Zongo v Gerber

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Zongo v Gerber 2020 NY Slip Op 34838(U) October 6, 2020 Supreme Court, Westchester County Docket Number: Index No. 61347/2017 Judge: Charles D. Wood 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 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX ....NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 To commence the statutory time time period for appeals as of of right right (CPLR (CPLR 5513[a]), 5513(a]), you are advised to serve a copy of of this order, with with notice of of entry, entry, upon all parties. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER --------------------------------------------------------------------x ---------------------------------------------------------------------J( ADJARATOU ADJARATOU ZONGO, ZONGO, As Administratrix AdministratriJ( of of the Estate Estate OfFATIMATA OfFATIMATA ZONGO, ZONGO, Deceased, Deceased, and ADJARATOU ADJARATOU ZONGO ZONGO Individually, Individually, Plaintiffs, Plaintiffs, -against- . -against- DECISION DECISION & ORDER ORDER Index IndeJ( No.: No.: 61347/2017 61347/2017 Seq Nos. Nos. 2,3,4,5 2,3,4,5 .. ', DMITRY DMITRY GERBER, GERBER, JOHN JOHN ILARIO, ILARIO, ZAREEN ZAREEN KHAN, KHAN, SHAHRAN SHAHRAN RAZMZAN, RAZMZAN, WESTCHESTER WESTCHESTER MEDICAL MEDICAL GROUP, GROUP, P.C., P.C., d/b/a d/b/a WESTMED, WESTMED, SOUTHERN SOUTHERN WESTCHESTER WESTCHESTER ·. OB/<;tYN OB/GYN ASSOCIATES, ASSOCIATES, LLP, and ST. JOHN'S JOHN'S RIVERSIDE RIVERSIDE HOSPITAL, HO SPITAL, .,. Defendants. Defendants. ------------------------- . ---------------------------------------x -------------------------------------------------------------------J( WOOD,J. WOOD,J. New. New. York York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers Numbers 82-210, 82-210, were read in connection connection with with the respective respective motions motions for summary summary judgment of Dmitry Dmitry Gerber, Gerber, judgment of John John Ilario, Hario, and Southern Southern Westchester Westchester OB/GYN OB/GYN Associates, Associates, LLP. ("OB/GYN") ("OB/GYN") (Seq (Seq #2); Zareen Zareen Khan Khan ~Seq (Seq #3); St. Johns Johns Riverside Riverside Hospital Hospital (Seq #4); and and an application application by Westchester Westchester Medical Medical Group, Group, P.C., P.C., d/b/a d/b/a Westmed, Westmed, for the court court to so order order a Stipulation Stipulation of of Discontinuance Discontinuance (Seq (Seq #5); as well as the court court having having heard heard oral argument argument by by counsel counsel in connection connection .~ith ••ith the instant instant motions, motions, on May May 21, 2020, 2020, all attending attending by Skype Skype or other other electronic electronic virtual virtual means, means, in accordance accordance with with the Court's Court's Administrativ~ Administrativ~ Orders. Orders. This This action action sounding sounding in medical medical malpractice malpractice and wrongful wrongful death death against against defendants, defendants, concerns concerns a 36 year year old plaintiff-decedent, plaintiff-decedent, Ms. Zongo, Zongo, who who died died on November 2015, at St. November 28, 2015, [* 1] 1 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 John's Riveri:ide Hospital, eleven days after after giving giving birth only child John's Riveri:ide Hospital, eleven birth to her her only child on November November 17, 2015. After After an autopsy autopsy was performed, performed, Ms. Zongo's cause of Zongo's cause of death death was was determined determined to be disseminated pneumitosis disseminated pneumitosis due to postpartum postpartum bacterial bacterial infection. infection. Now, foregoing, the motions motions are decided decided as follows: Now, based based upon upon the foregoing, follows: ·" judgment motion motion must must make make a "prima It is well-settled"that well-settled ·that a proponent proponent of of a summary summary judgment "prima showing of of entitlement entitlement to judgment of law, sufficient evidence evidence to judgment as a matter matter of law, tendering tendering sufficient facie showing demonstrate-the absence absence of of any material material issues of fact" (Alvarez (Alvarez v Prospect demonstrate·:lle issues of Prospect Hospital, Hospital, 68 NY2d NY2d 324 [1986]; [1986]; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership 320, 324 Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 686-687 [2d Dept Dept 2007]; Gallagher, 31 AD3d 686-687 2007]; see also Rea Rea v Gallagher, AD3d 731 [2d Dept Dept 2007]). 2007]). Failure Failure to make such such a prima prima facie facie showing showing requires denial of of the motion, sufficiency requires a denial motion, regardless regardless of of the sufficiency of the motion (Winegrad v New of motion papers papers (Winegrad New York York University University Medical Medical Center, Center, 64 NY2d NY2d 851, 853 [1986]; see Jakabovics Rosenberg. 49 AD3d AD3d 695 [2d Dept Dept 2008]; Menzel v Plotkin, Plotkin, Jakabovics v Rosenberg, 2008]; see also Menzel 202 AD2d 5;,8, 558-559 558-559 [2d Dept 1994]). Once the movant Dept 1994 ]). Once movant has has met met this this threshold threshold burden, burden, the AD2d 5.:.,8, opposing party existence of of triable of fact (see (see Zuckerman triable issues issues of Zuckerman v New New York, York, opposing party must must present present the existence 557, 562 [1980]; [1980]; see also Khan 49 NY2d NY2d 557, Khan v Nelson, Nelson, 68 AD3d AD3d 1062 [2d Dept Dept 2009]). 2009]). In deciding a motion summary judgment, court is "required "required to view evidence presented deciding motion for summary judgment, the court view the the evidence presented in the light light most most favorable favorable to the party opposing the motion party opposing motion and to draw draw every every reasonable reasonable inference submitted by the parties favor of proof submitted parties in favor of the opponent opponent to inference from the pleadings pleadings and the proof < AD3d 762, 767 [2d Dept v Tedlen the motion" motion" (Yelder (Yelder v Walters, Walters, 64 AD3d Dept 2009]; 2009]; see Nicklas Nicklas~ Tedlen Realty Realty 385, 386 [2d Dept 2003]). The court's function summary considering a summary Corp., 305 AD2d AD2d 385, Dept 2003]). The court's function in considering judgment resolve issues, issues, but determine if if any material material issues of fact exist exist judgment motion motion is not to resolve but to determine issues of (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d [1957]; Stukas Stukas v Streiter, Streiter, 83 (Sillman Twentieth Centuzy-Fox Film Corp., NY2d 395 [1957]; AD3d 18, 23 [2d Dept Dept 2011]). 2011]). AD3d 2 [* 2] 2 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 "To establish establish the liability liability of of a physician medical malpractice, malpractice, a plaintiff must prove prove "To physician for medical plaintiff must physician deviated deviated or departed departed from accepted accepted community community standards standards of of practice, practice, and that the physician plaintiff's injuries" that such such departure departure was a proximate proximate cause cause of of the plaintiffs injuries" (Stukas (Stukas v Streiter, Streiter, 83 AD3d 18,23 [2d Dept Dept 20111). 2011]). "A "A defendant defendant physician physician seeking seeking summary summary judgment must make make a AD3d judgment must prima facie spowing sD0wing that that there there was departure from good good and and accepted accepted medical medical practice practice or prima was no departure plaintiff was was not not injured injured thereby" thereby" (Iulo v Staten Staten Island Island University University Hospital, Hospital, 106 AD3d AD3d that the plaintiff 696,697 [2d Dept Dept 20131). 2013]). To successfully successfully oppose oppose a motion motion for summary summary judgment dismissing a 696,697 judgment dismissing cause of of action action sounding sounding in medical medical malpractice, malpractice, a plaintiff plaintiff must must submit submit a physician's affidavit physician's affidavit cause of merit merit attesting attesting to (depending (depending on the defendant's defendant's prima facie showing) showing) a departure departure from of prima facie accepted practice practice and/or and/or containing containing the attesting attesting doctor's doctor's opinion opinion that that the defendant's defendant's accepted omissions or departures departures were were a competent competent producing producing cause cause of of the the injury injury (Domaradzki (Domaradzki v Glen Glen omissions Cove Ob/Gyn Ob/Gvn Associates, Associates, 242 AD2d AD2d 282 [2d Dept Dept 1997]; 1997]; see Arkin Arkin v Resnick, Resnick, 68 AD3d AD3d Cove 692,694 [2d Dept Dept 20091). 2009]). Conclusory Conclusory or general general allegations allegations of of medical medical malpractice, malpractice, 692,694 "unsupported "unsupported by competent competent evidence evidence tending tending to establish establish the essential essential elements elements are insufficient insufficient defeat a motion motion for summary summary judgment" (Mendez v City City of of New York, 295 AD2d AD2d 487 487 (2d [2d New York. to defeat judgment" (Mendez 2002]; see Alvarez Alvarez v Prospect Prospect Hospital, Hospital, supra, supra, at 325). 325). Dept 2002]; ad'uition, the plaintiff required to raise a triable triable issue issue of of fact fact as to causation causation only in In ad'uition. plaintiff is required event that the the defendant defendant makes makes an independent independent prima facie showing showing that that any claimed claimed the event prima facie departure was not not a proximate proximate cause cause of of the plaintiff's plaintiffs injuries injuries (Stukas (Stukas v Streiter, Streiter, 83 AD3d AD3d 18). departure establish proximate proximate cause cause in a medical medical malpractice malpractice action, action, "a "a plaintiff plaintiff needs needs do no more more To establish than offer offer sufficient sufficient evidence evidence from which which a reasonable reasonable person might conclude conclude that it was more more than person might probable than than not not that that the the injury injury was was caused caused by the defendant" defendant" (Johnson (Johnson v Jamaica Jamaica Hospital Hospital probable [* 3] .1 " 3 of 15 Medical Center, Center, 21 AD3d AD3d 881, 883 [2d Dept Dept 2005] 2005] citing citing Holton Holton v Sprain Sprain Brook Brook Manor Manor . Medical FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 Nursing Home, 253 AD2d pt 19 98]; ~see Cl Nursing Home, 253 AD2d 85 8522 [2d [2d De Dept 1998J; Clarke Limone, 40 AD3d 571, 571-572 arke vv Lim one, 40 AD 3d 571, 571-572 [2d Dept 2007]). Since the rden of pro of do es no [2d Dept 2007]). Since the bu burden of proof does nott ask the plaintiff to eli eliminate every possible pla int iff to minate every possible cause of her injury, "th e pla int iff s ex pert nee cause of her injury, "the plaintiffs expert needd no nott qu quantitY the exact extent to which a antify the exact ex ten t to which a particular act or omission _de creased a patient's patient's cha particular act or omission decreased chances [of aa cu cure or increased her injuryJ, as nces [of re or increased her injury], as long as the jury can infer tha probable tha long as the jury can infer thatt it it wa wass probable thatt som somee dim diminution" the plaintiff's chance of inution" in in the pla int iff s chance of a better outcome (Jump v celle, 27 5 AD2d AD2d 34 a better outcome (Jump v Fa Facelle, 275 345, 3466 [2d [2d Dept ~ Flaherty v 5, 34 De pt 2000J; 2000]; see Flaherty v Fromberg. 46 AD3d 743, 74 5 [2d pt 20 07]; Ca Fromberg, 46 AD3d 743, 745 [2d De Dept 2007J; Calvin New York Group, P.C., 286 lvin v Ne w Yo rk Medical Medical Gr oup, P.C., 286 AD 2d 46 9,4470 70 [2d De AD2d 469, Dept 2001]). pt 20 01]). I ; I f I' I I Here, OB/GYN and their do ctors, inc luding Dr Here, OB/GYN and their doctors, including Drs. Gerber andd Ila lIario, care and s. Ge rber an rio, provided provided care and treatment to Ms. Zongo du ring he gnancy. On No treatment to Ms. Zongo during herr pre pregnancy. November 17,, 2015, at 4:25 PM, Dr Gerber, vember 17 2015, at 4:25 PM, Dr Gerber, as the delivering obstetrician livered Ms as the delivering obstetrician, , de delivered Ms.. Zo Zongo's infant vaginally. was a normal labor ng o's inf ant vag inally. It It wa s a normal labor and delivery, and Ms. Zong charged fro and delivery, and Ms. Zongoo wa wass dis discharged from St. Jo John's on No November 19,2015. m St. hn 's on vember 19, 2015. Four days after her discharg m St. Joh Four days after her dischargee fro from John's, Ms.. Zo Zongo to OB/GYN with n's , Ms ngo presented presented to OB/GYN with complaints of difficulty bre astfeeding, abd ominal cra complaints of difficulty breastfeeding, abdominal cramping, back feeling tired and mping, ba ck pain, pain, fee ling tired and occasional chills for a few prior to arr occasional chills for a few day dayss prior arriving OB/GYN. Zongo was attended by iving to OB /GYN. Ms. Ms. Zo ngo was attended by Maria Andreyko, (a physi cian ass istant), wh Maria Andreyko, (a physician assistant), whoo no noted thatt Ms. bloody vaginal ted tha Ms. Zongo Zongo had had bloody vaginal discharge with no odor an rus wa discharge with no odor andd he herr ute uterus wass enl enlarged, butt did did no nott ind indicate any finding of an arged, bu icate any finding of an infection. Following the ex am, Ms ngo wa infection. Following the exam, Ms.. Zo Zongo wass referred to her care physician, and referred to her primary primary car e physician, and informed to follow up in a co informed to follow couple of we weeks if nec necessary. uple of eks if essary. On November 28, 2015, proximately 12 On November 28, 2015, at at ap approximately 12:48 Ms.. Zo Zongo to the :48 AM., AM., Ms ngo presented presented to the Emergency llo om at St. Jo hn 's wi th aa ch ief co mpl?int of Emergency n.oom at St. John's with chief complaint of ch chest Thee record reflects that at est pain. pain. Th record reflects that at 12:57 AM., Ms. Zo ng o's blo od pressure pressure wa vated at 18 12:57 AM., Ms. Zongo's blood wass ele elevated 186/93. Shee had chest pain radiating to 6/93. Sh had ch est pain radiating to her left upper extremity, and pain wa _out of her left upper extremity, and he herr pain wass 8 out of 10. At 1:3 1:32 Ms Zongo was noted to be 2 A.M., A.M., Ms Zongo was noted to be I I " I I I I I r I I I I I I I , Ij 4' 4 [* 4] 4 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 in ventricular fibrillation, and she was was pulseless, and had seizure like activity. activity. ventricular fibrillation, pulseless, unresponsive unresponsive and had seizure Resuscitative efforts were were unsuccessful unsuccessful and terminated was when Ms. Ms. Zongo Zongo was Resuscitative efforts terminated at 3: 117 7 A.M. A.M. when pronounced dead. The The Autopsy determined that that the the cause cause of of death death was disseminated disseminated pronounced dead. Autopsy Report Report determined pneumatosis due to postpartum pneumatosis due postpartum bacterial bacterial infection. infection. Turning to O8/GYN, OB/GYN, and Drs. Gerber Gerber and llario's motion Seq Seq 2 for summary summary judgment, Ilario's motion judgment, Turning argue that established prima entitlement to judgment oflaw, through law, through .they argue that they they established prima facie entitlement judgment as a matter matter of submission of of competent competent medical and the Affidavits of Ors.· Drs. Gerber Gerber and Ilario, llario, the submission medical testimony, testimony, and Affidavits of establishing that doctors and and practice, deviate from from good and accepted accepted standards standards establishing that these these doctors practice, did not not deviate good and of care care in the the evaluation, evaluation, diagnosis, diagnosis, a~d and treatment treatment of of Ms. Zongo Zongo during during prenatal prenatal care, care, labor of labor and delivery, and post post delivery. delivery. delivery, The crux crux of of plaintiffs plaintiffs complaint complaint against against O8/GYN, OB/GYN, and and Drs. Gerber Gerber and and llario focuses The Ilario focuses office visit, allegedly failed failed to diagnose diagnose on the November November 23, 2015 2015 office visit, wherein wherein P.A. Andreyko Andreyko allegedly Zongo ~ith ~ith an infection. Gerber and Dr. llario attest that physician · infection. Drs. Gerber Ilario attest that Andreyko, Andreyko, a physician Ms. Zongo assistant, was an employee employee of ofOB/GYN, been for many On November O8/GYN, and had been many years. years. On November 23,2015, 23, 2015, assistant, Zongo was attended attended by Ms. Andreyko only five days before before Ms. Zongo's Zongo' s death, death, Ms. Zongo Andreyko at the offices of of O8/GYN. OB/GYN. On that that date, date, Andreyko that Ms. Zongo's abdominal and and pelvic Andreyko noted, noted, that Zongo's abdominal pelvic offices examination were and there indication that there was any infection, infection, or anything anything examination were normal normal and there was no indication that there was any other than than normal complaints. P.A. Andreyko Andreyko conclud~d concluded that the patient, was other normal postpartum postpartum complaints. that the patient, who who was breast feeding, was suffering from problems associated with engorgement as well breast feedin3, was suffering problems associated with breast breast engorgement well as complaints associated with lower back condition. She She recommended complaints associated with a pre-existing pre-existing lower back condition. recommended that that Ms. Zongo care physician OB/GYN in one if Zongo see her her primary primary care physician and that that she return return to OB/GYN one to two two weeks weeks if necessary. P.A. Andreyko's Andreyko's notes notes were signed the following following day by Dr. Razmzan, necessary. were signed Razmzan, who who was the physician supervising supervising her her patient visit. patient care for the November November 23 visit. physician 5 [* 5] 5 of 15 J) FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 These moving offer no affidavits from independent experts but These moving defendants defendants offer affidavits from independent experts but rely on affidavits own doctors Gerber and Ilario. Hario. Through Through his affidavit, I Dr. Gerber Gerber opines opines affidavits from their their own doctors Gerber his affidavit; that Ms. Zongo Zongo did an infection on November 23,2015, was seen seen by P.A. that did not have have aninfection November 23, 2015, when when she was reasonable degree degree of medical certainty certainty within of Andreyko. It is his opinion Andreyko. opinion ·within within a reasonable of medical within the field of / / obstetrics that every every applicable applicable standard standard of of care care was was observed observed by him obstetrics and gynecology gynecology that him and Dr. Hario, and by Maria Maria Andreyko and OB/GYN Ilario, Andreyko and OB/GYN.. only saw Ms. Zongo October 15, 2015, In fact, Dr. Hario Ilario only Zongo on two two occasions. occasions. On October 2015, Dr. Hario saw Ms. Zongo Zongo when complaints of of palpitations, accordingly, he palpitations, and accordingly, Ilario when she presented presented with with complaints referred her to a cardiologist cardiologist for further further evaluation. evaluation. Dr. Ilario Hario also conducted conducted a full prenatal referred prenatal examination at that that time time which revealed normal findings. Dr. Hario examined Ms. Zongo examination which revealed normal findings. Ilario again again examined Zongo October 19, 2015, 2015, and and conducted conducted a full prenatal examination. Nothing suggests on October prenatal examination. Nothing in the record record suggests that on these occasions, Dr. Ilario Hario violated violated the standard standard of of care care or was related to that these two two occasions, was in any way way related her death. Dr. Gerber obstetrician, and treated Gerber was was the delivering delivering obstetrician, treated Ms. Zongo Zongo during during her her pregnancy. Likewise, it carmot said that there is sufficient sufficient evidence evidence that pregnancy. Likewise, cannot be said that there that his his treatment treatment and Zongo'ss death, Gerber was was also also not involved care was a proximate proximate cause cause of of Ms. Zongo' death, as Dr. Gerber involved on November 2015, the date chest pains November 23, 2015, date that that Ms. Zongo Zongo visited visited their their practice practice for chest pains and other other ailments. ailments. In considering considering this record, court finds that Gerber and Hario have demonstrated record, the court that Drs. Gerber Ilario have demonstrated prima that their their care treatment was not the proximate cause of of Ms. Zongo' prima facie, that care and and treatment proximate cause Zongo'ssdeath, "death, as 'For of the instant summary judgment motions before court, the expert For the purposes purposes of instant summary judgment motions before the court, the expert opinions considered, , and have established that experts possesses opinions shall be considered have established that these these medical medical experts possesses the requishe credentials credentials and experience opinions within fields the requishe experience to provide provide opinions within their their respective respective fields and shall be given given the the appropriate appropriate weight weight by the court court...· 1 6 [* 6] 6 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 neither doctor involved in the care rendered neither doctor was involved ~endered on November November 23,2015. 23, 2015. In any event, event, plaintiffs plaintiffs now discontinued against Drs. Gerber Motion Seq. 2 is moot. have now discontinued as against Gerber and I1ario, Ilario, and and therefore, therefore, Motion moot. 22 Moving ·motion for summary judgment, the the court Moving on to consider consider OB/GYN's OB/GYN'smotion summary judgment, court finds that that I I moving defendants failed to demonstrate that P.A. P.A. Andreyko, OB/GYN's these moving defendants failed demonstrate prima prima facie that Andreyko, and OB/GYN's treatment, and care, and and the failure to diagnose diagnose the the bacterial infection wa~ was not not the treatment, the alleged alleged failure bacterial infection proximate cause of OB/GYN offered offered the medical Affidavits of Ms. Zongo's Zongo's death. death. OB/GYN medical record record and the Affidavits proximate cause of Drs. Gerber Gerber and I1ario, made conclusory conclusory allegations allegations without without competent competent support. support. ofDrs. Ilario, that that made Dr. Gerber's.opinion Gerber's opinion that have an infection infection on on November 23,2015, that Ms. Zongo Zongo did did not not have November 23, 2015, when seen by P.A. P .A. Andreyko insufficient support support in the record. record. Dr. Gerber Gerber also when she was seen Andreyko has insufficient explain how how Ms. Zongo's Zongo's signs signs and symptoms symptoms on on November of abdominal abdominal fails to explain November 23, 2015, 2015, of cramping, pelvic back pain, fatigue and chills were not signs of infectious process, cramping, pelvic pain, pain, back pain, fatigue chills - were not signs of an infectious process, failed to address address plaintiffs experts' opinions opinions that that they they were such signs signs of of infection. infection. and failed plaintiffs experts' were such These moving doctors' opinions more than than conclusory conclusory and These moving defendants' defendants' doctors' opinions offer offer nothing nothing more self-serving statements statements. ..Failure such showing showing requires denial of of the motion, Failure to make make such requires denial motion, regardless regardless self-serving of the sufficiency sufficiency of of the opposing (Winegrad v New York Univ. Ctr., 64 NY2d NY2d of opposing papers papers (Winegrad New York Univ. Med. Med. Ctr., 851,853 [1985]). [1985]). 851,853 Even court were were to consider consider plaintiffs' opposing papers, would lead lead to the same same Even if if this this court plaintiffs' opposing papers, it would result. In opposition opposition to t6 the instant including this offer four instant motions, motions, including this Motion Motion Seq 2, plaintiffs plaintiffs offer unnamed Expert Affidavits Board Certified Certified in Obstetrics Gynecology (Pl. (PI. unnamed Expert Affidavits from: physician physician Board Obstetrics and Gynecology Doc No. Infectious Disease Disease Doctor (PI Ex Ex 12, NYSCEF Doc No. an Infectious Doctor (Pl NYSCEF Doc Ex 11, NYSCEF NYSCEF Doc No. 167); ali 168); physician Internal Medicine Medicine and and Pulmonary Pulmonary Disease Disease (Pl (PI Ex 13, physician Board Board Certified Certified in Internal 'NVSCEF Doc 239 2NYSCEF Doc No. No. 239 [* 7] 7 of715 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 NYSCEF Doc No. 169); and a physician assistant in the field of Obstetrics and Gynecology (Pl Ex 14, NYSCEF Doc No. 170). Specifically, plaintiffs raised a triable issue of fact, through the Affirmations of Plaintiffs OB/GYN and Infectious Disease Expert, and Affidavit of Plaintiff's Expert Physician Assistant, as to whether OB/GYN, through the conduct of P.A. Andreyko, departed from the accepted standards of care in failing to do a complete and thorough physical exam, including 1 failing to check Ms. Zongo's temperature, failing to evaluate Ms. Zongo s uterus for tenderness· and size, failing to obtain a complete blood count, and failing to include an infectious process within their differential diagnosis on November 23, 2015. In light of the foregoing, OB/GYN failed to eliminate all triable issues of fact insofar as if the Conduct of P.A. Maria Andreyko, departed from the accepted standards of care. Question rd remains as. to whether Ms. Zongo presented with an infection on the November 23 visit, and whether OB/GYN, through the conduct of P.A. Maria Andreyko, departed from the accepted standards of care in failing to diagnose and treat Ms. Zongo postpartum infection. Turning next to Dr. Khan and St. John's motion for summary judgment, Seqs 3 and 4, plaintiff is claiming that during the approximately thirty (30) minutes that Dr. Khan (an emergency doctor at St. John's) was involved in the care of Ms. Zongo before she coded, Dr. Khan failed to diagnose a postpartum infection and disseminated pneumatosis, and that Dr. Khan should have administered antibiotics, IV fluids and vasopressors to Ms. Zongo. In support of her motion for summary judgment, Dr. Khan offers the expert affirmation of Thomas E. Klie, D.0., a physician licensed to practice medicine in New York State and Board certified in Emergency Medicine (NYSCEF Doc No. 118). Dr. Klie explains that Pneumatosis, which is gas in the bowel wall, is an extremely rare condition. Symptoms are [* 8] 8 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 generally gastroenterological gastroenterological in nature, nature, including including nausea nausea and vomiting. vomiting. Ms. Zongo Zongo had neither, neither, generally show any signs signs or symptoms symptoms of of an abdominal abdominal infection infection during during the approximately approximately nor did she ·show thirty-five (35) minutes minutes she was present present in the ER ER at St. John's John's She was was triaged triaged immediately immediately thirty-five and an EKG performed. EKG was was performed. Upon presentation patient's vital vital signs signs were: were: 98.7 98.7 (temperature); (temperature); 71 Upon presentation to the ER, the patient's (pulse rate); 18 (respiratory (respiratory rate); rate); I186/93 (blood pressure); pressure); and and 100% 100% (room (room air pulse pulse ox). (pulse 86/93 (blood Abdominal exam exam was was normal normal ). As stated stated in Dr. Klie's Klie's affirmation, affirmation, Dr. Khan Khan appropriately appropriately Abdominal reviewed the EKG EKG result result as soon soon as it was available, available, and t?en t\len ordered ordered the appropriate appropriate lab work. work. reviewed Klie asserts asserts that that based based on Ms .. Zongo's Zongo's clinical clinical picture picture at the the time, time, there there was no Dr. Klie indication to start start antibiotics antibiotics or IV fluids fluids or to order order blood blood cultures. cultures. There There was was no indication indication indication that Ms. Zongo Zongo was was suffering suffering from a postpartum postpartum infection. infection. According According to Dr. Klie, Klie, based based on the patient's chief chief complaint complaint of of chest chest pain, pain, and her her elevated elevated systolic systolic blood blood pressure pressure it was was patient's appropriate to await await the results results of of the lab work, work, keep keep the the patient patient on a cardiac cardiac monitor, monitor, appropriate administer oxygen, oxygen, and re-check re-check the patient's pressure. Although Although her blood blood pressure administer patient's blood blood pressure. pressure remained elevated, elevated, she was was in no distress distress and her her other other vital vital signs signs were were stable. stable. When When Dr. Khan Khan remained was on her patient's room her way to the patient's room to conduct conduct her her examination examination (at 1 I :32 a.m., a.m., approximately approximately minutes after after the patient patient arrived arrived at the ER), Ms. Zongo Zongo suddenly suddenly we_nt went into into VFib. VFib. Dr. Klie 30 minutes continues that that there there was was no way to predict this patient patient would would go into VFib VFib arrest; arrest; and there there continues predict that this indication of of tachycardia tachycardia (abnormally (abnormally rapid rapid heart heart rate), rate), dizziness, dizziness, nausea, nausea, shortness shortness of of was no indication breath of unconsciousness. unconsciousness. Dr. Klie Klie opines opines that that Dr. Khan Khan appropriately appropriately followed followed ACLS ACLS breath or loss of (Advanced Cardiovascular Cardiovascular Life Support) Support) protocol protocol for a patient VFib. During During the (Advanced patient in VFib. resuscitation effort, effort, the results results of of the patient's patient's lab work work came came back, back, revealing revealing no ·significant significant resuscitation abnormalities. Ms. Zongo Zongo suffered suffered an extremely extremely rapid rapid decompensation decompensation that that could could not have have abnormalities. 9 [* 9] 9 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 been Klie believes an the pastmartem .of disseminated been predicted. predicted. Dr. Klie believes that that based based on postmortem determinatian determination of disseminated pneumatasis secandary ta infectian, Ms. Zanga's already pre-determined pneumatosis secondary to bacterial bacterial infection, Zongo's fate was was already pre-determined by the time time she presented presented ta to the ER ER Taking inta consideration cansideratian the medical medical record recard and Dr. Klie's Klie's affirmation, affirmatian, Dr. Khan Taking into Khan has prima facie showing not negligent negligent in treating opined made a prima shawing that that she was nat treating Ms. Zongo. Zanga. Dr. Klie, Klie, .opined that there there was was na departure from fram accepted accepted practice Khan, and there na no deviatian deviation .or or departure practice by Dr. Khan, there is no evidence that anything Dr. Khan Khan did or .or failed failed ta da was the praximate cause of .of or .or a substantial substantial evidence that anything to do proximate cause factor plaintiffs decedent's factar in plaintiffs decedent's subsequent subsequent injuries. injuries. In support suppart of .of their their motion matian for far summary summary judgment, Jahn's offers .offers the opinion apinian of .of Dr. judgment, St. John's Mucciala, a physician certified in Obstetrics Obstetrics and Gynecology. Gynecalagy. He affirms affirms that that he is Gary Mucciolo, physician baard board certified familiar with standard of .of practice and' in particular, practice in the medical medical cammunity, community, and· particular, with with the familiar with the the stand.ard standard of .of care care relative relative to ta the management management of .of .obstetrical standard obstetrical and gynecolagical gynec.ological patients, patients, including including the management .of postpartum infectian, as it existed existed in or .or around around the year IS, including including postpartum infection, year 20 2015, management of Navember 2015. He is also alsa familiar familiar with with the standard standard of .of care care as it relates relates to ta the role of .of the November 2015. nursing staff relative relative ta their pastpartum With patients. patients. nursing staff to their postpartum interactian interaction with Dr; Mucciala that "on "an Navember decedent presented presented ta Dr: Mucciolo .opines opines that November 28, 2015, 2015, the the decedent to the Emergency Room Raam at SJRH SJRH with .overwhelming infection infectian and that there was was Emergency with an overwhelming that at that that time, time, there nathing that that could cauld have dane to ta prevent Therefore, the decedent's death was was nothing have been been done prevent her demise. demise. Therefore, decedent's death unavaidable" (NYSCEF (NYSCEF Dac unavoidable" Doc Na.l21). No.121). apinian that emplayees and staff staff of .of St. Jahn' fram good gaad and. that the employees John'ss did nat n~t deviate deviate from and It is his opinion accepted practice, were.the actians .or inactians of .of the employees emplayees and staff staff of .of St. John's Jahn's a accepted practice, nar nor were. the actions or inactions praximate cause of .of any injuries injuries suffered suffered by Ms. Zanga. apinian that nursing staff staff of .of Zongo. It is his opinion that the the nursing proximate cause [* 10] 10 of 15 () HI FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 St. John's John's acted acted within good and accepted practice in following the orders orders of of the the private private within good accepted practice following all of of the attending physician. attending physician. support of of their Farber, Board Board In further further support their motion, motion, St. John's John's offers offers the opinions opinions of of Bruce Bruce Farber, Certified in the subspecialty Infectious Diseases. opines that that "[i]n opinion, the Certified subspecialty of ofInfectious Diseases. Dr. Farber Farber opines "[i]n my opinion, ventricular fibrillation fibrillation arrest arrest was caused by the underlying identified in the autopsy autopsy ventricular was caused underlying infection infection as identified report". Plaintiff charges that lacking any sort sort of report". Plaintiff charges t.hat Dr. Farber's Farber's Affirmation Affirmation is lacking of reasoning reasoning to explain the discrepancies discrepancies in the St. John's John's record, record, specifically, specifically, that that St. John's explain John's record record inaccurately AM, Ms. Zongo inaccurately notes notes that that at 1I :09 AM, Zongo was not not hypertensive hypertensive despite despite her her blood blood pressure pressure being (NYSCEF Doc being 173/88 elevated elevated blood blood pressure pressure (NYSCEF Doc No.122). No.122). John's also offers offers the affirmation affirmation of of Paul Paul Antonecchia, licensed to· to. St. John's Antonecchia, a physician physician licensed practice State of of New currently Vice-President, practice medicine medicine in the State New York, York, who is currently Vice-President, Medical Medical Affairs Affairs and Chief Medical Officer, pertinent here, here, that became an Chief Medical Officer, at St. John's. John's. He states, states, as pertinent that Dr. Khan Khan became attending physician emergency room John's on August 10,2015. attending physician working working in the emergency room at St. John's August 10, 2015. opposition, plaintiffs their expert expert affirmations affirmations that John's departed In opposition, plaintiffs offer offer their that St. John's departed from the accepted render :treatment Zongo on accepted standards standards of of care care in failing failing to timely timely examine examine and render treatment to Ms. Zongo November 28,2015; failing to timely timely administer administer medication medication to lower lower Ms. Zongo's November 28, 2015; and in failing Zongo's blood blood pressure. timely administered medication, it is more pressure. Had Had Dr. Khan Khan timely administered medication, more likely likely than than not not that that Ms. Zongo's blood would have have been reduced, and and she would suffered from Zongo's blood pressure pressure would been ~educed, would not not had had suffered ventricular fibrillation, and her chances of survival would substantially increased. increased. ventricular fibrillation, her chances of survival would have have been been substantially (PI. Exhibit Exhibit 13). (Pl. Additionally, Plaintiff Expert opined Additionally, Plaintiffss Infectious Infectious Disease Disease Expert opined that: If front-line front-line antibiotics were timely timely administered Zongo and and her If antibiotics were ad,ninistered to Ms. Zongo her infection infection had been identified, diagnosed diagnosed and treated, would likely had been appropriately appropriately identified, treated, she would likely have have survived the infection and had had a full recovery. recovery. survived infection and (See Exhibit Exhibit 12, ,r24). '1[24). (See II 11 [* 11] 11 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 John's made Khan and Based on record, although moving defendantsts Dr. Khan and St John's made out out aa moving defendan d, although the·recor on the Based through raised issues plaintiffs raised prima facie cases cases of of entitleme entitlementnt to summary summary judgment, issues of of fact, through judgment , plaintiffs prima facie the case is the As is judgmen t. As their medical experts' affirmatio affirmations, sufficient t to preclude preclude summary summary judgment. case ns, sufficien medical experts' their the parties where the here, summary summary judgment "is not not appropria appropriatete in a medical medical malpracti malpracticece action action where parties judgmen t "is here, jury" by aa jury" resolved by adduce conflictin conflictingg medical medical expert expert opinions opinions ... ...such credibilityy can can only only be resolved such credibilit adduce AD3d 671, 2005] guoting (Eeinberg v,teit, v'feit, 23 AD3d AD3d 517, 517, 519 [2d Dept guoting Shields Shields v Baktidy, Baktidy, ·11 11 AD3d 671, Dept 2005] (Feinberg AD3d 714, er, 56 AD3d 672 [2d [2d Dept Dept 2004]; generally Darwick Paternoster, 714, 715 [2d Dept Dept 2008]; 2008]; Darwick v Paternost 2004]; see generally 672 Dept 2009]). AD3d 865 [2d Dept Adjetey York City City Health Health and Hospitals Hospitals Cor.p., Corp., 63 AD3d 2009]). The The New York Adjetey vv New thus, value, thus, opinion of experts are not conclusor conclusoryy or or without without evidentia evidentiaryry value, medical experts plaintiffs' medical the plaintiffs' of the opinion parties adduce summary judgment not appropria appropriatete here, where the the parties adduce conflictin conflictingg medical medical here, where judgmen t is not summary New es vv New jury (Barrocal resolved by a jury opinions and and raise raise credibilit credibilityy issues issues which only be resolved (Barrocales which can only opinions York Methodist 648, 649 649 [2d Dept Dept 2014]). There is, in essence, essence, a "battle "battle of of 2014]). There AD3d 648, Hosp., 122 AD3d Methodist Hosp., York the trier the experts" experts" for the ofthe trier of of fact. resolution of the resolution premised on of action Turning to OB/GYN OB/GYN defendan defendants' motion to dismiss dismiss the the cause cause of action premised on ts' motion Turning malpractice recover damages] lack of informed consent, to establish establish a cause cause of of action action [to recover damages] for malpractice informed consent, lack of the person providing that the based on on lack lack of of informed informed consent, consent, [a) [a] plaintiff must prove prove (1) (l) that the person providing the plaintiff must based of patient the patient inform. the failed to inform thereto and professional disclose alternatives and failed of alternatives thereto failed to disclose treatment failed nal treatment professio . that aa es, that the alternativ treatment, and reasonably foreseeablele risks associatedd with the treatment, and the alternatives, with the risks associate reasonably foreseeab that aa nces, (2) that the same reasonable practitionerer w~uld would have disclosed disclosed in the same circumsta circumstances, medical practition reasonable medical he undergon e the would not have reasonablyy prudent prudent patient in the same position have undergone the treatmen treatment t if if he position would the same patient in reasonabl proximate cause or she she had had been informed, , and (3) that lack of of informed informed consent consent is a proximate cause that the lack been fully informed or Dept AD3d 669, Centers. 114 AD3d of the the injury" injury" (Walker (Walker v Saint Saint Vincent Catholic Med. Centers, 669, 670 670 [2d Dept Vincent Catholic of ates aa lack 2014]). The court court agrees agrees with defendantsts that that the record record in this this case case demonstr demonstrates lack these defendan with these 2014J). The 12 [* 12] 12 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 of specificity specificity on the part of plaintiffs claims of of lack of informed informed consent; consent; it is unclear unclear of part of plaintiffs in their their claims lack of how of informed consent could rendered by Drs. llario informed consent could be applied applied to the treatment treatment rendered Ilario or how a theory theory of Gerber, of the staff staff at Southern Southern Westchester Westchester OB/GYN. OB/GYN. In opposition, opposition, plaintiffs plaintiffs fail to Gerber, or to any of raise a triable triable issue issue of of fact. Accordingly, Accordingly, the cause cause of consent is dismissed. of action action for informed informed consent dismissed. raise . . Likewise, to the that an informed informed consent of action action is being being maintained maintained Likewise, the extent extent that consent cause cause of demonstrated a prima prima facie entitlement cause of of action. against St. John's, against John's, it has has demonstrated entitlement to dismiss dismiss this this cause action. That claim should should be dismissed dismissed because of the hospital hospital responsibility or the the duty duty of That claim because it was not the responsibility , ' to obtain obtain the patient's informed consent consent when when Ms. Zongo treated by Dr. Gerber Gerber (Tomeo (Tomeo v. patient's informed Zongo was treated Beccia, 127 AD 3d 102 [2d Dept Where a private her patient Beccia, Dept 2015]). 2015]). Where private physician physician attends attends his or her patient at a hospital, hospital, it is the physician's physician's duty to obtain obtain the the patient's patient's informed informed consent. consent. Additionally Additionally "[t]he right of action action to recover medical ... malpractice malpractice based of informed informed consent consent "[t]he tight of recover for medical based on a lack lack of cases involving involving either treatment, procedure procedure or surgery, is limited limited to those those cases either (a) non-emergency non-emergency treatment, surgery, or which involved involved invasion disruption of of the the integrity of the body" (b) a diagnostic diagnostic procedure procedure which invasion or disruption integrity of body".. (Sample v. Levada. 466-67 [2d Dept Dept 2004]). (Sample Levada, 8 AD3d AD3d 465, 465, 466-67 2004]). Plaintiffs having failed failed to raise raise triable issues of of fact, this cause of of action action is dismissed this cause dismissed as Plaintiffs having triable issues to St. John's. John's. Lastly, Order pursuant CPLR 3217(b), 3217(b), so Ordering Ordering the Lastly, as for Seq 5, for an Order pursuant to CPLR Stipulation of of Discontinuance defendant WESTCHESTER MEDICAL Discontinuance with with prejudice prejudice as to defendant WESTCHESTER MEDICAL Stipulation GROUP, P.C., P.C., d/b/a d/b/a WESTMED; WESTMED; amending MEDICAL GROUP, amending the the caption caption to delete delete WESTCHESTER WESTCHESTER MEDICAL GROUP, P.C., d/b/a September 8, 2020. 2020. GROUP, P.C., d/b/a WESTMED; WESTMED; was so ordered ordered by the the court court on September The court considered the remainder of of the factual factual and legal contentions contentions of of the and legal court has considered the remainder parties extent not not specifically specifically addressed, addressed, finds finds them rendered parties and to the extent them to be without without merit merit or or rendered moot other aspects aspects of of this this decision. decision. This constitutes the order of of the court. court. This constitutes the decision decision and and order moot by other [* 13] 13 of 15 1 'l FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 Accordingly, based stated reasons, reasons, it is hereby Accordingly, based upon upon the the stated hereby ORDERED, that motion for summary summary judgment (Seq 2) of Dmitry Gerber, Gerber, John John of Dmitry ORDERED, that the motion judgment (Seq llario action against against Dmitry John Ilario, llario, moot, as plaintiffs plaintiffs have have discontinued discontinued this this action Dmitry Gerber Gerber and John Ilario is moot, and denied denied as to Sout~em Southern _Westchester Westchester OB/GYN LLP; and it is OB/GYN Associates, Associates, LLP; with prejudice; prejudice; and further further ORDERED, that that motion motion for.summary for summary judgment ZareenKhan (Seq (Seq 3) is denied; ORDERED, judgment by ZareenKhan denied; and further it is further ORDERED, that that the motion summary judgment John's Riverside Riverside Hospital Hospital ORDERED, motion for summary judgment by St. John's (Seq 4) is granted granted to the extent that consent is dismissed dismissed as cause of of action action for informed informed consent (Seq the extent that any cause against St John's, John's, and the motion otherwise; and it is further further against motion is denied denied otherwise; ORDERED, that the motion Westchester Medical (Seq ORDERED, that the motion by Westchester Medical Group, Group, P.C., P.C., d/b/a d/b/a WestMed WestMed (Seq the Stipulation of Discontinuance, Discontinuance, was ordered by the 5) is moot, moot, as the Stipulation of was so ordered the court court on September September 8, 2020 date, and the caption caption of of this action action shall delete WESTCHESTER MEDICAL MEDICAL delete reference reference to WESTCHESTER 2020 GROUP, P.C., WESTMED;'(and to Dmitry Dmitry Gerber llario- Seq Seq 2), and shall P.C'., d/b/a d/b/a WESTMED;.(and Gerber and John John IlarioGROUP, follows: .,now now read as follows: SUPREME SUPREME COURT COURT OF OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER __________________~ ---------------x ------------------·--------------------------------------------------x ADJARATOU ZONGO, As Administratrix of the the Estate ADJARATOU ZONGO, Administratrix of Estate OfFATIMATA ZONGO, Deceased, and ADJARATOU OfFATIMATA ZONGO, Deceased, ADJARATOU ZONGO Individually, ZONGO Individually, ·, Plaintiffs, Plaintiffs, -against-against- ZAREEN KHAN, SHAHRAM RAZMZAN, SOUTHERN WESTCHESTER OB/GYN ASSOCIATES, LLP, and ST. JOHN 1S RIVERSIDE HOSPITAL, Defendants. -------------------------------------------------------------------x 14 [* 14] 14 of 15 FILED: WESTCHESTER COUNTY CLERK 10/15/2020 11:13 AM NYSCEF DOC. NO. 258 INDEX NO. 61347/2017 RECEIVED NYSCEF: 10/07/2020 ;and it is further further ORDERED, that remaining parties directed to appear ORDERED, that the the remaining parties are directed appear in Courtroom Courtroom 1600, the Settlement Conference Westchester County Courthouse, 111 III Dr. Martin Settlement Conference Part, Part, at the Westchester County Courthouse, Martin Luther Luther King Jr. Blvd., Plains, New New York York 10601 date and time to be determined determined by that that Part. King Blvd., White White Plains, 1060 I at a date imd time Clerk st.all sl:all mark records accordingly. The Clerk mark his records accordingly. October 6, 2020 2020 Dated: October White Plains, New New York York White Plains, .WOOD Parties by NYSCEF To: All Parties NYSCEF 'C 15 [* 15] 15 of 15

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