Hernandez v Khabie

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Hernandez v Khabie 2019 NY Slip Op 34749(U) February 20, 2019 Supreme Court, Westchester County Docket Number: Index No. 58274/2016 Judge: William J. Giacomo 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: WESTCHESTER COUNTY CLERK 02/21/2019 03:12 PM NYSCEF DOC. NO. 133 INDEX NO. 58274/2016 RECEIVED NYSCEF: 02/21/2019 To commence commence the the statutory statutory time time period for right period for appeals appeals as of of right [all, you advised (CPLR 5513 [a]), you are advised to serve of this order, with to serve a copy copy of this order, with notice of of entry, entry, upon upon all parties. parties. notice SUPREME COURT COURT OF THE STATE OF NEW NEW YORK SUPREME THE STATE YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. HON. WILLIAM WilLIAM J. J. GIACOMO, GIACOMO, J.S.C. J.S.C. PRESENT: - --- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - X X JOSE HERNANDEZ HERNANDEZ and BERTINA BERTINA HERNANDEZ, HERNANDEZ, JOSE Plaintiffs, Plaintiffs, Index No. 58274/2016 58274/2016 Index against- againstSequence No. NO.11 & 2 Sequence VICTOR KHABIE, KHABIE, M.D., SOMERS SOMERS ORTHOPAEDIC ORTHOPAEDIC VICTOR SURGERY & SPORTS SPORTS MEDICINE MEDICINE GROUP, GROUP, P.L.L.C., P.L.l.C., SURGERY BETHEL NURSING NURSING & REHABILITATION REHABILITATION CENTER CENTER and BETHEL NORTHERN WESTCHESTER HOSPITAL, NORTHERN WESTCHESTER HOSPITAL, Defendants. Defendants. DECISION & & ORDER ORDER DECISION -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- xX action to recover recover damages damages for for personal personal inJunes, InJunes, etc. (1) Northern Northern In an action Westchester sequence #1); and (2) Victor Westchester Hospital Hospital (motion (motion sequence Victor Khabie, Khabie, M.D. and Somers Somers Orthopaedic Surgery Surgery & Sports Sports Medicine Medicine Group, Group, P.L.L.C P.l.l.C (motion (motion sequence sequence #2) separately separately Orthopaedic move for summary judgment, pursuant to CPLR CPlR 3212, 3212, dismissing dismissing the complaint insofar insofar move for summary judgment, pursuant the complaint asserted against against them: them: as asserted Papers Considered Considered Papers 1. 2. 3. 4. 5. Notice of of Motion/Affirmation Motion/Affirmation of of Patricia Patricia Lacy, lacy, Esq./Exhibits Esq.lExhibits A-P; A-P; Notice Notice of of Motion/Affirmation Motion/Affirmation of of Micah Micah I. Friedberg, Friedberg, Esq./Exhibits Esq.lExhibits A-Z; Notice Affirmation of of Elias Elias Sayegh, Sayegh, Esq. in Opposition/Exhibits Opposition/Exhibits A-F; Affirmation Reply Affirmation of Reply Affirmation of Patricia Patricia Lacy, lacy, Esq. Reply Affirmation of Reply Affirmation of Micah Micah I. Friedberg, Friedberg, Esq./Exhibits Esq.lExhibits AA-BB. AA-BB. Factual and Procedural Procedural Background Background Factual Plaintiffs commenced commenced this this action action against against Victor Khabie, M.D., M.D., Somers Somers Orthopaedic Orthopaedic Plaintiffs Victor Khabie, 1 Surgery & Sports Sports Medicine Medicine Group, Group, P.L.L.C, P.l.L.C, and Northern Northern Westchester Hospital. 1 The Surgery Westchester Hospital. The complaint alleges alleges that Khabie negligently negligently performed performed a right right total knee replacement replacement on complaint that Dr. Khabie total knee plaintiff, Jose Jose Hernandez, Hernandez, on December December 6, 2013, Northern Westchester Hospital. plaintiff, 2013, at Northern Westchester Hospital. Plaintiff was discharged to Bethel Bethel Rehabilitation Rehabilitation and Nursing Nursing Center Center on December December 10, Plaintiff was discharged th,, plaintiff th and 12th 2013. On December December 11 11th plaintiff complained complained of of right right knee knee pain, with 2013. with swelling swelling and redness redness and his leg was was warm Plaintiff was warm to the touch. touch. Plaintiff was sent sent to the the emergency emergency 11 Plaintiffs discontinued the action action against Bethel Nursing Nursing & Rehabilitation Center, Center, pursuant Plaintiffs discontinued the against Bethel & Rehabilitation pursuant to to a Stipulation Stipulation dated dated June 12, 2018. June 2018. [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 02/21/2019 03:12 PM NYSCEF DOC. NO. 133 INDEX NO. 58274/2016 RECEIVED NYSCEF: 02/21/2019 department and seen seen by Dr. Khabie Khabie who noted a cellulitis. cellulitis. He was was discharged discharged on who noted department December 19, 19,2013, Helen Hayes Hayes Hospital. Hospital. 2013, to Helen December The complaint asserts that Khabie cut the bone improperly; improperly; implanted implanted the knee the knee the bone that Dr. Khabie complaint asserts hardware incorrectly; incorrectly; and failed diagnose and treat treat a post-operative post-operative infection, infection, timely diagnose failed to timely hardware The necessitating a total revision in September September 2014 Plains Hospital. Hospital. The White Plains 2014 at White total knee revision necessitating assist staff complaint alleges that Somers Orthopaedic permitted improperly trained staff to assist in trained improperly permitted Orthopaedic Somers that complaint alleges allowed plaintiff, and allowed treat plaintiff, the surgical procedure, procedure, negligently negligently employed employed personnel personnel to treat the surgical medical doctors doctors -who - who failed failed to know know proper proper techniquestechniques - to perform perform surgery. surgery. medical The alleges that that Northern Northern Westchester Westchester negligently negligently provided provided medical medical and complaint alleges The complaint surgical evaluations, treatment, procedures, procedures, tests, tests, services, services, and examinations, care, treatment, evaluations, examinations, surgical advice to plaintiff. plaintiff. advice Northern Westchester Westchester moves moves for summary complaint and the complaint dismissing the judgment dismissing summary judgment Northern certified in internal submits affidavit of McMeeking, M.D., board board certified internal medicine medicine Alexander McMeeking, of Alexander submits an affidavit degree of with a reasonable that, with and infectious infectious disease. disease. Dr. McMeeking McMeeking attests reasonable degree of medical medical attests that, Westchester certainty, there departures on the part part of staff of Northern Westchester of Northern the staff of the were no departures there were certainty, staff hospital the Hospital in the treatment of plaintiff and that no act or omission the hospital staff by omission that plaintiff the treatment Hospital proximately caused caused his injuries. injuries. proximately that McMeeking opines, opines, with a reasonable reasonable degree degree of medical certainty, certainty, that of medical Dr. McMeeking Northern Westchester Westchester did not not depart depart from from the standard standard of care care in maintaining maintaining appropriate appropriate Northern may infection control control practices. practices. He noted noted that infection is a complication complication of of surgery surgery that that may that infection infection occur even even with infection control control practices. practices. Any break in the skin, such as the skin, Any break adherence to infection with adherence occur incision, provides provides an entry entry point point for bacteria which cellulitis, a cause cellulitis, which can cause for bacteria surgical incision, a surgical showed the evidence common superficial superficial skin infection. infection. According McMeeking, the evidence showed According to Dr. McMeeking, common and during, before, appropriate adherence to infection control practices hospital staff before, during, staff hospital by infection control practices appropriate adherence sanitary after hospital staff staff failed failed to provide provide sanitary that the hospital evidence that There is no evidence surgery. There the surgery. after the sanitary area well as a sanitary and sterile instruments for area and surgery as well for the surgery equipment and instruments sterile equipment atmosphere. atmosphere. monitored by the hospital McMeeking attests attests that plaintiff was was appropriately appropriately monitored hospital that plaintiff Dr. McMeeking staff hospital The staff who plaintiffs condition. condition. The hospital staff documented the plaintiffs observed and documented who observed staff appropriately and timely patient's physician. physician. of the patient's directions of and directions orders and the orders followed the timely followed appropriately taken at Plaintiff was was on a cardiac cardiac monitor monitor during during his admission admission and his vital signs signs were were taken Plaintiff the appropriate intervals intervals and documented. documented. Assessments Assessments were were appropriately appropriately done done of of the appropriate plaintiffs neurological, neurological, respiratory, respiratory, and circulatory circulatory systems, systems, as well well as his IV site, incision, incision, plaintiff's tissue the dressing, intake and output. output. Assessment tissue around around wound dressing, Assessment of the wound pain level, and intake documented. the drainage, and swelling swelling were also appropriately appropriately documented. were also wound, drainage, the wound, McMeeking opines opines that signs or symptoms symptoms of infection infection during during were no signs there were that there Dr. McMeeking th . His th through through 10th plaintiffs admission admission to Northern Northern Westchester December 6th from December Westchester from plaintiffs was not level was temperature blood cell count normal ranges. ranges. His pain level within normal were within count were white blood temperature and white inspected was unusual, and he was able to participate physical therapy. The wound was inspected at wound The therapy. physical in was able participate unusual, appropriate intervals intervals and did not show show signs signs of infection. infection. There was no significant significant There was appropriate [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 02/21/2019 03:12 PM NYSCEF DOC. NO. 133 INDEX NO. 58274/2016 RECEIVED NYSCEF: 02/21/2019 treatment that the treatment states that further states incision. He further the incision. swelling, redness, drainage, warmth at the drainage, or warmth swelling, redness, was appropriate. the staff 2013 admission rendered during December 12, 12,2013 admission by the staff was appropriate. during the December rendered the was resolved skin infection superficial skin Dr. McMeeking infection was resolved by the the superficial that the opined that McMeeking opined effect Westchester on December plaintiff's discharge discharge from Northern Westchester December 19, 2013, 2013, and did not effect from Northern plaintiff's negative were cultures were negative The blood course. The knee or his subsequent blood cultures surgical course. subsequent surgical right knee his right the surgical cellulitis did not The cellulitis meaning the infection did not not spread spread systemically. not affect affect the surgical systemically. The the infection meaning thigh. right thigh. the right incision limited to the was limited incision and was dismissing judgment dismissing summary judgment for summary Dr. Khabie Khabie and Somers Somers Orthopaedic Orthopaedic also also move move for M.D., board of Michael affirmations of the Michael Kelly, M.D., board expert affirmations submit expert they submit support, they complaint. In support, the complaint. radiology. certified in radiology. certified Luchs, M.D., board board certified Jonathan Luchs, surgery, and Jonathan orthopaedic surgery, certified in orthopaedic that Dr. Khabie's opined, with a reasonable reasonable degree degree of medical medical certainty, certainty, that Khabie's Dr. Kelly opined, of omissions of acts or omissions that no acts care and that of care care met the standard of the standard plaintiff met of plaintiff treatment of and treatment care and the of review Kelly's Dr. injuries. alleged Dr. Khabie Khabie were a proximate cause of plaintiff's alleged injuries. Kelly's review of the plaintiff's of cause were proximate records bone cuts were made correctly correctly and appropriately appropriately were made the bone that all the revealed that films revealed records and films the allow the appropriately to allow cut appropriately were cut tibia were within femur and tibia The femur of care. The standard of the standard within the using specifications, using manufacturer's specifications, components accordance with the manufacturer's with the implanted in accordance components to be implanted or documentary or there is no documentary that there states that the Kelly states equipment. Dr. Kelly manufacturer's equipment. the manufacturer's chose also time. Dr. Khabie radiographic evidence evidence that any time. Khabie also chose loosened at any components loosened the components that the radiographic that the confirm that x-rays confirm the x-rays an appropriate According to Dr. Kelly, the degrees. According angle of 3 degrees. appropriate angle arthroplasty that the plaintiff's opined that posterior tibial appropriate. Dr. Kelly Kelly opined plaintiff's arthroplasty was appropriate. slope was tibial slope posterior slope tibial slope posterior resulting cut failed due to arthrofibrosis and the posterior tibial cut and resulting posterior tibial tibial the posterior arthrofibrosis failed due arthrofibrosis. were responsible for development of arthrofibrosis. for the development were not responsible that Dr. Khabie claim that Dr. Kelly opines that merit to plaintiffs' plaintiffs' claim Khabie there is no merit that there further opines Kelly further sized incorrectly used unstable, placed the components a manner that made it unstable, used an incorrectly sized made that manner in components the placed damage any damage caused any or caused component, plaintiff's anatomy properly, or anatomy properly, measure plaintiff's failed to measure component, failed with accordance in acted Khabie Dr. requiring additional surgery. He further opines that Khabie acted accordance with that further opines requiring additional surgery. knee the knee of the infection of never had an infection the plaintiff never that plaintiff times and that care at all times of care standard of the standard sometime cellulitis infection superficial cellulitis prosthesis incision. Plaintiff Plaintiff developed infection sometime developed a superficial prosthesis or the incision. administered Khabie Moreover, after his discharge from Northern Westchester. Moreover, Dr. Khabie administered Westchester. Northern from discharge after with good prophylactic antibiotics antibiotics prior prior to surgery, accordance with good and accepted accepted standards standards surgery, in accordance prophylactic prior infection of symptoms of infection prior to his signs or symptoms any signs of practice, and plaintiff did not exhibit exhibit any and plaintiff of practice, discharge from Northern Westchester. Westchester. from Northern discharge plaintiff's patella the plaintiff's cause the Khabie's actions patella baja actions did not cause that Dr. Khabie's opines that Kelly opines Dr. Kelly during error some caused been had baja (an abnormally low-lying patella). the patella baja been caused by some error during patella the If patella). low-lying abnormally plaintiff's The plaintiff's x-rays. The postoperative x-rays. present on postoperative surgery, been immediately immediately present have been would have surgery, it would the shortening caused shortening of the that caused patella arthrofibrosis that postoperative arthrofibrosis caused by postoperative was caused patella baja was training, and education, training, patellar Kelly opined Khabie's education, given Dr. Khabie's that given opined that tendon. Dr. Kelly patellar tendon. the requisite experience, he was exceptionally qualified, experienced, and possessed possessed the requisite skill qualified, experienced, was exceptionally experience, arthroplasty. to perform knee arthroplasty. total knee the total perform the [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 02/21/2019 03:12 PM NYSCEF DOC. NO. 133 INDEX NO. 58274/2016 RECEIVED NYSCEF: 02/21/2019 x-ray images Dr. Luchs Luchs opines, opines, to a reasonable reasonable degree degree of medical medical certainty, certainty, that that all x-ray images good position between December December 6,2013, May 20, 20,2014, demonstrate good position and alignment alignment 2014, demonstrate 6, 2013, and May between normal a show images The images show normal total prosthesis and there evidence of loosening. The total of loosening. there is no evidence of the prosthesis knee the following slope tibial posterior knee arthroplasty. further opines that the posterior tibial slope following the knee the that opines further He knee arthroplasty. The posterior range. The standard range. arthroplasty and standard posterior slope slope acceptable and within an acceptable was well within arthroplasty was Luchs Dr. degrees. 6.14 degrees through at least May 20, 2014, was between 5.01 degrees and 6.14 degrees. Luchs 2014, was between least May through joint that the joint position and that good position further opines that the joint line was aligned and in a good was well aligned joint the that opines further imaging. radiographic posterior tibial revised based based on radiographic imaging. slope did not need to be revised tibial slope line and posterior was not baja, patella The x-ray taken May 20, 2014, shows possible patella baja, however, however, it was possible shows 2014, The x-ray taken May warrant revision radiographically revision arthroplasty. arthroplasty. enough to warrant significant enough ally significant radiographic good and accepted Plaintiffs argue that Dr. Khabie Khabie departed departed from from good accepted argue that opposition, Plaintiffs In opposition, argue also Plaintiffs injuries. medical practice and that such departures caused plaintiff's injuries. Plaintiffs also argue plaintiff's caused departures such that medical practice Somers therefore Somers is and therefore Orthopaedic and that Khabie was Somers Orthopaedic of Somers employee of was an employee that Dr. Khabie Westchester, vicariously responsible responsible from Khabie's malpractice. malpractice. As to Northern Northern Westchester, from Dr. Khabie's vicariously doctor with than merely more than was more Khabie was plaintiffs argue issues of merely a doctor exist as Dr. Khabie fact exist of fact that issues argue that plaintiffs website Westchester Northern Westchester website the Northern that the admitting privileges there. Plaintiffs point out that point out there. Plaintiffs admitting privileges orthopedic & sports of orthopedic co-chief of services, co-chief identifies Dr. Khabie Khabie as the chairman of sports surgical services, of surgical the chairman identifies sports director of sports spine institute, medicine, co-director of orthopedic and spine institute, and director the orthopedic of the medicine, co-director medicine. medicine. certified orthopaedic of a board Plaintiffs submit submit a redacted redacted expert expert affirmation board certified orthopaedic affirmation of Plaintiffs that certainty, medical of medical certainty, that surgeon. Plaintiff's expert opines, within reasonable degree degree of within a reasonable expert opines, surgeon. Plaintiff's of plaintiff treatment of Dr. Khabie Khabie departed departed from from good accepted medical medical practice practice in his treatment plaintiff good and accepted Dr. treatment and and medical which resulted in the surgical intervention intervention and medical treatment further surgical for further the need for which resulted caused plaintiff's pain and discomfort. discomfort. caused plaintiff's flawed and based Plaintiff's expert states that Kelly's opinion based upon upon incorrect incorrect opinion is flawed that Dr. Kelly's expert states Plaintiff's According ts. and inaccurate inaccurate information information as Dr. Kelly utilized utilized Dr. Luch's Luch's measuremen measurements. According to plaintiff's expert, expert, many many of the x-rays used were incorrectly positioned, positioned, therefore, therefore, Dr. were incorrectly x-rays used of the plaintiff's obtain a Luchs' affidavit affidavit and report report are fundamentally inaccurate. In order order to obtain flawed and inaccurate. fundamentally flawed Luchs' plaintiff's by used was tibia axis of· more accurate finding, the the central central longitudinal longitudinal axis of the was plaintiff's accurate finding, more plaintiffs' According ly. expert which showed the slope was zero degrees preoperatively. According to plaintiffs' preoperative degrees zero was expert which showed the slope and must finding and expert, atypical, and notable notable finding must be considered considered by the significant, atypical, this is a significant, expert, this Khabie did not surgical procedure. the surgical surgeon in determining methods used used in the procedure. Dr. Khabie the methods determining the surgeon accepted medical good and accepted consider medical practice. practice. from good departure from was a departure which was finding which consider this finding ive preoperative were no comprehens Plaintiff's expert expert further opines that comprehensive preoperative xthere were that there further opines Plaintiff's whereas standard rays performed performed in the months prior prior to the surgery standard practice practice is to perform perform surgery whereas the months order x-ray in order to at least least an 18 or 36 inch coronal coronal x-ray sagittal x-ray x-ray and an 18 inch sagittal for surgery. appropriately template knee for surgery. template a knee appropriately surgery by during surgery created during was created Plaintiff's expert opines that patella baja baja was that a patella further opines expert further Plaintiff's of result direct was line joint of raising Dr. Khabie Khabie by raising raising plaintiff's plaintiff's joint line. The raising of the joint was a direct result of The joint cut and removal the cut the surgery the made by Dr. Khabie Khabie in performing performing the surgery including including the removal decisions made the decisions [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 02/21/2019 03:12 PM NYSCEF DOC. NO. 133 INDEX NO. 58274/2016 RECEIVED NYSCEF: 02/21/2019 good and of good was a departure of bone. According plaintiffs' expert, approach was departure of expert, this approach According to plaintiffs' of bone. of plaintiff's accepted medical medical practice practice and a competent producing cause cause of plaintiff's pain and competent producing accepted surgical procedures. discomfort and necessitated necessitated the need for procedures. Plaintiff's Plaintiff's expert expert further surgical for further discomfort with improved significantly be not will and opines that plaintiff's condition condition is permanent permanent not significantly improved with that plaintiffs opines of Dr. Khabie's surgery or medical medical intervention intervention and the permanency permanency is the result result of Khabie's additional surgery ·.additional the surgery. during the departure from good and accepted accepted medical medical practice practice during surgery. from good departure failed to assert In reply, Northern Northern Westchester plaintiff's expert expert failed assert any any that plaintiff's argues that Westchester argues sufficiency of its the sufficiency challenge the departure from standard of of care care on its part and fail to challenge from the standard departure theory in new a raised plaintiff that plaintiff raised expert Northern Westchester argues that new theory Westchester argues affirmation. Northern expert affirmation. Khabie's malpractice for Dr. Khabie's opposition, arguing that that Northern Northern Westchester Westchester is liable liable for malpractice opposition, arguing orthopedics. of orthopedics. because it hired hired him as chief chief of because Discussion Discussion that the "In order order to establish establish liability liability for for medical medical malpractice, malpractice, a plaintiff plaintiff must must prove prove that that and practice of standards defendant accepted community community standards of practice that from accepted departed from deviated or departed defendant deviated such departure proximate cause cause of of the plaintiff's plaintiff's injuries" injuries" (Leavy (Leavy v Merriam, Merriam, 133 was a proximate departure was such judgment in a medical summary judgment for summary moving for AD3d Dep't 2015]). physician moving medical 2015]). A physician 637 [2d Dep't AD3d 636, 637 from departure no was there that either facie, malpractice action must establish, prima facie, either that there was departure from prima malpractice action must establish, was not departure was alleged departure any alleged that any or that accepted medical practice, practice, or of medical standards of community standards accepted community 624 623, AD3d 104 Aronov v Soukkary, a proximate proximate cause of the plaintiff's plaintiff's injuries injuries (see Aronov Soukkary, AD3d 624 cause of Once a AO3d 933, 936 [2d Dep't Dep't 2013]; DiGeronimo v Fuchs, Fuchs, 101 AD3d 936 [2d Dep't Dep't 20121). 2012]). Once 2013]; DiGeronimo the plaintiff shifts to the defendant made such burden shifts plaintiff to "submit "submit showing, the burden such a showing, defendant has made physician" defendant the by showing facie evidentiary facts materials to rebut rebut the prima facie showing the defendant physician" the prima or materials facts or evidentiary [1986]). NY2d (Alvarez Prospect Hasp., 68 NY2d 320, 324 [1986]). Hosp., Prospect v (Alvarez not was not she was that he or she showing that "A plaintiff plaintiff cannot cannot rebut rebut a defendant physician's showing defendant physician's offering an expert's negligent and and defeat motion for by offering expert's affidavit affidavit judgment by· summary judgment for summary defeat a motion negligent conclusory in nature which are conclusory containing general general allegations medical malpractice malpractice which nature and of medical allegations of containing of elements the establish unsupported elements of medical medical tending to establish evidence tending competent evidence unsupported by competent vv Alvarez also see 2009]; Dept [2d 848, malpractice" (Shectman 68 AD3d 849 Dept 2009]; see also Alvarez AD3d Wilson, v (Shectman malpractice" 47 Corp., Health & Hasps. New York Prospect NY2d at 324-325; 324-325; Shahid Shahid v New Yark City City Health Hasps. Carp., Hosp., 68 NY2d Prospect Hasp., AD3d Dept 2008]). 2008]). AD3d 800, 801 [2d Dept of showing of facie showing Khabie and Somers Somers Orthopaedic Orthopaedic made made a prima prima facie Here, Dr. Khabie that opinion expert through g entitlement to summary judgment by demonstrating through expert opinion that Dr. demonstratin summary judgment entitlement that any practice or that medical practice Khabie did deviate from the accepted standards of medical any alleged alleged standards of accepted the from deviate not Khabie Hosp., Prospect v Alvarez Prospect Hasp., departure was not proximate cause plaintiff's injuries injuries (see (see Alvarez of plaintiffs cause of not a proximate departure was 2017]). However, 68 NY2d 320; Reustle Reustle v Petraco, Petraea, 155 AD3d 658 [2d Dept Dept 2017]). However, in opposition, opposition, AD3d 658 whether Dr. Khabie fact as to whether plaintiffs' expert affidavit raised raised a triable issue of Khabie departed departed of fact triable issue expert affidavit plaintiffs' proximate a were departures such from medical practice practice and whether whether such departures were proximate accepted medical good and accepted from good 658). AD3d 658). 155 AD3d Petraco, v Reustle cause of plaintiff's injuries (see Reustle Petraea, (see injuries cause of plaintiff's the who is under patient who "A hospital hospital may may not be held liable liable for for injuries injuries suffered suffered by a patient under the resident physicians care of a private private attending physician chosen chosen by the patient patient where where the resident physicians attending physician [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 02/21/2019 03:12 PM NYSCEF DOC. NO. 133 INDEX NO. 58274/2016 RECEIVED NYSCEF: 02/21/2019 attending the private of the orders of the orders out the and nurses nurses employed private attending carry out merely carry hospital merely the hospital employed by the AD3d 1003, physician" (Cham (Cham v St. Mary's Mary's Hosp. of Brooklyn, 72 AD3d 1003, 1004 1004 [2d Dept Dept 2010]), 2010)), of Brooklyn, physician" the attending unless hospital staff attending negligence or the of negligence acts of "independent acts commits "independent staff commits the hospital unless the AD3d Williams, v (Cerny practice" physician's orders contradicted normal practice" (Cerny Williams, 32 AD3d 881, normal by contradicted are orders physician's 2002]). 883 [2d Dept Dept 2002)). AD2d 593 [2d Dept 293 AD2d Pearce v Klein, 293 see Pearce 2006]; see Dept 2006]; judgment as Here, Northern Northern Westchester prima facie entitlement to judgment facie entitlement established its prima Westchester established hospital the hospital that the a matter Northern Westchester's demonstrated that affidavit demonstrated expert affidavit Westchester's expert of law. Northern matter of staff commit any any independent independent acts of negligence, negligence, that attending physician's physician's that the attending acts of staff did not commit were departures alleged orders were not contraindicated normal practice, and that any alleged departures were any that practice, normal by contraindicated orders were proximate cause cause of plaintiffs injuries injuries (see (see Gattling Gattling v Sisters Sisters of of Charity Charity Med. Ctr., of plaintiff's not a proximate fact. of fact. raise to failed raise an issue issue of plaintiffs failed opposition, plaintiffs 2017]). In opposition, Dept 2017)). AD3d 701 [2d Dept 150 AD3d the negligence opines as to the Indeed, the expert affidavit submitted by plaintiffs plaintiffs solely negligence and solely opines affidavit submitted the expert Indeed, AD3d 701; departures Khabie (see (see Gattling Gattling v Sisters Sisters of Charity Med. Ctr., 150 150 AD3d of Charity of Dr. Khabie departures of hospital's the that argument Bedard v Klein, 88 AD3d 754 Dept 2011)). Plaintiffs' argument that the hospital's Plaintiffs' ]). 2011 Dept [2d AD3d Bedard Klein, without merit. motion should Khabie is its chief orthopedics is without of orthopedics chief of because Dr. Khabie denied because should be denied motion Somers of Somers was a private plaintiff was private patient patient of that plaintiff deposition that testified at his deposition Khabie testified Dr. Khabie for Westchester Northern from Orthopaedic, that he did not receive any compensation from Northern Westchester for compensation any receive not Orthopaedic, that administrative with his administrative plaintiffs nothing to do with plaintiff had nothing of plaintiff care of that his care care, and that plaintiff's care, positions held at Northern Northern Westchester. Westchester. positions Accordingly, Accordingly, it is judgment, summary judgment, for summary ORDERED Northern Westchester motion for Hospital's motion Westchester Hospital's that Northern ORDERED that pursuant CPLR 3212, 3212, dismissing dismissing the insofar as asserted asserted against against it is complaint insofar the complaint pursuant to CPLR further GRANTED (motion (motion sequence sequence #1); and it is further GRANTED ORDERED Khabie, M.D. and Somers Somers Orthopaedic Orthopaedic Victor Khabie, of Victor motion of the motion that the ORDERED that CPLR judgment, pursuant Surgery Group, P.L.L.C pursuant to CPLR summary judgment, for summary P.L.L.C for Medicine Group, Sports Medicine Surgery & Sports (motion them is DENIED 3212, complaint insofar asserted against DENIED (motion against them insofar as asserted the complaint dismissing the 3212, dismissing sequence #2). sequence Settlement the Settlement appear in the Counsel for parties are directed directed to appear remaining parties for all remaining Counsel proceedings. further for a.m. Conference Part, Room 1600, on March 2019, at 9:15 a.m. for further proceedings. 9:15 at 2019, 19, March Room Conference Dated: Dated: York New York White Plains, New White Plains, 2019 February 20,2019 February 20, w~ H ~ O . J.S.C. H: ALPHABETICAL Khabie WESTCHESTER/Hernandez v. Khabie LIST - WESTCHESTER/Hernandez MASTER LIST ALPHABETICAL MASTER [* 6] 6 of 6

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