Belmonte v North Shore-Long Is. Jewish Health Sys., Inc.

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Belmonte v North Shore-Long Is. Jewish Health Sys., Inc. 2018 NY Slip Op 33468(U) December 18, 2018 Supreme Court, Richmond County Docket Number: 150180/2015 Judge: Thomas P. Aliotta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 SUPREME COURT OF THE STATE OF NEW YORK COLINTY OF RICHMOND: PART C-2 -----------------x JOHN BELMONTE AND STACY BELMONTE, AS PARENTS AND NATURAL GUARDIANS OF BRANDON BELMONTE, AND JOHN BELMONTE DECISION & ORDER AND STACY BELMONTE, INDIVIDUALLY, -against- Index Plaintiffs, No.: NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC., STATEN ISLAND LINIVERSITY HOSPITAL, EMERGENCY MEDICINE SERVICES OF STATEN ISLAND, P.C., JAMES KENNY, M.D., SIU-PUN CHAN, M.D., YASIR EL-SHERIF. M.D.. NWANNEKA OKOLO, M.D. AND SABRINA DESTEFANO. D.O.. :_::lili: 150180/2015 Motion Seq.: 002 003 004 .....x Recitation, as required by CPLR 2219(a) of the following papers numbered were fully submitted on the 5th day of December 2018. Papers Notice of Motion, Affirmation, Expert Affirmation together with Exhibits by Defendant, YASIR EL-SHERIF, M.D. (MS_002). Plaintiff s Attorneys' Affidavit in Opposition to EL-SHERIF's motion for summary judgment (MS_002) Numbered ..............,.....1,2 ..............3 EL-SHERIF's Reply Affirmation (MS Notice of Motion, Affirmation, together with Exhibits by Defendants, NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC., STATEN ISLAND TINIVERSITY HOSPITAL, EMERGENCY MEDICINE SERVICES OF STATEN ISLAND, P.C., JAMES KENNY, M.D., Sru-PLiN CHAN, M.D., AND SABRINA DESTEFANO, D.O. (MS_003) Belmonte v, City, et ol. lndex No.: 750180/2075 Page 7 of 76 1 of 16 ...............5.6 [*FILED: 2] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 Plaintiff s Attorney's Affidavit in Opposition to MS_003, together with Expert Affidavit and Exhibits.............. Defendants' Affirmation in Reply ....'..'.......8 Notice of Motion, Affirmation, together with Exhibits by Defendant, NWANNEKA OKOLO, M.D. (MS-004) Plaintiff s Attorneys' Affidavit in Opposition to OKOLO's motion for summary judgment (MS-004) OKOLO's Affirmation in Reply ........................7 (MS-004) .............9, 10 ..........'.'.'.'.11 ....'.'.....'.'.12 Upon the foregoing papers, the motion for summary judgment by defendant YASIR EL- SHERIF, is denied in part and granted in part (MS_002); the motion by defendants, NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, [NC., STATEN ISLAND UNIVERSITY HOSPITAL, EMERGENCY MEDICINE SERVICES OF STATEN ISLAND, P.C., JAMES KENNY, M.D., Sru-PUN CHAN, M.D., AND SABRINA DESTEFANO, D.O. (hereinafter'NS-LIU defendants") is granted (MS_003); and the motion by defendant, NWANNEKA OKOLO, M.D., is granted (MS-004), as follows:1 On the morning of January 13,2}l4,Brandon Belmonte did not feel well when he woke up at approximately 6:30 A.M. (88,22:23-25,23:1-q.2 He described his condition as "pale and sweaty" (BB, 23:1 1 : 16) and his sheets were "wet" (BB, 24:16-18). After going to the bathroom, Brandon spoke to his mother, Stacy Belmonte, in the living room (BB, 25:22-15,26:l-19,27:2- 1 It is noted that the City of New York and Fire Department of the City of New York moved for summary judgment (MS_001). However, this action was discontinued by plaintiff after the service of the motion and granted without opposition as to all defendants by a separate short form order on December 5' 2018. The parenthesis refers to page and line numbers of Brandon Belmonte's deposition transcript annexed to the City's motion for summary judgment as Exhibit "I". 2 Belmonte v. City, et al. Index No.: 750180/2015 Page 2 ol 76 2 of 16 [*FILED: 3] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 8;.3 His mother gave him ice for his forehead but does not remember if she took his temperature (88,27:5-24).4 Brandon stayed home from school with his father, John Belmonte and his mom left for work (BB, 28:I2-I9).s Brandon does not remember seeing his father from the time he woke up until his mother left for work (BB, 29:14-16,30:19-22).6 Brandon went back to sleep and awoke again at approximately (BB, 31 1 1:30 A.M. or 12:00 P.M. :15-17). He remembers walking to the refrigerator to get food, but not whether he was sweating or if the sheets were wet (BB, 33:1-13).7 He walked back to his bedroom with only a sandwich and then returned to the kitchen for a water bottle (88,34:2-17). Upon retuming to the kitchen, Brandon lost his balance and fell to the floor (BB, 34:21-25,35:1-6). It was not until his father came upstairs [from the basement] that Brandon tried, but could not get up from the kitchen floor (BB, 39:2-7,22-24,40:3-5). On that day, Brandon weighed approximately 220 pounds at 5'11" tall (BB, 39:13-14). Brandon testified that his father helped him up, but that he does not specifically remember this happening (BB, 40:25,41:1-3). The last memories Brandon has of that day are an inability to sit up straight because he kept falling over and then leaving for "southside Hospital in Staten Island" (BB, 41 :8- 1 6, 43:20-23 , 44:16-17). Brandon has no further memory of the events of January 13,2014 (88,46:21-25,pp.47-48). Stacy Belmonte testified that other than appearing pale and sweaty, she did not notice anything else unusual about Brandon that morning (SB, 25:15-25,26 1). Stacy Belmonte's deposition is annexed to the City's motion for summary judgment as Exhibit "J". 3 a Stacy Belmonte testiflred that she placed a wet wash cloth on his forehead (SB, 26:17-21)' s Stacy Belmonte left for work at approximately 7:30 A.M' (58,27:22'23), John Belmonte testified that he woke-up at approximately 9:30 A.M. or 10:00 A.M. that morning (JB, l0:l l-14). Mr. Belmonte's deposition transcript is annexed to the City's motion for summary judgment as Exhibit "K". 6 7 The kitchen is approximately 20 to 25 feet from Brandon's bedroom (JB, 13:1-4, 22:17-20). Belmonte v. City, et al, tndex No.: 150180/2075 Poge 3 of 76 3 of 16 [*FILED: 4] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 Mr.BelmontetestifiedthathiswifelefthimanoteonthemorningofJanuary13'2014 not feel well, and that Mr' Belmonte that Brandon stayed home from school because he did 10:45 A'M. to 11:00 should check onhim (JB, 11:13-25). At approximately A'M'' without noticing anything Mr. Belmonte observed Brandon sleeping under the bed covers, to the basement (JB, unusual about his appearance or breathing, and then proceeded l2:l-4' to the kitchen when he 12:8-25,14:10-17). Later,he heard Brandon walking from his bedroom 11:20 heard a "big crash" accompanied by a "big thud" at approximately A'M' or 11:30 A'M' no fesponse' fan upstairs to (JB, p.16). Mr. Belmonte yelled to Brandon and having received was laying on his stomach and find Brandon laying on the kitchen floor (JB, 17:2-8). Brandon turning to his side trying to get up (JB, 24:12-22)' could not get the words out Mr. Belmonte observed that Brandon was trying to speak but but Brandon could not (JB, 25:16-19). Mr. Belmonte was asking Brandon what was wrong, and could only shake his head in respond and was "looking at me smiling, like, kind of weird" response to questions (JB, 27:r-9). Mr. Belmonte testified that Brandon felt like "dead weight" Brianna (JP.,27:9-18)' Brandon while trying to help him up with assistance from his daughter, time Mr. Belmonte tried to position could not stand or sit up straight and kept falling over each o'prop him up" on the couch (J8,27:19-24)' }dt' Belmonte called Mrs' Belmonte at his legs or condition that morning (JB' 28:9-25)' approximately 11:30 A.M. to 12:00 P.M. about Brandon's no answer, Mr' Belmonte called an They agreed to call Brandon's pediatrician, but receiving ambulance arrived some time between ambulance (J8,28:22.25,29:|.5)' He believes that the 12:15 P.M. to arrive' Brianna to 12:30 P.M. (JB, T:Ia-17). While waiting for the ambulance face was "dtoopy on one side"; and he was trying to hold Brandon in an upright position; his what hurt (JB' 34:1-16)' Mr' Belmonte only pointed to his head when Mr. Belmonte asked him Belmonte v. CitY, et al. tndex No.: 150180/2075 Page 4 of 76 4 of 16 [*FILED: 5] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 there was "no movement on one side' described Brandon's facial appealance as looking as if It smile or laugh or look at you' The was. like, dead. Like the one side he'd have movement, he'd one eye would eye wouldn't move. The other eye would move, the blink' the other eye wouldn't and accompanied her son in the blink" (J8,34:23-25,35:l-2). Mrs. Belmonte arrived home (JB, 4l:3-5,45:8-20)' To the best of his ambulance while Mr. Belmonte followed behind them to the medical staff at the hospital knowledge, Mrs. Bermonte provided all necessary information (p.s7-s8). responsive while en route to the According to Mrs. Belmonte, Brandon was awake and hospitalbutwasgoing"inandout"ofsleep,hisleftarrnseemedweakandtheleftsideofhis face was drooping (SB, 38:1-1 that 7,39:I-16). The ambulance driver advised Mrs' Belmonte Richmond University Medical Center or the she had a choice of bringing Brandon either to its North site was on "diversion" (SB' South Site fstaten Island university Hospitar] because facility (SB, 41:9-10). Mrs' Belmonte 41:3-10). She chose the South Site as she worked at this was full and did not have room for new patients understood "diversion" to mean that the hospital site was not an option (SB' 49:20-25' (SB, 42:8-10) and the driver also informed her the North 50:1-2). Emergency Medical Technicians who Joseph Figueroa and Salvatore Namio were the AccordingtoMr'Figueroa'acall respondedtoBrandon'shome (JF,6:21-23,7:6-8,11:10-16)'s was receiv ed at 12:44 [P.M.], dispatched at l2:44:I2 and the ambulance was in loute at 12:44:38 with Brandon occurred at (JF, 15:1 8-25,16:l-25). The ambulance arrived at 13:00, first contact arrived at13:32:04 (JF, 17:1-17' 18:8-10)' 13:00:56, departed for the hospital at 13:19:08 and |inenumbersofJamesFigueroa,sdepositiontranScriptannexedtotheCity,s "O"' judgment Exhibit as motion for summary Belmonte v. CitY, et ol. tndex No.: 750780/2075 Page 5 of 76 5 of 16 [*FILED: 6] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 (JF' Glasgow coma Scale and for medications Figueroa and Namio assessed Brandon on the weakness or general malaise for 2l:9:20). His chief complaints were dizziness, and approximately five hours (JF, 28 :4- I 2, 29 :3 -13)' in the Emergency Room of Staten Dr. James Kenny was Brandon's attending physician Upon admission' Brandon was Island University Hospital's south site (JK, 10:15-19).e (JK, 1 l:12-24). A stroke code was nonverbal and unable to communicate his symptoms (JK, 23:10- 12,24:6-9)' The stroke code ordered activated for Brandon at 13:53 [1:53 P.M.] an immediate neurology consultation' and laboratory tests, a chest x-ray, an EKG, a CAT scan, was for IV access (JK,26:3-15)' The stroke code the insertion of an intravenous into the patient (JK' Dr' Kenny's physical examination of Brandon activated based upon the history obtained and 26:22-25.27:l-4,34:3-33).Thephysicalexaminationrevealedastrokescalebaselineofll' Dr. Kenny's examination was consistent with a moderate stroke (JK,28:25,pp.29-30). Brandon upon arrival and advised prompted by the physician's assistant who examined as he was lethargic, in moderate distress' Dr. Kenny that he should quickly examine Brandon paralysis (JK, pp'31-34)' poorly responsive, confused and exhibited left side neurologist, by telephone at 2:15 P'M' Dr. Kenny spoke with Dr. Yasir El-Sherii the regardingtheCTScanresultsafterspeakingwiththeradiologist(JK,39:7-13,40:5-12).Upon Dr' Kenny that history (YE, pp'18-19),10 Dr' El-Sherif advised learning Brandon's medical it to drug's data did not support administering Brandon was not a candidate for tPA,ll as the s of Dr. James Kenny's deposition transcrlF The parenthesis refers to page and line numbers motion for summary judgment as Exhibit "K"' 10 transcript annexed to the page number of Dr. yasir El-sherif's deposition The parenthesis refers to the line and "S"' City's motion for summary judgment as Exhibit 11 drug (48:5-7)' Tissue Plasminogen Activator, a "clot busting" Belmonte v. CitY, et ol, lndex No.: 150780/2075 Poge 6 of 76 6 of 16 [*FILED: 7] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 Dr. Elpediatric patients and the onset of his symptoms was not entirely clear (JK, 41:10-19).12 Sherif testified he was advised as follows, There was a young gentleman, 16 years of age, who arrived at the hospital, last appeared to not be moving one side of the body. I then asked about the time known well. We had adiicussion. The family had said that he woke up feeling go back to not well, around, seven in the morning. The mother had told him to not bed and then, around, 11:30 oI so, the patient was found, by the father, moving on. tid. of the body. So, after that discussion, he said he was going to (19:4-19). send him for a CAT scan and we would discuss after the CAT scan not The medical history provided by Dr. Kenny was "that he woke up no normal' feeling normal at seven, and was asked to be kept out of school' and went back to floor" bed, and then the next interaction was when his father found him on the (YE,44:8-17). person under 18 According to Dr. El-Sherif, there is no standard of care for treating a years old with tPA (Y8,22:14-18). He also advised Dr. Kenny that he would call back after to Brandon as he had speaking with his colleagues as to the best course of care to administer suffered a stroke (JK,47:6-15). The cr scan was negative for intracranial bleeding, indicative juncture, the course of treatment of a non-hemorrhagic stroke (JK, 48: 15-25, 49:l-2). At this was to be decided by the neurologist, not Dr. Kenny (JK, 49:3-9)'t' Dt' El-Sherif called back north site for a stat and advised that Brandon needed to be transferred to the hospital's MRI, conversation, MRA and MRV of the brain (JK, 49:10-25,50:1-5, 52:2-18).ra Based upon this and Brandon departed Dr. Kenny placed a transport request at approximately 15:15 [3: 15 P'M'] Dr' Kenny also by ambulance fbr the north site at 15:47 [3:a7 P'M.] (JK, 52:1-18, 59:15-19)' Brandon's symptoms started at 12:30 P'M' The physician,s assistant, Mr. Flynn, noted at !4:o212:02 P.M.l that from John and Stacy Belmonte history that day without prior symptoms of a stroke. However, Dr' Kenny's morning ' (65:L7-25' 66:1-25)' revealed that Brandon was not well from the night before or early that 12 13 by a neurologist (JK, 47t22-24' 49:3-9' Dr. Kenny said that he could only administer TPA to a patient if authorized 98:2!-25,99:1-5). 1a Staten lsland University Hospital's south site did not have MRI equipment(74:20-22)' Belmonte v. CitY, et ol. tndex No.: 150180/2075 Poge 7 of 76 7 of 16 [*FILED: 8] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 physician at the north site, that Brandon needed an advised Dr. Heidi Baer, the emelgency room Dr' Kenny alerted Dr' chan' the MRI, MRA and MRV (JK, 5 l:16-25,81:18-25, 82:1-10). Brandon was being transferred (JK, pp'83-84)' director of the pediatric ICU at the north site, that Dr.SabrinaDestefano,thepediatricemergencyroomphysicianatthenorthsite'spoke 30:12-23)'15 According to the hospital with Brandon and his mother (SD, 17:12-15, 18:4-9, ately 15:47 or 3:47 P'M' (SD' 19:15-25' records. Brandon arrived at the north site at approxim to that Brandon was transferred to the north site 20:1-4). It was Dr. Destefano's understanding be admitted to the Pediatric Intensive care unit for additional imaging studies at the 5,36:10-20)' Based upon the notations in the recommendation of the neurologist (SD, 35:7-2 contacted Dr. El-sherif (SD, pp'37pre_arrival notes regarding the stroke code, Dr. Destefano 16:57 (4:57 P'M') and performed at 40). The radiological studies were ordered at approximately Si-Pun (SD, pp.40-a\. It was her understanding that Dr' approximat ely 22:06o1 10:06 P.M. pediatric intensive care unit (541621)' chan was Brandon's attending physician in the AccordingtoDr'Chan'hespokewithDr.El-SherifwhoconfirmedthatBrandonwasnot a candidate for while Dr' Chan was off-site at tPA (SC, 10:5-19;.16 This conversation occurred hisoutpatientoffice(SC,40:9-25,41:4-8).Dr.Chanarrivedatthehospitalbetween5:15P.M. 44:labout administering tPA (SC' 43:17 -25 ' and 5:30 P.M. and again spoke with Dr. El-Sherif and opinion of Dr' El-Sherif' the 2,42:9-12). Dr. chan deferred to the recommendation it was Dr' Chan's understanding that neurologist (SC, 44:3-17). Based on this conversation, would be evaluating Brandon (5C,47:14-25, Dr. Nwanneka okolo, the pediatric neurologist annexed to Dr' Sabrina DeStefano's deposition transcript parenthesis refers to the line and page number of ,,o,,. judgment as Exhibit the Dr. oko|o,s motion for summary ls The annexed to page number of Dr. si-Pun chan's deposition transcript The parenthesis refers to the line and Exhibit "N"' Dr. Okolo's motion for summary judgment as rG Belmonte v. CitY, et al, lndex NoJ 150780/2075 Page 8 of 76 8 of 16 [*FILED: 9] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 that Doppler 4g:1-3). After consulting with Dr. Destefano and Dr. Okolo, it was recommended of the distal studies should be performed (SC, 63:3-19),which revealed a possible occlusion right internal carotid artery (SC, pp.1l2-lt4)' site (NO, Dr. Okolo spoke with Dr. El-Sherif twice prior to Brandon's arrival at the north l0:ll-25,11:l-7).t7 was at the south site She was advised that a potential pediatric stroke patient without fuither details cNo, 11:8-25, l2:l-14). Dr. Okolo had never lecommended the Prior to Brandon's administration of tPA for a pediatric patient (l'{O, 13:16 -25, pp.l4-15). the possibility of arrival, Dr. okolo was neither informed that he suffered a stroke nor discussed tPA (NO, 15:4-16;15: 15- I 8). According to Dr. okolo, Brandon did not have a diagnosis at the (NO, 17: 1-9). Dr. Okolo did not have time of transfer so there was no discussion as to treatment the site did not have privileges [including telephone privileges] at the south site in 2014 because a understanding that pediatric department Q.JO, 18: 12-14,19:6-13). In20l4, it was Dr. Okolo's hours and she did not express an the window for tpA in adults was three to three and one-half 20:21-25'21:1-17)' opinion to Dr. El-sherif to not administer the drug to Brandon Q'JO, Dr. Chan contacted Dr. okolo for a consult at approximately 6:30 P.M. and inquired about outside the window Q'{o, 41:1administering tpA but Dr. okolo advised that Brandon was well and Dr' Okolo 17,45:21-25,46:l-7). Dr. Chan also informed Dr' Okolo of the imaging results recommended the possibility of surgical intervention (No, 49:l-23), but the family advised they 50:1-16, 51 7-17)' In were seeking to transfer Brandon to NYU for any further treatment Q'{O, 20l4,the north site did not have pediatric neurosurgeons (l'{O, 5l:18-21,52:6-12)' andpagenumberofDr.Nwannekaoko|o,sdepositiontranscriptannexedto his motion for summary judgment as Exhibit "M"' Belmonte v, CitY, et al, tndex No.: 750780/2075 Pqge 9 of 76 9 of 16 [*FILED: 10] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 Dr. El-Sherif has moved for summary judgment (MS_002) claiming he did not deviate from accepted standards of care and practice and, therefore, he was not the proximate cause of Brandon's injuries. After obtaining a history of symptoms, it was Dr. El-Sherif s decision not to administer tPA to a pediatric patient absent guidelines or protocol to do so, and even if Brandon could be considered a candidate, the window of opportunity to do so had closed. Dr' El-Sherif was also made aware of each incident that could form the basis of the determination to administer tPA, i.e., that Brandon was not feeling well at approximately 7:00 A.M' and was found on the floor at approximately 11:30 A.M. His decision would have been the same if he had personally examined Brandon. The NS-LIU defendants have moved for summary judgment (MS-003) asserting that regardless of Brandon's "last known well time," he was exhibiting the symptoms of a stroke when he woke-up at 6:30 A.M. pale and sweating. Therefore, the window of opportunity to administer tPA closed more than 1.5 hours prior to his arrival at the hospital. However, assuming arguendo that the onset was at 11:30 A.M., the decision not to administer tPA at2:15 P.M. was solely that of the neurologist thereby severing any causal relationship between the NS- LIU defendants at the south site and Brandon's injuries. Finally, assuming again that the window opened at 11:30 A.M., it closed within minutes of Brandon's arrived at the north site 4:00 P.M. Accordingly, the NS-LIU defendants argue that as a matter of law, there was no deviation from accepted standards ofcare and practice at either the north or south site ofthe hospital. Dr. Okolo moves for summary judgment (MS_004) joining in the same arguments as Dr. El-Sherif and the NS-LIU defendants. However, Dr. Okolo also asserts that as she did not have privileges, including by telephone, at the south site of Staten Island University Hospital, she Belmonte v. City, et al. tndex No; 150180/2075 Page 70 of 76 10 of 16 [*FILED: 11] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 could not consult with Dr. El-Sherif or engage as to Brandon's care until he arrived at the north site. Once for at the north site, Dr. Okolo was not notified of Brandon's arrival, could not locate him a consult, and the doctor-patient relationship was not formed consulted with Dr. Chan for the first until 6:30 P.M. when he time. Dr. Okolo recommended the possibility of surgery but the parents decided to transfer Brandon for further care to NYU. AccordinglY, Dr. Okolo argues that there was no deviation in care by her which proximately caused Brandon's injuries, All defendants seek summary judgment on the remaining causes of action, lack of informed consent and the derivative cause of action' In opposition, plaintiff argues that defendants are applying the wrong standard of care to administer the tpA. plaintiff ,,last known argues that the window opens at the onset of the stroke symptoms, not well" time. Once the window opens, the outside time limit to administer the drug is 4.5 hours depending upon certain factors, Plaintiff s expert opines that the onset of the stroke symptoms was 11:30 A.M. when Brandon collapsed and, therefore, the window would have closed at approximately 4:00 P.M. Plaintiff has not opposed the motion for summary judgment on behalf of Dr. Chan and Dr. DeStefano, the doctors at the hospital's north site. ,,The essential elements of medical malpractice are (1) a deviation or departure from injury. accepted medical practice, and (2) evidence that such departure was a proximate cause of Thus, on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Faicco Golub, gl AD3d g17, 818 [2d Dept .2012] [internal citations omitted]). However, conclusory the allegations by a defendant's expert are insufficient to sustain this burden, dispensing with need to consider the sufficiency of plaintiff s opposition (Id.). Where there are conflicting Belmonte v. City, et al. tndex No.: 750750/2015 Poge 77 of 76 11 of 16 v, [*FILED: 12] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 obligations to act in the face of opinions as to the standard of care vis-ir-vis defendant's (see Johnson v' Nassau University established protocol, summaly judgment must be denied the court must limit its function Medical center,140 AD3d 704,706 [2d Dept. 2016]),18 since toissuefindingratherthanissuedetermination(Silveriv.Glaser,-AD3d op. 08168 [2d Dept. 2018] andTrio Asbestos Removal Corp. v. Gabriel -'2018N'Y'Slip & sciacca Certffied pubtic Accountants, LLP,l64 AD3d 864, 865 [2d Dept. 2018]). premised on the lack of There are two elements to a medical malpractice cause of action the risks, benefits and alternatives informed consent. First, that the practitioner failed to disclose would have disclosed and' second' a to the procedure or treatment that areasonable practitioner reasonable person in the plaintiffs position, fully informed, would have elected not to undergo 908 [2010])' the procedure or treatm ent (orphan v. Pilnik, 15 NY3d 907, A doctor must affirmatively assume a duty of care towards a plaintiff. A doctor will be to diagnose a patient's condition and deemed to have assumed a duty of care by undertaking liable for medical malpractice if there is directing a course of action, which could render him/her a departure 140 Medical center' from accepted medical practice (see Johnson v' Nassau university under either theory AD3d 707,708 [2d Dept. 2016]). Therefore, tiability may not attach doctors owed until the Court first determines as a matter of law that the defendant plaintiff (McAlwee v. Westchester Health Associates, a duty to PLLC,163 AD3d 549,551[2d Dept' 2018] andMcNultyv.CityofNewYork,l00NY2d227,232t2003l)'Thisdeterminationisnotan Health Associates' supra)' appropriate subject for expert opinion (McAlwee v' Westchester 18 in the same action on June 1' 2016' The Second Department issued two separate decisions Belmonte v, CitY, et al. tndex No.: 150180/2075 Poge 72 of 76 12 of 16 [*FILED: 13] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 first cause of action, the For the defendants to succeed on summary judgment on the of care or good and accepted court must first determine as a matter of law the lack of a standard teenager in the absence of drug medical practice for the administration of tPA to an adult sized guidelines and hospital protocol in21l4(Plaintiff s Exhibit '(E' -NYSCEF DOC' #142)'te If practice and Brandon met the the Court finds the existence of a good and accepted medical a matter of law that Brandon additional criteria for tPA, the Court must then also determine as was outside the window of opportunity to administer tpA. Based upon the deposition testimony to each of the foregoing (Johnson v' and conflicting expert opinions, questions of fact exist as these questions do not preclude Nassau (Jniversity Medical center,140 AD3d 706). However, summary judgment as to all defendants' consent must be From the outset, the second cause of action for lack of informed grounded in the fact that Brandon's dismissed against all defendants as the allegations are not integrity in the absence of injuries were due to some affirmative violation of his physical to evaluate his condition informed consent, but instead that Dr. El-sherif negligently failed administered in a timely manner (see thereby resulting in affirmative treatment [tPA] not being omitted])' schel v. Roth, 242 AD2d 697,698 [2d Dept. 2010] [internal citations The by NS-LIU defendants have established as a matter of law and uncontroverted of tPA to a plaintiff that only the neurologist [Dr. El-sherifl could order the administration patient. Plaintiff s and their expert expert's affrdavit is silent on this issue. Further, plaintiffs DeStefano, thereby conceding their have not opposed the motion as to Dr. chan and Dr. was not recommended for pediatric and defendants' expert agree that the use of tPA ""t"d in pediatric/teenage patients such as Brandon' i'e'' oatients in 2014. There were also no guidelines for the its use 16 years of age, with the height and weight of an adult' tr tr b ,h., phffiff's Belmonte v. CitY, et ol. lndex No.: 750780/2075 Page 73 ol 76 13 of 16 [*FILED: 14] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 entitlement to summary judgment. Next, assuming arguendo the window opened at 1 1:30 4.M., Dr. El-Sherif s decision not to administer tPA at approximately 2:15 P.M. after ruling out an intercranial bleed would have been within the window of opportunity, thereby severing any causal connection between defendants, North Shore-Long Island Jewish Health System, Inc., Staten Island University Hospital, Emergency Medicine Services of Staten Island, P.C., P.A. Flynn and Dr. Kenny, and Brandon's injuries. Dr. El-Sherifls decision was based on Brandon's age, the diagnostic testing results, and the medical history indicative of the onset of a stroke conveyed to Dr. El-Sherif by telephone, i.e., the events at 11:30 A.M. in Brandon's home and that he could not move one side of his body. Therefore, any purported failure to document or communicate Brandon's medical history to Dr. El-Sherif was not, as a matter of law, the proximate cause of Brandon's alleged injuries. With respect to Dr. Okolo, plaintiff s expert summarily states that she should have engaged in the care of Brandon. Plaintiffs and their expert have offered no authority, legal or otherwise, for Dr. Okolo to engage a patient in a hospital without privileges or that a doctorpatient relationship formed during the limited conversation between Dr. El-Sherif and Dr. Okolo (see generally, McNulty v. City of New York, supra). The facts establish that Dr. Okolo, as a pediatric neurologist, did not undertake a duty to supervise Dr. El-Sherif or have a special relationship with plaintiff (see McAlwee v. Westchester Health Associates, PLLC, 163 AD3d 551). The facts also establish that Dr. Okolo did not undertake to diagnose Brandon's condition or direct Dr. El-Sherif s course of action (Johnson v. Nassau Medical Center, 140 AD3d 708). Therefore, absent a doctor-patient relationship, Dr. Okolo is entitled to summary judgment on all causes ofaction. Belmonte v. City, et al. tndex No.: 150180/2015 Page 74 of 76 14 of 16 [*FILED: 15] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 Dr. El-Sherif INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 s motion for summary judgment is denied as to the first cause of action for deviation from an accepted standard ofcare and the derivative cause ofaction' There is a question of fact whether Dr. El-Sherif should have inquired as to Brandon's size and thereafter advised the family that although the onset of Brandon's symptoms was uncertain, and no guidelines existed for the administration of tPA to children under the age of 18, tPA was an option to be considered based upon his weight and height. The experts and Dr. El-Sherif disagree as to the onset of symptoms and the course of treatment for children on the cusp of adulthood rendering both a question of fact for resolution by a jury. Based on the foregoing, the motion by defendant, Yasir El-Sherif, M.D., is denied as to the first cause and third cause of action and granted as to the second cause of action. The motions by defendants, NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC', STATEN ISLAND IJNIVERSITY HOSPITAL, EMERGENCY MEDICINE SERVICES OF STATEN ISLAND, P.C., JAMES KENNY, M.D., Sru-PLIN CHAN, M.D., NWANNEKA OKOLO, M.D. AND SABRINA DESTEFANO, D.O., are granted in their entirety. Accordingly, it is hereby ORDERED, the motion for summary judgment by defendant YASIR EL-SHERIF, is denied as to the first and third causes ofaction, and granted as to the second cause ofaction for lack of informed in consent (MS-002), and it is further ORDERED, that the motion by defendants, NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC., STATEN ISLAND UNIVERSITY HOSPITAL, EMERGENCY MEDICINE SERVICES OF STATEN ISLAND, P.C., JAMES KENNY, M.D., Sru-PUN CHAN, M.D., AND SABRINA DESTEFANO, D.O., is granted in its entirety and this action, together with all cross-claims, is dismissed as against these defendants (MS-003), and it is further Belmonte v. City, et dl, tndex No.: 150180/2075 Poge 75 ol 76 15 of 16 [*FILED: 16] RICHMOND COUNTY CLERK 12/20/2018 12:24 PM NYSCEF DOC. NO. 170 INDEX NO. 150180/2015 RECEIVED NYSCEF: 12/20/2018 ORDERED, that the motion by defendant, NWANNEKA OKOLO, M.D., is granted in its entirety and this action, together with all cross-claims, is dismissed as against this defendant (MS_004), and it is further ORDERED, that the caption of this action is amended as follows: SUPREME COURT OF THE STATE OF NEW YORK COLINTY OF RICHMOND -----------------x JOHN BELMONTE AND STACY BELMONTE, AS PARENTS AND NATURAL GUARDIANS OF BRANDON BELMONTE, AND JOHN BELMONTE AND STACY BELMONTE, INDIVIDUALLY. Index Plaintiffs. No.: 150180/20i5 -against- YASIR EL-SHERIF. M.D.. :::11i1 and .....x it is fuither ORDERED, that this Order shall be served with Notice of Entry upon all parties, and the Clerk of the Court and the Calendar Clerk who shall amend their records accordingly, and it is further ORDERED, that the Clerk shall enter judgment in accordance with the foregoing. This constitutes the decision and order of this Court. ENTER: December/8,2018 HON. THOMAS P. ALIOTTA, J.S.C. Belmonte v. City, et ol, Index No.: 150180/2015 Page 76 of 76 16 of 16