challenges the third element of the relation-back doctrine, arguing that plaintiffs cannot demonstrate that they made a mistake in failing to join NeuroAxis or, alternatively, that they deliberately chose not to join NeuroAxis in this action.[FN37] Dr. Mu maintains that plaintiffs could have easily ascertained that he was affiliated with NeuroAxis before they deposed him. He points out that he and NeuroAxis share the same address, that his business cards bear the name of NeuroAxis, and that anyone entering the reception area of his office would have noticed his business cards.

Dr. Mu's arguments are not well-taken. It is undisputed that he was first deposed after the statute of limitations expired. It is further undisputed that the patient's medical chart does not mention NeuroAxis. But for his pretrial deposition, plaintiffs would not have been able to ascertain from Dr. Mu personally whether he was associated with NeuroAxis at the time of the underlying events. Moreover, plaintiffs seek to hold NeuroAxis vicariously liable solely for the acts or omissions of Dr. Mu, as they concede in their papers that their claims do not extend to other members of NeuroAxis, such as Dr. Johnson. Likewise, Dr. Mu's argument that his association with NeuroAxis was public knowledge and that plaintiffs should have learned of that fact by visiting his office before the statute of limitations expired, is unpersuasive. Lastly, Dr. Mu's argument that plaintiffs are attempting to amend their complaint "more than five years after [his] deposition" (Goldberg Aff., ¶ 21) is misleading. Dr. Mu was deposed over the course of four years, with his last session concluded in March 2011, about two years after plaintiffs served the instant cross motion. Finally and crucially, NeuroAxis (by Dr. Mu) has demonstrated no prejudice in being named as an additional defendant in this case. Accordingly, the branch of plaintiffs' cross motion for leave to name NeuroAxis as an additional defendant is granted (see Buran v Coupal, 87 NY2d 173, 182 [1995]; Rivera v Fishkin, 48 AD3d 663, 664 [2d Dept 2008]; cf. Holster v Ross, 45 AD3d 640, 642 [2d Dept 2007]).

Plaintiffs shall serve the proposed amended complaint, in the form annexed as Exhibit D to plaintiffs' cross motion (with a further amendment to delete all references to Dr. Johnson who is dismissed from this case) concurrently with the service of a copy of this decision and order upon counsel to the remaining defendants and the third-party defendant.

Plaintiffs shall effectuate service of the amended summons and complaint on NeuroAxis in accordance with the CPLR. The Court notes, for the avoidance of future service errors, that, in the course of this action, NeuroAxis has relocated its office to 80-02 Kew Gardens Road, Kew Gardens, NY 11415 (see Affidavit of Gloria McHugh, office manager of NeuroAxis, dated June 17, 2013, ¶ 2).

This constitutes the decision and order of the Court.

E N T E R,

J. S. C. Footnotes

Footnote 1:All references are to the year 2002, unless otherwise indicated.

Footnote 2:The bullet measured 1.2 by 0.6 centimeters and was slightly deformed (MC 471).

Footnote 3:"MC" refers to the patient's medical chart at Wyckoff ER and Wyckoff Hospital.

Footnote 4:See Dr. Mu Tr. at 351:9-11 ("I think the [patient's] admission [to the neurosurgical service] occurred when I took him to the operating room.").

Footnote 5:Although the pre-operative CT scan is untimed, the first post-operative CT scan pegs the time of the pre-operative CT scan at 7:55 a.m.

Footnote 6:The Glasgow Coma Scale (GCS) is an assessment of how a major trauma has affected a patient's level of consciousness. The parameters are straightforward: (1) a numerical score from 1 to 4 (with 4 being the best response) is given for the trauma patient's ability to open and close his or her eyes on command; (2) a score of 1 to 5 (with 5 being the best response) is given for how well the trauma patient responds orally to questions; and (3) a score of 1 to 6 (with 6 being the best response) is given for how well the trauma patient is able to move his or her body in response to verbal, painful, and other stimuli. These numbers are reported as three individual scores that are then added to come up with an overall GCS score. The lower the number scored on the scale, the greater the likelihood that the trauma patient's brain is not functioning optimally. The highest a trauma patient may score is 15.

Footnote 7:Because Dr. Mu made no entries in the patient's chart until 9 a.m., his position that he arrived at Wyckoff Hospital at about 8 a.m. is based solely on his deposition testimony.

Footnote 8:See Nurse Halina Feder (then known as Halina Pekar Fedorowitz), a holding area nurse, Tr. at 34:10-11; see also Nurse Welda Gejon, a circulating nurse, Tr. at 32:18-19; 36:16-37:2.

Footnote 9:The rating of "4" means that the patient had a severe systemic disease that is a constant threat to life, and the qualifier "E" means that his surgery was an emergency.

Footnote 10:See Allen M. Williams (nonparty anesthesiologist) Tr. at 37:4-12 ("Looking at the medications written on the anesthesia grid and the time that they were written, the patient would have either already been intubated or about to be. . . . Actually there is no way of telling whether the patient was already intubated when these drugs were given or if the intubation occurred after these drugs were given."); see also Williams Tr. at 39:8-11 ("The anesthesia grid begins at 0930. The medications are actually written before the marking[s] [on the grid], so I can't really say when they were actually given.").

Footnote 11:According to Nurse Gejon (at 119:7-12 of her deposition), neither she nor any of the other nurses in the operating room documented the patient's oxygen saturation. Nurse Gejon testified (at 50:14-16; 53:16-18; 65:5-16; 80:7-9) that the anesthesiologist was responsible for pulse oximetry; he connected a pulse oximeter to the patient in the operating room and was responsible for monitoring the patient's oxygen saturation, along with other vital signs, during anesthesia and surgery.

Footnote 12:See Williams Tr. at 30:21-31:4 (testifying, based on his review of the patient's chart, that the patient's cardiac arrest occurred post-intubation).

Footnote 13:Dr. Mu's expert states (in ¶ 23 of his affirmation) that Dr. Christian wrote "3-4" over the original digits of "5-7," meaning that the patient's cardiac arrest lasted 5-7 minutes, rather than 3-4 minutes. Dr. Mu's interpretation of Dr. Christian's handwriting is not supported by the evidence.

Footnote 14:Dr. Mu's expert asserts (in ¶¶ 23-24 and 75 of his affirmation) that Dr. Christian falsified the anesthesia records because accurate anesthesia records would have been unfavorable to his interest. On the record before the Court, however, there is no proof one way or the other as to whether it was Dr. Christian who altered the anesthesia records. Defense has offered no handwriting expert to establish that the alterations were made by the same hand, and its principal witness, Dr. Mu, did not witness Dr. Christian altering the anesthesia records.

Footnote 15:Besides Dr. Christian (since deceased and undeposed), there was other personnel in the operating room at the time of the patient's cardiac arrest. They were Dr. Mu, PA Strauss, and several operating room nurses. PA Strauss claimed to have no substantive knowledge of what occurred in the operating room. The operating nurses had even less knowledge.

Footnote 16:An "Ambu bag" is a "proprietary name for a self-reinflating bag with nonrebreathing valves to provide positive pressure ventilation during resuscitation with oxygen or air" (Stedman's Medical Dictionary, 27th online edition).

Footnote 17:Dr. Mu's exact pretrial testimony (at 894:12-17) on this point is significant: "Q. And did he [Dr. Christian] continue to bag [the patient] after you [Dr. Mu] stopped chest compressions? A. At that point he [Dr. Christian] . . . took the bag off and was placing him back on the respirator [i.e., the ventilator], and I remember him [Dr. Christian] saying €" excuse the language €" "Oh, shit, I forgot to turn on the ventilator." The Court is making no determination in this decision and order regarding whether Dr. Christian's statement to Dr. Mu, which was heard solely by Dr. Mu and apparently by no one else in the operating room, is admissible under the excited utterance and/or the present sense impression exceptions to the hearsay rule (cf. Kutza v Bovis Lend Lease LMB, Inc., 95 AD3d 590, 591 [1st Dept 2012]). To admit this statement in support of Dr. Mu's motion for summary judgment would be to credit one portion of his pretrial testimony €" that Dr. Christian admitted his failure to turn on the ventilator €" while disregarding his other pretrial testimony €" that he thought nothing of Dr. Christian's admission. The law dictates the opposite result. On summary judgment, the facts are viewed in the light most favorable to plaintiffs as the non-moving parties who are accorded the benefit of every reasonable inference (see Gallagher v New York Post, 14 NY3d 83, 89 [2010]).

Footnote 18:An anesthesia machine is equipped with a switch to turn the ventilator on and off (see Williams Tr. at 61:23-62:5). An anesthesia machine is not equipped with an alarm to alert the anesthesiologist when the ventilator is off (see Williams Tr. at 75:3-9 ["you (the anesthesiologist) are either ventilating the patient by hand (i.e., by an ambu-bag) or the machine is ventilating the patient . . . and if the switch is off and you don't want the machine to be ventilating the patient there is no alarm that is going to go off, there is no alarm that needs to go off.").

Footnote 19:The following colloquy at Dr. Mu's pretrial deposition (at 912:11-13) is notable: "Q. Did you ever tell [the patient's family] that Dr. Christian told you that he forgot to turn on the ventilator? A. No, I didn't think anything of it at that time." Later in his deposition, however, Dr. Mu conceded (at 1015:15-19) that the patient's cardiac arrest was a "significant event." Nonetheless, Dr. Mu's operating report does not disclose that he performed chest compressions on the patient in the operating room. When, at his pretrial deposition, Dr. Mu was questioned about this omission, he rationalized chest compressions as not falling under the umbrella of surgical services and, therefore, he was under no obligation to disclose them in his operating report (Dr. Mu Tr. at 939:20-24).

Footnote 20:According to Dr. Mu, these results, if then known by him, may have been crucial. Dr. Mu testified (at 868:16-18) that "if the patient was unstable and the anesthesiologist told [him that the patient] was unstable, . . . [he] may not do the operation."

Footnote 21:Although Dr. Mu's expert (in ¶ 29 of his affirmation) interprets the word "again" to refer to the preoperative CT scan, the word "again" may actually refer to the radiologist's prior remark in the same post-operative report. (Footnote by the Court.)

Footnote 22:Encephalomalacia is defined as an "[a]bnormal softness of the cerebral parenchyma often due to ischemia or infarction" (Stedman's Medical Dictionary, 27th online edition).

Footnote 23:The complaints in this consolidated action also assert a claim of negligent credentialing against each of Wyckoff ER and Wyckoff Hospital. The parties do not address this type of claim, and neither does the Court.

Footnote 24:Because plaintiffs do not object to the dismissal of their claims against Dr. Johnson, the Court will not address this defendant.

Footnote 25:The estate of Dr. Christian is not a direct defendant in the principal action.

Footnote 26:The existence of these issues of fact obviates the need for the Court to address Dr. Mu's alleged acts and omissions outside the operating room, such as his allegedly untimely arrival at Wyckoff Hospital, the delayed scheduling of surgery, and his allegedly inadequate post-operative care of the patient.

Footnote 27:The Court uses the phrase "oxygen deprivation" as a collective term for hypoxia and anoxia.

Footnote 28:The Court rejects as speculative and unsupported the backward extrapolation by Dr. Mu's expert from the 10:10 a.m. results of the patient's ABG readings to estimate the "vicinity" of the ABG levels seven minutes earlier at 10:03 a.m. when the patient's cardiac arrest was reversed (see Dr. Mu's expert affirmation, ¶ 21).

Footnote 29:See Stedman's Medical Dictionary, 27th online ed (the term "decompression" includes "subtemporal decompression," which means "temporal craniectomy and opening of the dura over the inferolateral surface of the temporal lobe") (the term "craniotomy" includes an "[o]pening into the skull") (the term "bone flap" is defined as a "portion of cranium removed but left attached to overlying muscle-fascial blood supply").

Footnote 30:See Monahan v St. Joseph's Hosp. & Health Care Ctr., 82 AD2d 102, 108 (4th Dept 1981) (where the trial court was faced with the operation of two independent forces, one being the physician's conduct and the other being the course of plaintiff's illness, it was error for the trial court to dismiss the complaint against the physician at the conclusion of plaintiff's case).

Footnote 31:In his last deposition session, however, Dr. Mu testified (at 1055:8-1056:7) that he could not "tell for sure" whether the patient was intoxicated.

Footnote 32:The named Wyckoff ER physician Hector Gil de Rubio, M.D., failed to appear in this case.

Footnote 33:Somewhat inconsistently, plaintiffs allege in their supplemental bill of particulars that the patient is in a persistent vegetative state, which suggests lack of conscious awareness, while he is simultaneously experiencing pain and suffering, which suggests conscious awareness.

Footnote 34:The decisions on which the defense relies (Cummins v County of Onondaga, 84 NY2d 322 [1994]; Fiederlein v New York City Health & Hosp. Corp., 80 AD2d 821 [1st Dept 1981], affd 56 NY2d 573 [1982]) are factually inapposite as they both involved sudden drowning accidents of previously physically healthy adults. In contrast, the patient here has lived with a permanent brain injury for over 11 years.

Footnote 35:Whereas Dr. Mu testified (at 14:13-15 of his pretrial deposition) that he was a member of NeuroAxis at the time of the underlying events, he now asserts (in ¶ 2 of his June 17, 2013 affidavit) that he became a shareholder of NeuroAxis in January 2005, after the events in question, and that before January 2005 (i.e., at the time of the underlying events), he had been employed by NeuroAxis.

Footnote 36:The arguments against the application of the relation-back doctrine are advanced by Dr. Mu, rather than by NeuroAxis, even though NeuroAxis is the affected party, thus confirming the unity of interest between the two.

Footnote 37:Dr. Mu concedes the other two elements of the relation-back doctrine (see Affirmation in Opposition by his counsel, Barbara D. Goldberg, dated June 17, 2013, ¶ 12).