Robinson v Good Samaritan Hosp.

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Robinson v Good Samaritan Hosp. 2017 NY Slip Op 31918(U) August 30, 2017 Supreme Court, Suffolk County Docket Number: 08-42851 Judge: Thomas F. Whelan 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] col'Y SHORT FORM ORDER INDEX No. 08-42851 CAL. No. 16-01854MM SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS WHELAN Justice of the Supreme Cowt / , MOTION DATE 2-23-17 (005. 008) MOTION DATE 3-6-17 (006. 007) MOTION DATE 3-9-17 (009, 010. 011) ADJ. DATE _4!._c-2:!:!...4.!....-~17:.___ _ _ __ # 009- MotD Mot. Seq. # 005 - MotD # 006- MotD # 010 - MG # 011 - MG # 007 - MD # 008 - MG ---------------------------------------------------------------){ JACQUELINE Y. ROBINSON, as Administratrix of the Estate of LATOSH R. KNIGHT-SCOTT alk/a LATOSH RENEE KNIGHT-SCOTT, Plaintiff, - against GOOD SAMARITAN HOSPITAL, MICHELLE GEBHARD, M.D., MICHAEL R. MENDOLA, M.D., DAVID BRAUNSTEIN, M.D., JEFFREY LIEBERMAN, M.D., SHARR.AM D. SHAMEKH, M.D., ROBIN MACKOFF, M.D., WILLIAM SIERRA, M.D., SHAHRAM HORMOZI, M.D., RALPH BARBATO, M.D., GERRY RUBIN,. M.D., and NARENDRA SINGH, M.D., Defendants. BRlAN P. NEARY, ESQ. Attorney for Plaintiff 50 Elm Street Huntington, New York 11743 BENVENUTO & SLATTERY Attorney for Defendant Rubin 1800 Northern Blvd. Roslyn, New York 11576 GABRIELE & MARANO, LLP Attorney for Defendants Hormozi and Singh 100 Quentin Roosevelt Blvd., Suite 100 P.O. Box 8022 Garden City, New York 11530 LAW OFFICE OF ANTHONY P. VARDARO P.C. Attorney for Defendants Braunstein and Lieberman 732 Smithtown Bypass, Suite 203 Smithtown, New York 11787 ---------------------------------------------------------------){ Upon the following papers munbered I to 253 read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1- 111; l 19-15 l; l 54-179; 182-193; J 96 - 213; 216- 235; 238-25 l ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 112-l l 6 ; Replying Affidavits and supporting papers JI 7- 118; 152-153; 180-18 l; 194-195; 214- 2 l 5; 236- 237; 252-?53 Other _ ; (and aftet hem:ing eot111:sel i11 supporhnd opposed to the liiOtio11) it is, [* 2] Rohinson v (iood Samaritan l losp. Index o. 08-42851 Page 2 ORDL'Rl:..D Lhal the motion (seq. 005 ) of <lcll:ndants William Sierra. Pf\. and (iood Sa111aritan I lospitaL tht; motion (seq. 00(>) or defendants Dr. Shah ram I lormozi and Dr. Narcnd ra Singh. the mot ion (seq. 007) or dckndant Dr. Shahram Shamekh, the motion (seq. 008) or ddenc.iant Dr. Ralph 13arbato. the motion (seq. 009) of Dr. Michelle Gebhard and Dr. Robin Macko ff. the motion (seq. 010) or Dr. David Braunstein and Dr. Jeffrey [,icherman. and the motion (scq . 0 11) ol' Dr. (lerry Ru bin an: consolidated for the purposes of this determination: and it is rurther ORDERED that the motion or defendants William Sierra, Pl\. and Good Samaritan I lospita l !'or summary judgment dismissing the complaint against them is granted to the e. tcn t set forth below. and is , otherwise <.knicd: and it is rurther ORDERED that the motion ol" defendants Dr. Shahrnm l lormozi and Dr. urendra Singh for summary judgment dismissing the complaint aga inst them is grnntc<l to the extent set rorth below. and is otherwise denied: and it is further ORDERJ:.,'J) that the motion of dclendant Dr. Shahrnm Shar:nekh fo r summary judgment dismissing the complaint and any cross claims against him is denied: and it is further ORDERED that the unopposed motion or dclcndant Dr. Ralph Barbato for summary judgment dismissing the complaint against him is granted; and it is rurther ORDERED that the motion or defendants Dr. Michele Gebhard and Dr. Robin Mad:o!T is grantee.I to the extent set forth below. and is otherwise tkniec.I; and it is further ORDERED that the unopposed motion or deJ'cndants Dr. David Braunstein anti Dr. Jeffrey Lieberman for sun11nary judgment dism issing the complaint and any cross claims against them is granted: and it is runhcr ORDJ:..'RED that the unopposed motion or tlefCndant Dr. Gerry Rubin for summary judgmrnl dism issi ng the complaint against him is granted. Plaintiff as administratrix: of the estate of Latosh Knight-Scott, comrncm;ed this action to recover damages f(>r personal injuries and wrongful death alkgctlly caused hy defendants· medical malpractice. rhe complai nt alleges that plaintif"Cs decedent was treated in the crncrgcnc.:y department al Ciood Samaritan I lnspital on January I. 2008 and li-clm Jan uary 2, 2008 through January .1. 2008. 13y the amended bi ll or particulars. pl aintiff alleges that dc!Cndants fo iled to timely d iagnose and treat decedent l~)r Sl'ptic shock and pneumonia. causing personal injuries and wrongful death. Plaintiff alkgcs that defendants were negligeut. inter alia, in fai li ng lo order that dcceucnt"s vital signs be checked and '\ery lif"tce11 minulcs: in fai li ng to order input and output charting: in !'ailing to order boluses or recorded L fluids; in failing to transfer decedent lo another hospi tal that had an available bed in the intensive care unit: and in foiling(() rcCer and consult with various spec ialists. Plaintiff further alleges that dctendant Good Samaritan I lospital is vicariously liable for the conduct of the named de lc ndanls and for it s lwspita l stall including Dr. Adriane Collins. an inJ'cctious disease doctor. Lauren Ma ure a11d Brunilda [* 3] Robinson v Good Samaritan I losp. lndt·:-: No. 08-·+:285 l lk.lcsus. nursing assist~mls. Marilyn Nag1nlon and nur,es Co lleen Marte lla. l\in Morte11s1..'n Shrich1.:r. and Renata Flcgar. /\II or lhc dckndants move for summary judgment dismissing the complaint and any cross claims against them . Plaintiff has submitted one sd or opposition papers. which include an cxp1.:rt alfalavit hy I>r. Peter Marshal I. The motions arc num hcrcd from sequence 005 through scqul.!nce 0 I I. and wi 11 be addn:sscd in their consccutive order. lk!Cnda11ts Good Samaritan I lospitul and William Sicrra, J>/\ , move for summary judgment dismissing the rnmplaint on thl.! grounds that William Sit;1Ta did not treat or sce plaintif'l~s decedent at any time, and that the trl.!atmcnt rcn<lcreJ did not J..:part from accepted medical care and was nut a proximate cause or dceedcnr s injuries or Jt.:ath. In support of the motion. de lendanls su bmit copies of tile pleadings, the bill or parti<.:ulars, an affidavit or William Sierra. an expert affidavi t. <.:erlilied hospital n:eords. transcripts or the parties· deposition testimony, and the lnmscript or the deposition testimony or nonparly Belly Knight. dcecdent"s sister. Wi ll iam Sierra, Pi\, avers in his af]idavit that he was not involved in the curt.: and treatmt.:nl of decedent while she was in the emergency department at Oood Samaritan l lospita l on January I. 2008. nor did he treat her on January 2 or January 3, 2008. Sicm1 states that his only involvement with decedent was when he rt.:ccivcd the results of her blood cul lure tests alkr she had passed away. I le slates that received the pr<.:liminary report at 8:38 a.m. on January 3, 2008 and on .January 4. 2008 at 2: 17 p.m. It is un<lispull!d that decedent passed away al 4:21 a.m. on January 3. 2008. Dr. Michelle Gebhard lcstilied that she is board certifit.:d in emt.:rgcncy medicine and has worked al (lm>d Samaritan I lospilal since 2004. She testified that she was working in the emergency dcpartmcnt on January I. 2008 when decedent was brought in by ambulance at 4:35 a.m. She lt.:sli fled thal <.kcec.knl was initially seen hy Nurse Allison Lact.:. and that she suw <lccedcnt al 5:07 a.m . Dr. Cicbhard tt.:stified that ht.:r shift cmkd at 7:00 a.111., at which time Dr. Michael Mendola assumed decedent's care and treatment in the emergency <lcpartmcnt. She lesti lied that decedent complained of abdominal pain. that she pcrformt.:d a physical examination. obtained her medical hisl01y, ordered morphine which was administered intraveno usly, on..lcrcd n cht;st x-rny c.;xaminalion and a CT scan or the ahdomcn. Sht: testi lied that dceedcnr s temperature and pulse wcrc normal, and that her hlood pressure was borckrlim:. hul she had a history or hypertension and was taking medication !'or it Dr. (icbhard lesli tied that she ' 'icwcd the chcst x-ray imi.lge before her shill ended, und thal she <lid not sec any abnormality. She tcsli lkd dccedt:nt ·s hospital chart indicawd that the chest x-ray imagt.:s were rcvic\.\ Cd by Dr. Jcl'frcy Lieberman, that a report or the findings was created by Dr. Lieberman al I 0:42 a.m .. that the abdominal CT scan was conducted between I 0:00 a.m. and I 0:30 a.m., and that Dr. J,icbcrman ·s report was rcviewt.:d by Dr. Mcnd{>la. Dr. Gebhard testified that she was unable to formu late a <.:onclusivc diagnosis hcfo r..: her shift ended. but ht.:r impression included several possible causes for decedent"s abc.lominal pain. including gastritis. gall bladder disease, pnt.:umonia an<l acid reflux. 1 Dr. tv1ichacl Mendola !Csli lied that ht.: v\·as working in the t.:mcrgency department nt Good Samaritan 1 lospital nn January I, 2008 and began his shift at 7:00 a.m. I le tcsliJic.:d that Dr. Clcbhard [* 4] Rohinson v Ciood Sm11arita11 I Josp. Index No. 08--f'.285 l Page 4 introd\l<.:c..:d him tn dcccdc..:nt while -;]11..• was llll a -;tn:tchcr i11 the c..:mcrgc111.:y department I k -;tah.·d 1hat she had a history nr cirrhosis of the liver and substance abuse. and that cocaine and alcohol were r·nunJ in her urine. I le testified that having examined decedent and reviewed the radiology studies. he atlributed her abdominal pain to chronic cirrhosis of the li\'l'r. gullhladder <lisc..:ase. alcohol gastritis and acid n:!lux. I k testifo:d that he prescribed pain medication an<l discharged her from tllL' emergency department at I :-W p.m. Dr. Ml'.ndola testified that he die.I not believe decedent had an inlcdion. so he did nol prescribe antibiotics. l lc testified that when decedent was discharged. her pain level was one out or ten compared to ten out or ten when she..: presented to the emergency department. Dr. Da vid Braunstein. a board ce11ilied diagnostic rndiologi.st, testified that he works at <iood Samarit an I [ospital and was working on January 1, 2008. lk kstificd that his only involvc1rn:11t with decedent was when he reviewed images of the CT scan of' her abdomen . I le tesli lied that the images revcakd two f(.)cal opacities in the right lower lobe of her lung., which indicate abnormal lung tissm: attributable to either pneumoni a or a neoplasm . I le expbined that the CT scan or the ubdomen docs not show the l:ntirc lung segments. Dr. Braunstein Lesli lied that he discovcn..:d a mi ld comprcssio11 or the lung base known as bibasilar aldec!asis. whid1 is caused by either lying down or breathing issues, bu t that it was ··very. very small." I le testified that the images revealed that decedent had severe cirrhosis or the Jiver. and. in his opinion. based on decedent" sage of34, he believed the images ind icated that she had pneumonia, a primary neoplasm. or round utclcctasis. which is a compressed Iung. /\ceording to his notes. he lesii lied that the focal opacities were ··most likely compatible with foca l areas of' pm:umonia as opposed to the neoplasm or the round atelectasi s." Dr. Jeffrey Lieberman testilied thut he is a board certiliec.I radiologist and was working for (iood Samaritan I lo.spi tal on January I . 2008. I Jc tcstilie<l that he reviewed the ultrasound examination performed on decedent's abdomen. and that he prepared a report at 8:33 a.m. The report states that the images revealed an acute inflammation of the gallbladder, acute cholccystitis, possibly related to cirrhosis. Dr. Lieberman testified that he also reviewed n chest x-ray image and conclu<lec.I it was normal. Dr. Shahram ShanKkh tcstilied that he is a board certifi ed internist and was working al (iood Samaritan I losp ital 011 January 2. 2008 as a hospilalist. I le testified that decedent presented to th\.' rn1crgc11cy department of' (iood Samaritan I lospital hy ambulance at 12: 31 p.m. on January 2. 2008. I le tcsli lied that decedent was assigned to him. and thnt he examined her in the cmcrgcrn:y department at 3: 15 p.ni. lie 1cs1ilied that it is his custom and practice to obtain information about the patient from the e1 rn:rgcncy room doctor before mcl·ting with the patient. I le testified to decedent"s medica l history and lo the mcdicalions that shl.! was taking. Dr. Shamekh tl.!stilied that dccedcnrs hlood pressure was I.f8 over 98 when she presented and dropped to 73 ovl.!r 45 when it was recorded al .1 :09 p.111. I k lesti lied that she was in shock when he exam ined her. that her blood pressure was vl.!ry low. that ht! ordered /.osyn. a brnad-spcctrum anl ihiotic. and that he admitted her to the 1ntensivc Carel lnit (IClJ). I le tl'st i lied that l he dcc.:etk111 · s chart indicates thc..:re was no bed avai !able in the ICU. so deccde111 rcrnai ncd in the cmeri;!l'.11CY t!l'.partll\ent. but was treated as an IC'll pn lienl. Dr. Shamekh tcstilicJ that he did 1101 kill)\\. \Vhat typ1.• of in!CcliOll she had: that it COUid have been p11CU1110l1iU. intestinal. '"anything.·' J le tcsti licd that the patient's chart indicated that she had been given N~1 rca11 while she was in the cmcrgcn<.:y [* 5] Rohinson v CooJ Samaritan I losp. Index No. 08-42851 Page 5 department. tlrn1 she was i11 rcna! li1i lure. had respiratory acidosis. c..kcrcasc<l profusion to all of her organs and had to be i11tubawd. Dr. Shamc.:kh testified that he.; did not create any orders regarding the 1nonitoring of<lect:<.knt"s vitals, as !Cl ! ha!> the::ir own protocol. I le testilicc..I that he c.lid not sec.; decc.;Jent again. and that his shirt c.;11<lcd al 7:00 p.m. Dr. Shamc.:kh testified that he ordered consultations \1,,:ith an infectious disease doctor and a hematologist. and the chart indicates that they saw decedent at 5:58 p.m. in the emergency department. I le testilicd that after his shift terminates, a covering physician treats his patients. Dr. Robin Mackofftcstilied that she is hoard certified in ramily medicine and was working in the emergency department at Uoo<l S;.1111uritan I lospita l on January 2. 2008. She testilicd that <.k:cedcnt arri\'cd at the hospital at 12:3 1 run .. and that she.: conducted a physical examination on her at 12:40 p.m. She testified that decedent was awake, kthargic, and obtuncled, that her pupils were pinpointcJ. and that she was in severe respiratory distress. Dr. Mackoff testified that she gave decedent Narcan to determine if she had overdosed, but she needed to be intubated, as she did not respond to the Narcan. She testified that she ordered glucose. lab tests. and Roccphin and Zithromax, which are antibiotics, as her impression was that decedent may have had pneumonia. Dr. Mackoff testificd that she ordered a chest x-ray examination and a blood gas examination, and that the resulis indicated that decedent had severe respiratory acidosis. She then contacted Dr. Shamckh for a consultation. and he admitted decedent to the IC' ll at 3:-n p.m. She testiJicd that a heart monitor and oximetcr were connected to c.lct:cdenl some time betwcrn 12:38 p.111. and :1:09 p.m. Dr. MackolTtestilicd that the emergency department was very busy on January 2. 2008. that then.! were between I 0 and 15 patients being treated in the emergency department. and that she did not record her notes of c.kccdent 's examination until three hours later. She testi fied lurthcr that her orders were not recorded in the computer until after 6:00 p.m. lk Shahram Hormozi testified that he is a board certified cardiologist and was an attending physician at Uoo<l Samaritan I lospital on January 2, 2008. 1lc testified that he wa!-i contacted by Dr. Shamckh for a consultation and that he examined decedent in the emergency department at approximatdy 4:00 p.m. I lc testified decedent was unconscious and in shock. Dr. l lonnozi testi lied that decc<.knl was not sul'lcring from a cardiac rcluted issue. that she was suffering from severe respiratory distress and kidney malfunction. J le testified that her blood pressure was very low al 3:09 p.m., nnd that it was 148/98 at 12 :38 p.m. Dr. Ralph Barbato. a boan.l certified nephrologist an<l internist. testi tied that he was contacted by Dr. Sha111ckh for a consultation n.:gardin!o!. decedent. and that he examined her on .January 2. 2008 at ...., ... approximately 7:30 p.m. I Jc testi ficd that deccc.lent was in septic sh(.)ck, acute rc.;nal failure. and had pneumonia in both lungs and respiratory acidosis. Ile testilie<l that he reviewed the CT scan report concerning decedent's abdomen prepared on January I, 2008 and her hospital chart. I le testified !he chart <;bowed dcccdcnt was gin;n saline lluids. dextrose an<l sodium bicarbom1tc at ]:54 p.m. I le 11..·stified that the chart also indicated she was given steroids and fresh-frozen plasma (FFP). /\ccording. lo Dr. Hnrbato. decedent's kidney li.1ilure was due to hypolcnsion. Dr. Gerry Rubin testified that he is a boar<l certified hemato logist and vvas contactd hy Dr. Shamekh for a hematologic consultation. I le testified that he examined decedent on January 2, 2008 at [* 6] Robinson,. (ion<l Samaritan 1losp. Index No. 08-4:2851 [>agl' 6 appro'>inrntl'I~ 4 :00 p.m. lO th:tl'rmi11e if she wa~ ~uffi:ring from a hlood dison.k:r J...nm\!I as thro111h11tic.: thrombocytopcnic purpura (ITP). and conc.:luc.kd that she was not. I le testified that Jccetlent wus critically ill. hypoxic. that there was blood around her mouth. and that she wns on prcssor medications to raise her bkiod pressure. I le testilicd that the bleeding around her mouth was most likely the rcsult liver failure. I lis summary in the patient chart states that "this is a 34 year o ld black female with a clear nr or history chronic cirrhosis and portal hypertension presents with -what looks like sepsis and de\ doping pneumonia.·· rapid!~ lk Nan:ndra Singh wstilied that be is u board certilicd internist. pulmonolog.ist. and critical care physician. and that lw was contaded by Dr. Shrnnekh on January 2. 2008 for a co11sultation regarding decedent. I le testi lied that he md decedent al approximately I :00 p.m. on Junuar) 2. 2008 in thc cmcrgem:y department at Uood Samaritan I Jospital. and that he believed she was in septic shock. I le testificd that decedent was on a ventilator. that she had been given various antihiotics. and that he ordered Le\ opheJ and Vasopressin, both of" which arc prcssor medications uti I ized lO raise blood pressure. Dr. Singh testified that at 8:00 p.m .. he ordered sodium bicarbonate to rnisl.! decedent's blooJ pn.:ssurc. and that she was connected to a machine that continuously monitored her blood prcssurc. I le testified that patients on pressnr medications ure wnstantly monitored by the nursing staff. Dr. Singh tcsti lied that his Ji fkrc11tial diagnosis indudeJ pn1.:umonia. acute rcspiralOJ') distress S) ndromc (J\ RDS). and TTP. and that he ordered a Fl· P transf'usion and Solu-Mcdrol for inflammation g.iven 1.:ve1-y s1:-. hours. Brunilda lk.lcsus testified that she works for Good Samaritan I lospital as a nursing assistant and \\orks in the emergency department from 7:00 a.m until 3:00 p.m. She testified that the <:mcrgcne) departmcnt is di vidcd into four districts. and that one nursing assistant is assigned to each district. She testifictl that the emergency department typically treats I 0 to 12 patients and that they arc treated in cubicles. Ms. Ik.fcsus testi lied that occasionally an ICU patient remains in the emergency department when there arc no beds available. a11d that she is verbally told about such cases. She lcstilicd that there is usually one nurse assigned to the ICU patient. but other nurses help out too. She testilied that such patients arc d1eckt·d 011 every hour as opposed to <:very four hours. and that she is responsible fi.ir ensuring that they arc c.:11.:an and comfortable and for recording their blood pressure. De.Jesus tcstilied that she recorded decedent's systolic pressure after 3:00 p.rn .. and lhat it was 5(>. but she did not rcwrd her diastolic pn:ssurc. She lcstilicd that she tested decedent's blood sugar al '.2: I 9 p.111 .. and that it \\as normal. lk.lesus testified that she did not record decedent's input and output. as she did not rcccivt.:d illl\ order~ lo r1.:cord it. 1-.riu t\loncnsc11 Shrit.:hcr testified that she is a registered nurse and \Yorks for (iood Samaritan I lospital. She testified that she \\as working on .January 2. 2008. that shc was the triage nursc when deccdcnt arrived by ambulam:e at 11:] I p.m .. and that she assigned nurse Colleen Martella to hc her primary nurse. Colleen Martella testified that shc is a registered nurse and \\US ,.,,·orking in the cmcrgciit:) dcpartmcnt at ()ood Samaritan 1lospital on .lanuar') 1. 1008. She testi lied that sh1..• \\'as assigned t(> dcce<lcm as hl·r primmy nurse. and that she met her at I '.2:38 p.m. in the emergency department. She [* 7] R\lbinson v Good Samaritan I losp. Ind..:.\ No. 08-41851 Page 7 testified that Jecl'dt:nt arrived hy ambulance and was on a stretcher. that she;; was conscious and uncoopcrativt.\ and that she had to help her put a hospital gown on. ursc Martella tcstilicd that sh..: took decedent"s vital signs. She testified decedent had a very low oxygen saturation, so she reported it t\I ()r. Macko IT She ksti lied that. among other things, she placed decedent on oxygen and sat her upright. among. other th ings. to incn;asl..': her O.\ygen saturation. Nurse Martella testified that she took decedent's \'itals at l 2A5 and her oxygen saturation improved signilicantly, rrom '.10 to 88. She tcstifo;d that she did not take decedent's blood pressure until 3:09 p.m .. and that her systol ic pressure was 56. but then; is no diastolic pressure indicatt.:d because it was taken by a Doppler. Nurst: Martella tcstili.ed that decedent's blood pressure was abnormally low, and that she noli ficd Dr. Macko ff. Sht.: testi flt:Ll that decedent was adm itted to the ICU at J :39 p.m .. but that there were no beds ava ilable_ so she stuyed in thl! emergency dcpartmt.:nt with decedent until her shirt ended at 8:30 p.m. She testified that vital signs arc taken every hour for ICU patients, that decedent was given pressor medications and antibiotics. and that dece(knt was bei ng tn..:ated t'or pneumonia. Nurse Martella tcsti lied that decedent was given ()iprivan for sedation at approximately I :43 p.m., and that the hospital chart ind icates ··son restraints were n.:movcd at 4:'.25 p.m .·· She testified that the chart docs not indicate what time the Levophed was administered or what ti1rn: decedent was intubated. She testified further that decedent was givt.:n tht: nonnul amount fl uids on a continuous basis and a Foley catheter was inserted at I :49 p.m .. but she did not record any input or output, as she was not directed to do so by any doctors. Nurse Martella tcstil'it:d thal she contacted Dr. Singh at 5 :58 p.m. to notify him that decedent's oxygen saturation was not improving. and that the respiratory therapist adj usted the ventilator to increase the positive and expiatory pressure (PEE) to 18. She lcsti lied that the chart indicates that at 7 :30 run., urse Renata Flcvor upplicd a Bair I lugger warming blanket to decedent because she was hypothermic. or 11 is ,. .,ell settled that a party movi ng for summary j udgment must make a prima l'acit..: showing or entitlement to judgment as a matter or law, tendering sufficient evi<lencc to eliminate any material issuc fact (A h•arez 11 Prospect Hosp .. 68 NY2J 310. 508 NYS2d 923 ~ 19861: f'riends ofA nimal~' I' A ssociated Fur Mfrs. , -i6 NY2d I 065 , I 067. 416 NYS2d 790 119791). The fai lure or the moving parly to makl! a prima focic showing req ui res the denial of the motion regardless of the sufficiency of' the opposing papers ( Wi11egrad 1 N ew York Univ. Med. Ctr. , 64 NY2d 85 1, 487 NYS2d 31611985"1). The burden then shins 10 the party opposi ng the motion, who must prod uce cvidcntiary proof' in admissib le form sulfo:icnt lo require a triul of the material issues of' l~1ct (Z11ck ermt111 v Ci~)' of New York . ,.i9 NY2d 557, 4'.27 NYS2<l '.'95 I 1980 I). or 1 /\ proJ'cssional health cart: provider nm>' be liable for medical malpractice ir he or she Jepartcd from accepted community standards or practice, and such departure was a proximate cause or a plaintiff's injuries (A hakpa 1 Martin. 132 /\D3d 924. 19 N YS3d 3 03 [2d Dept 20 15 I: Schmitt l' Medford Kidn ey Ctr.. 121 /\D:\d l 088, 996 NYS2d 75 r2d Dept 2014 j). /\professional health care provider who moves for summary judg111cnt dismissing a complaint asserting a cause or act ion in medical ma lpractice must t:stablish. prima fac ic. that he or she did not depart from the applicable standard or care or th~1t such departure was not a proximate cause of plainti rr s injurit:s. To 1.:stahl ish a prim<l facie showing of entitlement to summary judgment. a defendant must establish through medical records and competent cxperl affidavits that he or she did not deviate or depart from accepted medical practicc in his or her treatment of the patient or !hat any departure was not a proximalc cause of'a 1 [* 8] i{obinson v (joo<l Samaritan I losp. Index No. 08-4285 l Page 8 plaiuli Jrs i1~j uric.:'> !Lau v Wan . 'J> f\f)Jd 7(i~. 9..+() YS2d 6()2 I2d Depl 20121: Castro 1• New York Ilea/tit & llo.~ps. Corp._ 7.J, /\D3d I 005, 903 NYS2<l 152 I2d Dcpl 10021). O~r I lospitals arc vicariously liable for the ads ol'thci r employees and may be vicariously liabk l(n the ma lpractice ora physician. nurse, or other health care pro!Cssional that it employs under the doc1rinc ofrespondeat superior (see Hill v..S't Clare's l/o!)p .. 67 NY2d 72. 499 NYS2d 904119861; Bing I' Tl1t111ig. 2 NY2d 656. 163NYS2d3I19571: Seide11 vS011Mei11. 1271\DJd 11 58. 7 NYS3d 565 j2d Dept 20151). Generally. a hospital is not vicariously liable for the malpractice of a physiciun who is not employed by the hospitul. I Jowcvcr. '"an e:-:ception to the gcneral rule exists where a paticnl comes to the cmcrg.ency room seeking treatment li·om the hospital and not from a particular physician or the patient's choosing" (Smolia11 "Port Aut!t. ofN. Y. & N.J.. 128 /\D3d 796, 801. 9 NYS3d 329. 334 1 2d lkp1 20151 ). l lndcr u Lhc.::ory of' upparcnt or ostcnsibk agency. a hospital may be vicariously liabk for the malpractice nr a physician. who is not an employee of the hosp1tal. i r a patient reasonably bel icvcs that the physicians treating him or her were provided by the hospital or acted on bchal r or the hospital (Hil.w lorf v Tsiou/ias , 132 l\D3d 727. 17 NYS3d 655 j2d Dept 2015 J; Loaiza v Lam. I07 /\D3d 951. 968 NYS2d 548 I2d Dept 20 151 ). I kre. the testimony of the parties, the hospital records and the uflirmation of Dr. (ln.~gory Mazarin. establish William Sicrra·s prima focie cnlitlcment lo summary judgment. as he was 1101 involved in lhc treatment and care or decedent. Dr. Mazarin states that he is board certified in c111erg.cnc; medicine and is a rti Iiatcd with several hospitals which he names. l le states that he has rev iewed the pleadings. the bill or particulars. the certified hospital records or decedent, and he specilies each of tht.: trunscripts or deposition testimony that he read. Regarding the liability ,if the hospital basc<l upon the Joctrinc of rcspon<lcat superior JiJr the conduct of the nurses and physicians who treated decedent on January 2. 2008, Dr. Mazarin states that Dr. Adriane Collins, an infectious dist.:asc physician, examined decedent, reviewed the CT scan and appreciated the focal opacity in her right lung. I le states that Dr. Collins ordered Zosyn. an antibiotic that treats many different bacterial inkctions. and Azithromycin. also used to treat various infections, including respiratory infections. Dr. Mazarin avers that Dr. Collins treatment and recommendations wcre limited to her field of infectious disea:-;e. and opines with a reasonable degree or medical certainty that her treatment did not depart from accepted 111edical standards and was 1101 a cause or decedent':-; injuries or death. Dr. Mazarin reviewed the documentation regarJing the fluids decedent received and the amounts given. and opines that she was properly given adcquate fluids anti boluses. Further, lie stales that decisions regarding fluid rcsuscitati,in arc not made by the nursing staff or by infectious disease doctors such as Dr. Collins. I le further opines that it was not within Dr. Co llin' s or lhc nursing starts's duties to order that vitals be taken more frequently. and, in rmy event. it was not warranted. I le states that vital signs arc taken every rour hours in emergency departments and every one hour when a patient is in an intensive c.ire unit. I k stales that the..: nurscs followed the orders ol'the physicians. and that decedent was placed on a cardiac monitor which cont inuously monitored her vital signs, including her respiratory rate. pulse. nml blood pressure. I k opines. with a reasonahk degree or medical certainty. that it was not a departure from accepted medical care lo fail to lake her vitals every Jilleen minutes. and that it was not within the purview or Dr. Collins or the nurses to take her vitals more than once every hour. h1rthcr. hl' [* 9] Robinson v GooJ Samaritan I losp. Index o. 08-42851 Pag1.· 9 stati:s 11la1 it is not \\,ithin lhc.:ir purview to rl.!cord and chart decedent ·s input and output" ithout. and that then: \vere no l>nkrs by her treating physicians lo do so. I le states that decedent was do<.:unH.:nkd lo he in acute renal failure anJ urinary output was not expected. lk Mazarin states that decedent was treated as an ICU patient an<l provi<led \\ith lhl.! same level of' care. tkspitc being situatl.!d in the emergency department. and that ursc Mandia i'i a trained critical <.:arc nurse who stayed by her side. I le stutes that Dr. Collins be<.:ame involved with decedent's c:are artcr she was admitted to the JCll. and that her blood pressure was loo low to transfer her L1) another institution. Dr. Mai'.arin states that lk Co llins ordered a sputum culture. but that it lakes 24 hours for a potcntinl organ ism to grow and additional time to determine the sensitivity lo antibiotics. and that when Dr. Collins saw decedent, blood and urine tests wen.: already being conducted. I le opines that the al kgation that the nurses and doctors failed to timely Lest her blood, urine. and sputum tests is "ithout 1m:ri l. Dr. Mazarin also states that on January I. 2008, decedent was discharged from the hospital by l)r. Mendola. anti that she was provided with discharge instructions. I le slates that the nursing staff has no authority to discharge patients. and thut Dr. Collins did nol treat decedent on January I. 2008. With rcspl.'cl to the allegations that the staff physicians and nursing staff improperly orden.:d a blood transfusion. sll.!rnids. and administered fresh froi'en plasma for coagulopalhy. Dr. Mazarin opines that such medications did not cause any negative eflccts and were properly administered to address ,·arious concerns. Furl her. he avers that the orders were given by decedent's treating physicians and were not given by Dr. Collins or the nursing staff. Dr. Mazarin opines that sodium bicarbonate was not warranted on January l, 2008. and that it was not within Dr. Collin's purview to order sodium bicarbonate, nor did she cancel the first chest x-ruy . I le states that Dr. Singh ordered the x-ray examination on .January 1. 2008 as the critical care pulmonologist who \.vas 1nonitoring her arterial blood gas results. Dr. Mazarin opines, with a rl.!asonabk degree or medical certainty. that the nursing staff and doctors at the J lospital properly treated decedent and wen: not a cause of her injuries or death. I le statc:s that various specialists \\Cre called to examine her, that decedent was critically ill when she prcscntcJ to the emergency room on January 2. 2008. that her prognosis was poor. and that she succumbed to her lllJllrlCS. Jn opposition. plaintiff submits an artirmation by counsel and the anidavits or Dr. Peter Marshall and Carol /\lvin. In his al'lirmation. counsel states he is not opposi ng the motions ror summary j udg11H.:nl hy ddcndants ()r. (11,;hhard, Dr. lhaunste in. Dr. Lieberman. P/\ Sierra. Dr. Barbato. Dr. I lormozi. and Dr. Rubin . /\ccnrdingly. the branch ol'the motion !'or summary judgment dismissing the complaint and any cross daims against William Sierra is granted. and the action is scn:rc<l as against him. Regarding the I lospitar s application for summary judgment. Dr. Peter Marshall submits an artidavit. In his anidavit. Dr. Marshall slates that hc is board certified in pulmonology and cri tical care [* 10] Robinson \ (irn1d Samaritan I losp. lmk:-. • o. 08-428:' I Pagl' I 0 medicine and reµularly trcms patients with pneumonia. ->epsi-;. septic shrn.:k. uculc tT-;piratnry dislrl'<;-> syndrome. cirrhosis and multi-organ dysl"unction syndrome. I le states that on Janu;.11·>- I. 2008. till' Cl scan revealed that decedent had pneumonia. as did her elevated \\ hitc blood count. her upper right quadrant abdominal pain. and her ekvated heart and respiratory rates. Dr. \1urshall opines that Ik Mendola foiled lo rccogni/c thcsl..' signs and ,,·as negligent in foiling to prescribe antibiotics on .htnll<lr) I. ~008. I le opines that patients with cirrhosis ha' ca higher risk or dc,·cloping sep->i-;. and that i rsh1.: had been given antibiotics on January I. :W08. she probably WtH1kl have survived. lk Marshall slates Lhat o n January 2. 2008. u<.:ccdent presented at 12:3 I p.111. by amhularn.:c and that Dr. MackolT, the emergency room physician. did not record her notes of the physic~d examination she condw.:Led on dcc1.:denl until 3:34 p.m. I le opines that it is a departure rnm1 accepted medical pra<.:licc to foil to record the notes or a patient's examination contemporaneously with the examination. I k stale!-> that c.k:cedcnl·s oxygen saturation was 29 per cent at 12:58 p.111 .. which is 1.:xccplionally km. that she \\as criticall) ill with signilicanl metabolic acidosis and respiratory acidosis. and that Dr. Mac"ofT shoulJ hm c ordcrl'J sodium bicarbonate at that time rather than \\.ailing until 3:-D p.m. h1nher. h<.: opines that it was a dcp:ulurc from ac.:cepled medical standards lo tail to adjust the ventilator to address the respiratory m:idosis. and that these departun:s decreased decedent's chance or survival. Ik Marshall opines that l)r. Macko If dcpartcc.J from accepted medical practi ct.: hy failing to diagnose decedent with severe sepsis and early stages or septic shock. I le opines that. g i\'Cn the imaging studies. decedent's elevated whil1.: blood cell count. severe respiratory distress, her altered mental status. decreas<.:d platelet count. internal hlceding. manifoslt.!d hy her bloody spit up and stool. and her ahnormal blood gas result. it \\US a departure from proper medical practice to fail to diagnosl' sepsis. I le opines. '' ith a reasonable degree: or medical certainly. that the failure to initiate a septit.: shock protocol and Lake decedent ·s blood pr<.:ssure b1.:twe<.:n 12:38 p.m. and 3:09 p.m. \\as a departure from accepted medical practice. I le L'Xplains that sepsis can be u lil"c threatening infct.:tion, and that ii" it is not treated agµressivcly. it can progr1.:ss to septic shock; blood pressure drops significantly and vital organs do nnt n..:ceive adequate blood llow placing Lhe patient at a risk of death. Dr. Marshall nol<.:s that Dr. Mackoll ordered two antibiotics\\ hich were li1m:ly dcliv<.:red aml appropriat1.:. lk Marshall explains the importance or initiating lluid resuscitation in septic patients. and that the -.tarn.lard of care is lo commcnc<.: lluid resuscitation with a fluid ho Ius to increase hlood preSSlll"l'. I k -.wtes that the patient mu-;t h<.: diallenged with a large \ olume of fluid in a shorl period of" time, and Lhal a bolus tonsisting ol" 1 to~ liters should have been administered to decedent O\'CI" a period of:lO minutes prim lo or al th<.: same lim e as the antibiotics were admi nistered. I krc, hcme\'cr, decedent was only y.iv1..·11 mainlcnanc<.: lluids. and not the 11cccssary fluid diallcnge. Dr. Marshall opines that Dr. Sing.h, Dr. Macko ff aml J)r. Shamekh departed from generally accepted standards or medical pra<.:ticc by l~1ili ng to orc.kr the bolus of lluid when c.k:ccdcnl was under their care. I k stales that Dr. Singli"s order to administer the bolus or lluids al 8:00 p.111. was ton late. as d<.:ccdcnt"s blood pressure had hcen S(l low for so long that h1..·r organs were already <lamagcd. and it would not ha\'C made a <lil'fcrencc. Dr. Marshal I further c:-. plains the appropriate ventilator settings for patients sufli:ri ng from acute respirator) distres~ S) ndrnmc and explains tidal volume an<l how it is calculated. I le npincs that Dr. Si ugh sckt:tcd a setting for tidal volume that was inappropriate for decedent ·s body weight and heig.ht [* 11] Robinson v ( io1>d Samaritan I losp. Jmkx No. 08-.+2851 Page.: 11 or and 1h;1t 1he v...:nt <i1..' 1l ing l\r ')()()cc·" k ll below thl' l_!cnerally accepted standard can.: and decreased dccetknrs cham:c or survival. Further. he opines that Dr. Singh did not adjust the vent settings frequently cl1t)Ugh lo address tkccdcnt"s acidosis: there was an artl':rial hlond gas (J\HCi} test at 12 :58 ru n., :1 :28 p.m. and 7:41 p.111. I le (lpincs that the 12:58 Al3Ci test result shou ld have bcc11 reported immediately by the nurse to a physician. and that a nurse ' s note crcate<l at I :0 I p.111., but not reported until 2:06 p.m .. indicatc<l c.kcec.knt was spiliing up pink -colored sputum. I le \>pines that as soon as decedent was put on the ventilator at I :2 I p.m., good and acct.:pted nursing practice n.:quirt.: taking and documenting vital signs every 15 to]() minutes. as decedent was criticall y ill. Dr. Marshall opines that Nurse Martella departed from accepted standards or nursing practice hy foiling to record decedent 's vital signs between 12:38 p.m. and 3:09 p.m . I le notes that then~ is no indication in the hospital chart that ursc Martdla spent any lime with dc.:ccdcnt between I :0 I p.m. and 4:25 p.m., except for when she administcn:d Diprivan at'.?.: I 3 p.m. Further. he opines that it was a departure from accepted nursing practice tn foil to document the times that the medi cations were administered as ordered hy the physicians. Dr. M;irshall opirn.:s that it is a departure from accepted nursing practice to J'ail to docu1m:nt thnt she titrated the Lcvophcd. and that it is the primary nursc·s duty to conduct monitor and record titration. I le opines that it is the primary nurse's duty to record and docu111ent lluid input and output, and hut for the li mited output note. Nurse Martella departed from accepted nursing practice. Dr. Marshall opines that Nurse Martella departed from accepted nursing practice by failing. to record the time that the central line and arterial line were placed. I le opines that when vasoprcssors such as l.1.:vophed. \'asopressin. and epi nephrine arc required. blood pressure monitoring and heart rate should be monitored every l 5 mi nutcs. Marshall opines that vasopressors should not be starkd without a 11uid chalknge, and that the hospi tal records dn not indicate what time the Lcvophcd was administcn:d. nor was it documented i r l ~pincphrinc or Vasoprcssin was administered, although ordered by Dr. Singh. I le opines that such failure is a departure from acceptable standards or medical practice-. Dr. Marshall opines that the choice of the vasopressors was appropriate, but that when given v.1ithout a fluid challenge, it is a dcpmturc frolll generally accepted standards of' medical practice. According to Dr. Marshall, Dr. Macko ff Dr. Singh. and Dr. Shamckh departed f"rom such standard and that such depart urc decrcase<l decedent" s chance or survival. [)r. In addi ti on. Dr. Marshall opines. with a reasonable degree of medical certainty, th<tl dccedcnt"s vital signs shou ld lwvc been recorded c\'cry 15 to 30 minutes and that this should have been ordered by Dr. Mackolf Dr. ~ham ckh. and Dr. Singh. Further, he opines that Dr. Singh and Dr. SIJa111ckh should have monitored decedent's blood sugar more frcqw.:ntly, as hypergl ycemia has adverse cl'li.;cts on v il~11 o r~ans in septic patients. and that the failure to monitor her blood hourly prevented them lrn111 diagnosing and treating hyperglycemia. which he hdieves she had based on her documented glucose levels. Dr. Mmslrnll opirn:s. with a reasonable degn:c nr medical certainty. that i I' decedent recei ved thl' apprnpria!e standard nr can.~, she would have had a I 0 to I2 percent chance of sllrvi,·al whtn she presented tP the emergency department on fanuary 2. .2008. and that her reported use or alcohol and cm:ainc were not substantial fach)rs in causing her death. [* 12] Rohinson v (rood Samaritan I lnsp. lndl.!x . o. 08-..+285 J Page 12 The afliduvit or Pr. Marshall raises triablt: issues or fact regarding the I lospilal·;.; liability J()r the l.'.omluct or its nursi ng stall. ··summ.ary judgment is not appropriate in a med ical malpractice actio n where the parties adduce con!licting medical expert opinions·· (Feinberg v Feit, 23 J\ D3d 517. 519. 80(> NYS2d (l 6 I ['.2d Dept 2005 J). I krc. the conllicling affi rmati ons or Dr. Marshall and Dr. Mazarin raise credibility issues properly ddermincd hy a trier of fact (Leavy v Merriam. 133 Al)Jd 636. 20 NYSJd l 17 l2<l Dcpt 20151: K1111ic v Jivotovski. l?. l AD3d 1054. 995 NYS2d 587 1 Dept 2014 1 Loaiza v 2<l : /,am, 107 !\D3d 951, 968 NYS2d 54812d lkpt 20131). IIowcver. the anidavit does not address the conduct or Dr, Adriane Collins. the infectious disease doctor. Therefore. summary j ud gment dismissing. any c laims or vicarious liability for the conduct of Dr. Collins is granted. hut the claims against the I lospital imposing vicarious liability for the conduc.:t or the nursing staff arc denied. Accordi ngly. the applicati nn of Good Samaritan I lospital for summary judgment in its favor is denied. The motion of Dr. I Iorrnozi and Dr. Singh for summary judgment dismissing the complaint against them is granted with respect to Dr. I lormnzi an<l denied as to Dr. Singh. Plaintiff has staled that she is not opposing the motion or Dr. Hormoz i. In support of Dr. Singh 's motion, an artirmation by Dr. Malcom Phillips. a board certified internist and cardiologist. is submitted. Jn his aninnation, Dr. Phi ll ips opines. with a reasonable degree of medical certainty, that Dr. Singh ' s treatment or decedent did not depart from accepted medical stundards and was not the cause of her injuries or death . Dr. Phillips stales that decedent was ··timely an<l properly diagnosed with septi c shock shortly alter admi ssion to the I Iospita l l) ll January 2, 2008."' I Iowcve r, this statement is not supported hy the deposit ion testimony or the medical records. Notwi th standing.. Or. Phillips opines that when decedent presented to the I lospital on January 2, 2008, ··her conditi on was incompatible with life:· that she was in renal foi lure. liver failure, respiratory failure. and ··no mattl.!r what the care provided, the patient would haw t.:xpi rcd .'. I le states that decedent"s J\.lbuim level was .6, which is the lowest level he has sel.!n in his JG years or treating critically ill patients, and that this critically low level hampers the abi lity to improve bl ood pn:ssure by fluid n.:suscitati on. I le opines that Dr. Singh properly ordered vasoprcssors and did not deviate from acceptable standards of can.! by administering the fluids at 8:00 p.rn. rather than initially. h1rtber, he opi nes that the attempts at lluid n.:suscitation only worsened her oxyge nization. In summary. Dr. Phillips opi ncs that there was no way to treat the condition decedent was in, and that any action or inaction taken by I)r. Singh wo uld have been unsuccessful. In opposition. the artidavit of Dr. Marshall refutes many of the opinions by Dr. Phillips. Dr. Marshall slatl!S that the /\I bum in kvcl or .6 \.vas from blood drawn at I 0:24 p. m .. ten hours alkr decedent had been in septic shock . h irther. he states that there is nothing in the decedent's ehurt to indicate that there was an isst1c with her J\lbuim kvel or that she had cucma. I le opines that the ;.;tandard or care is to adminiskr the boluses or 11uid as soon as shock is rccogni1,cd and to nd ministcr J\ lbui m. J le opinc.s that wi thout the Jl uid challenge. the cham;c or increasing the paticnrs blood pn.:ssur<.: is decreased. which. in turn. decreases the patient" s chance or survival. Dr. Marshall further refutes Dr. Phill ip"s opi ni on regarding Dr. Singh's selection o f the tidal vo lume and vent sl'lt ings. as discussed above in the determi nation or the 1lospitnl's motion. It is evident that the conflicting expert alfo.lavits preclude the award oCs ummary judgment in fovor nl' Dr. Singh, and his motion is. thus, denied. [* 13] Robinson v (iood Samaritan I losp. Index Nt). 08--t285 I Page 13 I )r. ~huhram ~hamckh mows fo r su1T1mary judgrnem dismissing the complaint and ally cross claims against him, and he submits the cxpcrt affirmation of Dr. Recd Phillips. a board cc.:rtilicd internist. I lowever, this aflirmation is conclusory as it is based on focts not in evic.kncc. and this is insunicicnt to satisfy Dr. Shamckh's burden. ln his affidavit. Dr. Phillips states that dcccc.lcnt was timely diagnosed with pneumonia and septic shock. J lowcvcr, Dr. Shamekh 's own deposition testimony indicates that he was uncertain of dc.:ccdent" s dingnosis. Dr. Phillips further states tlrnt Dr. Shamckh ordcred and consulted with various specialists. /\gain. Dr. Shamekh did not tcstif'y that he spok...: to any of the consultants art er they examined decedent. Rather. he tcsti Jil:d hc.: did not sec decedent alkr 3: 15 p.m .. and the record n:vc:als that the spec ialists saw decedent at approximutcly 6:00 p.m. Dr. Sham1.·kh teslilicd that he was the hospitalist assigned to decedent. that he was his patient, and that his shill ended al 7:00 p.m. Neithe r the testimony or Dr. Shamcl.J1 nor the opinion of Dr. Phi llips explain the standard of care and responsibility or a hospital isl to their patient. and if it is acceptable me<lical practice for a hospitalist to cease treatment or their patient ft)1· four hours prior to the com pletion of"thcir shill. I laving foiled to establish the applicablc standard of care and competent proof that Dr. Shamekh did not depart !him such standard. he foiled to establish. prima facie. his entitlement to summary judgment (Tomeo v Beccia. 127 /\D3d 1071. 7 NYS3d 472 12d Dc.:pt 20151 : Gefji1er vNorth Shore Univ. Hosp.. 57 /\D~d 819. 871NYS2d617 l2d Dept 2008 1 J\ccording.ly. the motion is denied. ). Thc motion or Dr. Barbato for summary judgment dismissing the complaint as against hirn is granted. as Dr. Burba to has established. prima facie. that he is a nephrologist who was one of many specialists who were contacted to examine decedent. and he <lid not breach a duty or care owed to her. Physicians owe a general duty of care to their patients, but that duty is typically Iimited to those medical runctions undc11akcn by the physician (Dmmelly v Parikh, 150 AD3<l 820. 55 NYSJd 274 12d Dept 2017 j ). It is for the court to determine whether the physician owes such duty (Bums "(,'oya/. 145 /\D~d 95?.. 44 NYSJd 180 12d Dept 20161). It is undisputed that Dr. Burbato examined decedent and that he opined that she was in septic shock, had pneumonia, and was in acute renal failure. I !is duly or care as a consulting ncphrologist did not extend to !he departures alleged by plaintiff. /\s plaintifrs counsel states that he dt>cs not oppose the motion. Dr. Barbato · s motion for summary judgment is granted and thc.: action is dismissec.l as against him. The motion or Dr. Michelle Gebhard and Dr. Robin Mackoff ror surnmarv J· udf.!.ment dismissmg ~ .J '-' ~ ihc complaint against them is grunted to the extent that the branch or the motion for summary j udgmcnt dismissing the complaint as against Dr. Michelle Gebhard is granted. Plainti rr s counsel has stated in his anirmation that he docs not opposc.: such motion. and l)r. Gebhard established her prima (~Kie case by the uni rmation or Dr. Mazarin who opines. with a reasonable degree of medical certainty. thal Dr. (icbh;infs ln:atn1cnt did not depart from ace...:pkd emergency room practice and was not a cause or decedent's injuries or death. In his al1irmation. Dr. Mazarin opines that on January I, 2008, Dr. (jehhard appropriately reviewed decedent's medical history and appropriately ordered a chest x-ray c.:xamination and other diagnostic tests, and that she transferred dcccdcnrs care to another emergency room physician, Dr. Mendola, when her shi rt was completed. He opines that it would have been a departure from accepted medical practice to diagnose dccedent in such a short time with no test rcsulls available. Dr. Mtv,nrin opines, with a reasonable degree of medical certainty. that Dr. (ichhard·s [* 14] RPhinso11 v (h1od Srn11arita11 I losp. lmkx No. 08-4:285 I Page 14 trca11rn:nt and c:m: of dcci:dcn1 did not depart from acceptable emergency room practice. and \Vas nnl u cause or her injuries or tbllh. J\ccordingly, the complaint is dismi ~scd as against Dr. (jcbhard. !urning to Dr. Rob in Macko!I \.vJ10 treated decedent on January 2. 2008 in the em<..:rgcncy JcpartmL'nt or the I lospital. Dr. Ma1.min. opines with a reasonable degree medical certainty. that when I )r. Madu ff ln.:akd dcccdcnt at 12:40 p.m .. her pupils were pin pointed. and she was unabl<.: to obtain her medical history. I le st<1tcs that Dr. Macko IT appropriately administered Narcan lO rule out an overdose anJ the ··patient"s sepsis was immediately n:ct>gni1.eu by Dr. Mackorr:· as she prescribed antibiotics. Dr. MackolTs own testimony, however, indicates that she thought dcccdcnl had prn:umonia and was in respiratory acidosis. Thus. Dr. Mazarin's opinion is unsupported by the record and insurlicient to establish a prima focie case in Dr. Mackotrs favor. J\ccordingly. the branch or the motion fo r summary judgment dismissing the action against Dr. Mm.:koff is denied. or The unopposed motion of defrndants Dr. Braunstein and Dr. Lieberman, supported by the expert artidavit t>I" Dr . .lames Naidich. is granted. Dr. Naidich, a board certified radiologist, opines, with a reasonable degree or medical ccrtai111y. thal Dr. Braunstein and Dr. l ,ichcrman properly interpreted the radiological reports and images and \-Vere not a cause deccdent·s injuries or dcalh. or Finally. the motion or dckndant Dr. Gerry Rubin ror summary judgment dismissing the complaint and any cross claims against him is granted. as plaintiff docs not oppose the motion and Dr. Rubin htts established. prima focic. through her testimony and the expert affidavit or Dr. Philip Recd. that her treatment did not depart from accepted medical practice. and was not a cause of decedent's injuries or death. J\ccording to the evidence submi tted. Dr. Rubin was called in for a hematological consulla!ion for !he limited purpose of determining whether dcccdenl was suffering from thrombotic thrnmbo<.:ylopcnic purpurn and concluded that she was nol. ,~ t I ,, I ! I r/ ( I' ry<\ ~ I1 ·' 'f :ti,, I I f ' ! \ •'l'i ~·/,, · I " I< nre'JV1/\-s~i\v1M_ .f~.c. l)atcd: FINAL DISPOSITION To: · ' ){ '. /. X IVON!·:, DEVIN! ·: & JENSEN, I.LP /\ttorney for Defendant Barbato .2001 Marcus !\venue. Suite NIOO I ,ake Success, New York 1 I 042 Kl·:Ll ,Y, RODI : & KELLY. LLP J\ttorney Dc!Cndants (lt.:bhard and MackolT .:no Old Country Road Mineol:i. New York I 150 I ror 111 \ / .· JL,ii NON-FINAL DISPOSITION - [* 15] Robinson v Good Samaritan I losp. Index No. 08-42851 Page 15 13/\RTI.J ·:rr. McDONOlJGJ 1 & MON/\GJ lAN. LLP 1\ ttorm:y !'or Dekndants Ciood Samaritan I losp. and Sierra 320 C'arleton A ,·cnue Islip. New York 11722 KRAL CLERKIN, REDMOND. RYAN. PERRY & V /\N lffTEN, I.LP /\ttorncy for Dcl'endant Mendola 538 Broad I lollow Road. Suite 200 Melville. New York 11747 C l IESNl: Y & NIC I IOLAS /\ttorncy !()r l)cfCndanl Shamckh 485 Underhi ll Awnue Syossct. New York 11791

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