Ramsey v Stephens

[*1] Ramsey v Stephens 2019 NY Slip Op 52201(U) Decided on December 23, 2019 Supreme Court, Allegany County Brown, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2019
Supreme Court, Allegany County

Sandra Ramsey, Individually and JAMES A. RAMSEY, as Executor of the Estate of ERNEST H. RAMSEY, Deceased, Plaintiffs,

against

Vicky K. Stephens, P.A., JOHN DOE, M.D. JANET K. REISMAN, R.N., JONES MEMORIAL HOSPITAL, THE MEMORIAL HOSPITAL OF WILLIAM F. AND GERTRUDE F. JONES INC. d/b/a JONES MEMORIAL HOSPITAL and DELPHI HEALTHCARE, PLLC, Defendants.



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Black Lyle & Habberfield LLP (Kevin Habberfield, Esq., of counsel) for plaintiffs

Hirsch & Tubiolo, P.C. (Nicholas Reeder, Esq. of counsel) for defendants Stephens and Delphi

Colucci & Gallaher, P.C. (Marylou K. Roshia, Esq., of counsel)for defendants Reisman and Jones
Thomas P. Brown, J.

Decision and Order

In this medical malpractice action, all defendants have moved for summary judgment.

In support of the motion of defendants Stephens and Delphi, the Court has read the affirmation of Nicholas J. Reeder, Esq., dated August 29, 2019, the affidavit of Thomas A. Rocco, M.D., dated July 8. 2019 and the affidavit of Mervyn R. Whelan, M.D., dated August 30, 2019. In opposition to the motion, the Court has read the affidavit of Kevin M. Habberfield, Esq., dated October 22, 2019, a physician's affidavit dated October 18, 2019, a physician's affidavit dated October 17, 2019 and a registered nurse's affidavit dated October 19, 2019.

In support of the motion of defendants Reisman and Jones, the Court has read the affirmation of Marylou K. Roshia, Esq., dated September 5, 2019, the reply affirmation of Marylou K. Roshia, Esq. and the affirmation of Frank M. Lee, M.D. In opposition to the motion, the Court has read the affidavit of Kevin M. Habberfield, Esq., dated October 22, 2019, a physician's affidavit dated October 18, 2019, a physician's affidavit dated October 17, 2019 and a registered nurse's affidavit dated October 19, 2019 .

The Court heard oral argument in chambers on October 29, 2019 and reserved decision.

Factual Background

The parties do not dispute that Ernest Ramsey sought treatment at Jones Memorial Hospital's emergency room on July 17, 2013. He complained of pain and weakness and was unable to walk into the emergency room. He was eventually seen by defendant Reisman, a registered nurse, for a triage. He was then seen by defendant Stephens, a physician's assistant, for treatment. While in the process of being diagnosed, he suffered a cardiac arrest and died.

This lawsuit ensued. Plaintiffs' amended complaint contains medical malpractice or negligence causes of action against defendants Stephens and Reisman as well as causes of action against their respective employers, Delphi and Jones, alleging they are vicariously liable for the conduct of their employees. Plaintiffs' amended complaint also contains causes of action under the Emergency Medical Treatment and Active Labor Act (EMTALA) against these four defendants.

Summary Judgment Standard

Motions for summary judgment require the Court to search the record and determine whether it presents triable issues of material fact [ Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957)]. The evidence must be construed in a light most favorable to the non-moving party [see, David D. Siegel, New York Practice, Section 281 (Thomson/West 2005) citing Weiss v. Garfield, 21 AD2d 156 (3rd Dept. 1964)]. Once the party moving for summary judgment has met its prima facie burden of showing an absence of issues of material fact [Alvarez v. Prospect Hospital, 68 NY2d 320 (1986)], the non-moving party must then point to triable issues of material fact in order to stave off summary judgment.

A prima facie case of medical malpractice is made out when a plaintiff establishes that there was deviation from accepted practice and that the deviation was a proximate cause of injury [Salter v. Deaconess Family Medicine Ctr. 267 AD2d 976 (4th Dept. 1999)]. A defendant moving for summary judgment in a medical malpractice case 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 [Sawyer v. Kaleida Health, 112 AD3d 1341 (4th Dept. 2013)]. If the burden is met, the plaintiff may then demonstrate that there are triable issues of fact by "submitting an expert affidavit attesting to a departure from accepted practice and containing the attesting expert's opinion that the omissions or departures were a competent producing cause of the injury" [Latona v. Roberson, 71 AD3d 1498 (4th Dept. 2010) (internal quotation marks omitted) (parenthetical material omitted)], or by relying on medical records submitted by a defendant to raise a triable issue of fact [Sawyer, supra]. An expert affidavit that is speculative or unsupported by medical evidence in the record or other evidentiary foundation has no probative force and is insufficient to withstand summary judgment [Wilk v. James, 108 AD3d 1140 (4th Dept. 2013)].

Motions by Defendants Reisman and Jones

Malpractice/Negligence Claims:

These defendants assert that when Ernest Ramsey presented to Jones Memorial Hospital, he was already in extremis, and no medical interventions could have saved his life. As a consequence, they argue, none of their actions, or inactions, could have been a proximate cause of his death.

The expert affirmation of Frank Lee, M.D., describes in detail Ernest Ramsey's medical history. His electrocardiogram history showed a myocardial infarction in 2003, decreased systolic function and moderate to severe pulmonary hypertension in 2007 and non-specific intraventricular block and systolic dysfunction in 2013. According to Dr. Lee, a cardiac catheterization was done in 2013 and Mr. Ramsey's cardiologist advised that, because of a decrease in his ejection fraction, he was at higher risk of sudden cardiac death, and was a candidate for an implantable cardioverter defibrillator (ICD). For reasons that are in dispute, the ICD was not implanted.

According to Dr. Lee, on the evening of July 17, 2013, Mr. Ramsey presented to Jones's emergency room at 9:41 p.m., complaining of weakness and pain, but "not incapacitated." His medical records show that he was triaged by defendant Reisman, a registered nurse, at 10:21 p.m. He weighed approximately 300 pounds, which for his height made him morbidly obese. His blood pressure was recorded as 96/61 and his oxygen saturation was 98%.

Dr. Lee opines that these defendants performed a timely and proper triage upon Mr. Ramsey, and that the 40 minute delay between registration and triage was within the applicable standard of care. Considering that Mr. Ramsey's complaints of pain and weakness were "vague," Dr. Lee opines that defendants Reisman and Jones provided prompt and adequate attention to him under the circumstances.

Dr. Lee states that Mr. Ramsey was treated by defendant Vicky Stephens, a physician's assistant, at 10:45 p.m., and that the 24 minute delay between triage and treatment was within the applicable standard of care under the circumstances of the case. Dr. Lee opines, that after defendant Stephens administered intravenous fluids and ordered blood work, "Mr. Ramsey's condition deteriorated quickly." According to Dr. Lee, he sustained a cardiac arrest at 11:26 p.m. A code was called, and according to Dr. Lee, the emergency room staff responded promptly and "within the standard of care at all times and in all respects." Dr. Lee notes that Mr. Ramsey's wife and next of kin, Sandra Ramsey, "wavered" concerning defendants' resuscitation efforts, and that although their conduct caused a delay, in any event, resusciation more than likely would not have been successful.

Dr. Lee concludes that, "within a reasonable degree of medical certainty, nothing that Nurse Reisman or any of the employees at Jones Memorial did nor did not do caused or contributed to the injuries now asserted in plaintiffs' bill of particulars."

Jones also asserts that none of the claims in plaintiffs' amended complaint or bill or particulars identifies an employee or agent of Jones other than defendant Reisman. Jones argues that plaintiffs are obligated to do so, in default of which Jones is entitled to summary judgment on all medical malpractice or negligence claims against Jones based on unidentified employees.

Plaintiffs have submitted an expert affidavit in opposition from an emergency room physician [FN1] . Based upon his review of the medical records and the deposition of Rosemary Cole, he states that Mr. Ramsey arrived at Jones's emergency room at approximately 8:00 p.m. on the evening in question. This physician states that Mr. Ramsey was not registered until 9:41 p.m., in part because he was "unable to independently stand or walk into the facility from his vehicle" [*2]and that he was not triaged by nurse Reisman until 10:21 p.m., 40 minutes after he was registered. These delays, he opines, were a "clear deviation from Jones Memorial Hospital's policy, as well as applicable regulations [10 NYCRR 405.19(e)(2)], which provide that "upon arrival" patients shall have an initial evaluation by a qualified RN. Triage precedes registration."

This physician also opines that Jone's emergency rooms was insufficiently staffed because blood tests were ordered by the provider ( in this case, P.A. Stephens) at 10:42 p.m. but blood was not drawn until 11:34 p.m., a delay of 52 minutes. He opines that this delay violated an applicable regulation [10 NYCRR 405.19(d)(4)] which required lab specimens to be processed on a timely basis.

According to this physician, once a code had been called to treat Mr. Ramsey's cardiac arrest, the Advanced Cardiovascular Life Support (ACLS) guidelines, as well as the provisions of Jones's Code 99 policy, should have been followed. Defendants Reisman and Jones failed to do so, he opines. Only "basic life support" interventions were provided, he states. Despite Code 99 policy, epinephrine was not administered, notwithstanding that any qualified nurse could have done so. According to this physician, the failure to administrate epinephrine or other medication was a deviation from ACLS guidlines and the applicable standard of care.

This physician also asserts that, once a code was called, the standard of care required that it be continued until all possible interventions under ACLS guidelines had been exhausted. He opines that defendant Reisman and all other persons present during the code deviated from the standard of care by terminating resuscitative attempts after 12 minutes. He admits that Mr. Ramsey's wife advised the provider and personnel during the code that her husband "wouldn't want to be a vegetable." Still, he opines, her statement was an insufficient basis for terminating the code, first, because it was never determined that Mr. Ramsey would become a "vegetable" if the code were continued, and second, because the standard of care dictated that the code should be continued if family members were in "emotional distress."

Finally, this physician opines that Jones was responsible for assigning an emergency room physician to supervise defendant Stephens, and failed to make it "clear to all involved who was to be called in the event assistance was required that evening." He states that the standard of care required that a physician should have been called given the seriousness of Mr. Ramsey's condition, but that the depositions of witnesses indicated that "nobody could determine who was responsible for [...] responding if called."

Regarding proximate cause, this physician opines that, within a reasonable degree of medical certainty, "these deviations and violations caused Mr. Ramsey to suffer an untimely death and loss of chance for survival." First , he observes that medications could have been administered to treat Mr. Ramsey's high serum potassium levels (hyperkalemia) that disrupted his heart's normal rhythym. They were not, he opines, because "Mr. Ramsey was in the emergency department for at least 3 hours" and "there were many delays" which prevented "timely and accurate diagnosis and treatment." Specifically, he opines that there were "delays in triage, in being evaluated by a provider, in obtaining IV access, in obtaining blood for laboratory studies , in delivering the blood to the lab [...] had these occurred in a timely fashion, it is my opinion that Mr. Ramsey, to a reasonable degree of medical certainty, could have been saved." Second, he notes "epinephrine should have been administered every 3-5 minutes during the code per ACLS guidlelines, but was not" and that "had ACLS guidelines [...] and the Code 99 policy been [*3]followed, Mr. Ramsey could have survived." Third, he states that cardiac monitoring showed that Mr. Ramsey's heart showed electrical activity ["QRS complexes"] as late as 11:34 p.m. such that he could have been resuscitated had these defendants complied with ACLS guidelines during the code. He claims to have "personally seen many patients with similar situations to Mr. Ramsey be resuscitated successfully with proper care." Finally, he opines that "had an attending/supervising physician been called and responded, Mr. Ramsey could have received the care and treatment he desperately needed."

Plaintiffs have also submitted expert affidavits from a physician who is a pathologist, and from a registered nurse.

The pathologist observes that the blood sample drawn from Mr. Ramsey was mixed with tissue fluid (hemolyzed) such that his serum potassium levels were falsely elevated. He also notes that the medical records show that, since the blood sample was drawn after Mr. Ramsey's heart arrested, and near the time of his death, the lab values would be inaccurate. These observations, he claims, undermine the opinions of defendants' experts that Mr. Ramsey was in extremis to the point that nothing could be done to save him.

The registered nurse observes that Jones's medical records do not indicate when a patient physically presents to the emergency room, but merely reflect when a patient's data is entered into its medical records. The resulting inference is that Mr. Ramsey could have arrived earlier than the medical records indicate (9:41 p.m.), as would be consistent with the deposition of Rosemary Cole, who testified that he arrived at 8:00 or 8:30 p.m.

The registered nurse's affidavit also states that many of Mr. Ramsey's medical records were modified after he died, sometimes weeks later. While she concedes that such changes might be prompted by legitimate reasons, she also concludes that some of the changes have no "reasonable explanation" or "justification whatsoever." These would include modifications to his lab specimen file and code sheet file, made several days after his death.

The pathologist's affidavit states that the faulty lab tests results and potentially falsified medical records constitute flawed data that undermine the validity of the opinions of defendants' experts.

The Court concludes that defendants' experts have successfully met their summary judgment burden by showing the absence of any departures or deviations from the standard of care, and by establishing that nothing that they did, or failed to do, could have caused or contributed to Mr. Ramsey's death. Dr. Lee's affidavit set forth an adequate factual basis for his opinions that these defendants complied with the applicable standard of care in their treatment of Mr. Ramsey, and suffices to establish the absence of deviations therefrom. He opined that Jones's emergency room was "appropriately staffed with properly licensed individuals," and that defendant Reisman and Jones's emergency room personnel "properly responded in a timely and prompt manner" to Mr. Ramsey's vague complaints of pain and weakness.

Regarding causation, there is no question that Mr. Ramsey's extensive cardiac history placed him at high risk for sudden cardiac death such that, as Dr. Lee states, "any additional insult' could prove fatal. Dr. Lee points out that the records show Mr. Ramsey's heart had an ejection fraction of only 20 to 25%,, meaning that its ability to pump blood had been severely compromised. Mr. Ramsey's cardiologist, Dr. Chaudry, recommended that an ICD be implanted for the very reason that, should a cardiac event occur, by the time he could be seen at a hospital, [*4]it would be too late to help him. Dr. Lee's affidavit shows that it was Mr. Ramsey's medical history, and not Jones's or Reisman's conduct, that caused Mr.Ramsey's untimely death.

Even so, plaintiffs' experts have successfully identified several deviations from what is, in their opinions, the applicable standard of care, and showed that these deviations, in their opinions, caused or contributed to Mr. Ramsey's death. These include the defendants' failure to perform a timely triage and promptly obtain an electrocardiogram and lab test results.

A material issue of fact is the time of Mr. Ramsey's arrival at defendants' emergency room. Defendants' own records state 9:41 p.m., however plaintiffs' registered nurse's affidavit states this time is merely indicative of when patient data was processed, and is not necessarily indicative of when he "physically presented there." Rosemary Cole testified that he arrived at 8:00 or 8:30 p.m. The discrepancy between these times is material, because defendants' experts' opinions that his treatment was within the standard of care rely upon the 9:41 p.m. arrival time, and would not necessarily be the same if the arrival time was 8:00 or 8:30 p.m.

Even assuming that the 9:41 p.m. arrival time is accurate, plaintiffs' experts opine that the 40 minute delay in triage was a deviation from the standard of care. According to plaintiffs' experts, these deviations led to a delay in accurate diagnosis and treatment, which caused or contributed to Mr. Ramsey's death. These experts also opine that, per Jones's own Code 99 policy, ACLS certified nurses, of which defendant Reisman was one,[FN2] should have administered epinephrine at regular intervals during the resuscitation efforts. This omission, together with defendants' abandoning the code after 12 minutes, were departures from the standard of care that, in their opinion, resulted in Mr. Ramsey's death. Plaintiffs' expert affidavits rely on facts present in the medical record and depositions and are not speculative. Where the non-movant's expert affidavit "squarely opposes" the affirmation of the moving parties' experts, and is supported by facts in the record and is otherwise not vague, conclusory or speculative, the motion for summary judgment should be denied [Mason v. Adhikary, 159 AD3d 1438 (4th Dept. 2018)].

Defendants' attorney argues that plaintiff's expert opinions are conclusory as to what caused Mr. Ramsey's death. The Court finds them to be no more conclusory than defendants' experts' opinions about what did not cause it. The former opine that he could have been saved if certain things that were not done were done. The latter opine that he could not have been saved even if certain things were done that were not done. Both sets of opinions are based on contrary to fact, hypothetical circumstances as to what could or could not have caused Mr. Ramsey's death. But that does not mean the opinions are inadmissible, either at trial or on summary judgment. The Court of Appeals has said that the "cause and effect relationship is one that "perhaps by its very nature" cannot "be established with scientific certainty" and therefore, that opinion evidence as to causation must merely state "a probability supported by some rational basis" [Matott v. Ward, 48 NY2d 455, 461-462 (1979)]. Both plaintiffs' and defendants' expert affidavits meet this standard.

Regarding Jones's argument that it cannot be held vicariously liable for the conduct of unidentified employees, it appears that the fourth cause of action in plaintiff's amended complaint alleges that Jones is vicariously liable for Reisman's conduct. Plaintiffs' bill of particulars alleges [*5]that Jones was "vicariously liable for the actions of its staff, agents, servants and employees including the above-named defendants, Janet K. Reisman, R.N."[FN3] Given that such a cause of action was properly pleaded, Jones has not met its burden of showing that it cannot be held vicariously liable for the Reisman's conduct, e.g., by showing that Reisman was not its employee.

Jones has also argued that it cannot be held vicariously liable for the actions of Vicky Stephens P.A., because she was an employee of Delphi and not Jones. For the same reason, Jones argues it cannot be held liable for inadequate supervision of Stephens. On this issue, Jones has met its burden by submitting proofs in admissible form showing that Stephens was not Jones employee, and these proofs are not rebutted by plaintiffs. Jones has further argued that it cannot be held liable for the conduct of other unidentified employees, and the Court agrees that plaintiffs' failure to name such employees in its complaint or bill of particulars precludes any such claims against Jones [Gannotta v. Long Island College Hospital, 92 AD2d 930 (2nd Dept. 1983)].

EMTALA claims

Dr. Frank Lee's expert affidavit states that "there is nothing in the record to indicate that Mr. Ramsey was treated any differently than any other patient presenting to the emergency room". Therefore, he opines, there was no violation of EMTALA.

Plaintiff's emergency medicine expert disagrees. He states that EMTALA regulations were violated when Mr. Ramsey was not triaged and examined within 2 to 4 minutes of his arrival in the emergency room. This is so, he opines, because EMTALA requires hospitals to "develop and adhere to guidelines detailing the expected time frame for triage and evaluation in the emergency room," which according to Jones's emergency room policy, was 2 to 4 minutes after arrival. Since Mr. Ramsey was registered at 9:41 p.m. but not triaged until 10:21, he opines that the hospital violated both its own policy and EMTALA.

Jones has argued that no cause of action can arise under EMTALA unless a patient is discharged or transferred, which Ernest Ramsey was not. For this proposition it relies upon Harry v. Marchant, 291 F.3d 767 (11th Cir. 2002) The Court reads this case as applying to claims under EMTALA's stabilization requirement [FN4] , not to claims under EMTALA's medical screening requirement [FN5] . Still, insofar as plaintiffs have asserted claims under EMTALA'S stabilization requirement, they should be dismissed, because it is undisputed that Ernest Ramsey was not transferred or discharged.

Cases that are binding upon this court indicate that disparate screening or treatment of a patient states a claim under EMTALA's medical screening requirement [Chipley v. Stephenson, 72 AD3d 1548 (4th Dept. 2010); Lidge v. Niagara Falls Medical Center, 17 AD3d 1033 (4th Detp. 2005)]. Therefore, in order to obtain summary judgment on these claims, defendants would have to demonstrate by proofs in admissible form that Jones did not deny or delay Ernest Ramsey a medical screening examination compared with other patients who presented with the [*6]same symptoms. Jones has not submitted an affidavit from someone with personal knowledge to that effect. The court concludes that Jones is not entitled to summary judgment on plaintiffs' claims under EMTALA's medical screening requirement.

The Court agrees with these defendants that EMTALA creates causes of action only against "participating hospitals," [ 42 U.S.C. §1395dd] and not individuals such as defendant Reisman . Therefore, defendants have met their summary judgment burden as to her, and the EMTALA claims against defendant Reisman should be dismissed.

Motion by Defendants Stephens and Delphi

Malpractice/Negligence Claims

These defendants argue that the medical records and depositions of witnesses show that they did not depart from the applicable standard of care in their treatment of Ernest Ramsey, and that, in any event, nothing that they could have done would have saved his life. They allege that he was already dying when P.A. Stephens first saw him. They allege that blood test results, which were not available to P.A. Stephens at that time, showed that his serum potassium levels were double the normal upper range limit and caused him to suffer cardiac arrest. They argue that this condition, called hyperkalemia, could have been treated with medications or hemodialysis, but that by the time P.A. Stephens received the blood test results that supported this diagnosis, there was not enough time for these treatments to become effective. They also argue nothing could have been done to resuscitate Mr. Ramsey after his heart stopped beating because it was "totally flaccid" and would not respond to medications.

Delphi also argues that it was not responsible for supervising Stephens, except as to administrative matters, and therefore should not be held vicariously liable for Stephen's conduct.

Plaintiffs's experts argue that these defendants deviated from the applicable standard of care in a number of respects and that these departures were responsible for Mr. Ramsey's demise. They argue that calcium medications should have been administered to lower his serum potassium levels, which caused his cardiac arrest. They claim these levels were falsely elevated, because the blood sample drawn from him was hemolyzed, and that these medications would have reduced the levels such that his cardiac arrest would have been prevented.

After Mr. Ramsey's cardiac arrest, they claim that good and accepted medical practice required that he be intubated and administered epinephrine, but that P.A. Stephens failed to do either. They also argue that the physician who was on duty should have been consulted by P.A. Stephens, but that P.A. Stephens did not do so. They assert that CPR and other efforts to resuscitate Mr. Ramsey should have be continued until all possible interventions were exhausted, instead of being terminated after 12 minutes, which they claim is what his medical records show. These defendants, they argue, should have ignored any instructions to the contrary from family members, because they were distraught, and under such circumstances the standard of care required that their wishes be disregarded. They dispute defendants' assertions that Mr. Ramsey could not have been resuscitated, because the heart monitor was still showing "pulseless" electrical activity several minutes before resuscitation efforts were halted. They also opine that had, these deviations from the standard of care not occurred, Mr. Ramsey's life, more probably than not, could have been saved.

Plaintiffs also argue that defendant Stephens admitted at her deposition that she was an [*7]employee of defendant Delphi and was supervised by Frank Edwards, M.D.[FN6] At Dr. Edwards deposition, he admitted that he was "a type of partner" with Delphi and that he was Stephens's supervising physician.[FN7]

Defendants' two expert affidavits disagree on when Ernest Ramsey was triaged. Dr. Rocco states it was 9:41 p.m. and Dr. Whelan states it was 10:21 p.m.. The Court will agree with these experts that P.A. Stephens and Delphi were not responsible for whatever delays occurred prior to triage, as triage was the responsibility of the Reisman and Jones defendants. After triage, defendants' experts both opine and agree that Stephens did not have enough time to diagnose hyperkalemia, because blood test results were not available, or to treat hyperkalemia with medications or hemodialysis, and that the untreated hyperkalemia caused his heart to arrest. These experts also agree that his heart remained completely flaccid during resuscitation efforts, and that a continuation of any such efforts would have been futile. The Court concludes that their opinions are supported by medical evidence in the record, and therefore that these defendants have met their initial summary judgment burden.

Nevertheless, plaintiffs' experts have pointed out several issues of fact whether the conduct of these defendants deviated from the standard of care. They opine that epinephrine should have been administered after the cardiac arrest, and that the failure to do so was a departure from the standard of care defined by ACLS and Jones's policies and procedures. They also opine that P.A. Stephens should have contacted the supervising physician but did not. They further argue that ACLS guidelines required all possible interventions be exhausted before resuscitation efforts were terminated, and that P.A. Stephens failed to comply with these guidelines. They specifically reject the suggestion that Sandra Ramsey's statement that her husband would not want to be a "vegetable" was an adequate reason to discontinue resuscitation efforts after 12 minutes, noting that it was not, and could not, be determined that he would be a "vegetable." They further opine that the standard of care required that resuscitative efforts be continued if family members were distraught or wavered while deciding whether they should be continued.

Plaintiffs' experts have also adequately addressed the issue of causation. The emergency physician opines that had Mr. Ramsey been properly intubated and ACLS guidelines been followed, Mr. Ramsey would have been sufficiently oxygenated to survive. He also opines that had epinephrine been administered and had resuscitative efforts continued, more probably than not, Mr. Ramsey would have survived. He bases this opinion on the fact that the heart monitor showed electrical impulses [QRS complexes] at 11:34 p.m., four minutes before the code was discontinued at 11:38 p.m. For this reason, he disputes the opinion of defendants' experts that Mr. Ramsey's heart was "totally flaccid" at this time. He thus concludes the code was called off prematurely, causing Mr.. Ramsey to suffer untimely death and loss of chance for survival. These opinions are supported by facts in the medical record, and are not conclusory or speculative.

Even assuming, arguendo, that defendant Delphi met its summary judgment burden to [*8]show that it was not responsible for P.A. Stephens, her deposition testimony, as well as the deposition testimony of Dr. Edwards, raises issues of fact sufficient to deny Delphi's motion for summary judgment on plaintiffs' vicarious liability or inadequate supervision claims. Stephens testified that she was an employee of Delphi and was supervised by Frank Edwards, M.D. Edwards testified that he was a partner of Delphi and supervised Stephens. While Delphi asserts in its memorandum of law that Stephens was not its employee, Stephens's and Edwards's testimony raises factual issues whether Delphi was Stephen's employer and whether Delphi in conjunction with its partner Edwards had a duty to supervise Stephens.

EMTALA claims:

Plaintiffs' Amended Complaint alleges that both Stephens and Delphi violated EMTALA or regulations promulgated thereunder. However, these defendants have not addressed these allegations in their expert affidavits, and so they have not met their initial burden to obtain summary judgment.

Conclusion:

Accordingly, upon the foregoing authorities and for the foregoing reasons, it is hereby

ORDERED that defendant Reisman's motion for summary judgment on plaintiffs' malpractice or negligence claims is hereby denied; and it is further

ORDERED that defendant Reisman's motion for summary judgment on plaintiffs' EMTALA claims is hereby granted; and it is further

ORDERED that defendant Jones's motion for summary judgment on plaintiffs' vicarious liability claims for defendant Reisman's conduct is hereby denied; and it is further

ORDERED that defendant Jones's motion for summary judgment on plaintiffs' other malpractice, negligence or inadequate supervision claims is hereby granted; and it is further

ORDERED that defendant Jones's motion for summary judgment on plaintiffs' EMTALA claims under 42 U.S.C. 1395dd(a) is hereby denied; and it is further

ORDERED that defendant Jones's motion for summary judgment on plaintiffs' EMTALA claims under 42 U.S.C. 1395dd(b) is hereby granted; and it is further

ORDERED that defendants Stephens's and Delphi's motion for summary judgment is hereby denied.

This Decision shall also constitute the Order of this Court.

It is so ORDERED.

Dated: December 23, 2019

_________________________________________

Belmont NY

HONORABLE THOMAS P. BROWN

ACTING JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1:The experts' unredacted affidavits were submitted to the Court for in camera inspection [Carrasquillo v. Rosencrans, 208 AD2d 488 (2nd Dept. 1994), citing CPLR 3101(d)1(i)].

Footnote 2:See Examination Before Trial of Janet Reisman, R.N., p. 12, l 16-18.

Footnote 3:See Plaintiffs' Verified Bill of Particulars 1(U)

Footnote 4:2 U.S.C. 1395dd(b)

Footnote 5:42 U.S.C. 1395dd(a)

Footnote 6:See Examination Before Trial of Vicki Stephens, P.A. pp 19-27

Footnote 7:See Examination Before Trial of Frank Edwards, M.D. , p.9, l.11; p.11, l.20