Seliger v Wagner

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Seliger v Wagner 2021 NY Slip Op 33551(U) June 1, 2021 Supreme Court, Suffolk County Docket Number: Index No. 621243/2018 Judge: Joseph A. Santorelli 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. --------- ----------,------------------------------ ------ -NO. ----r=-=========~=== ==~====:!!!!!!!!!!!!::= =o!!!!!!!!!!!!!!!===:.... -==r----" -···· INDEX 621243/2018 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM , NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 06/01/2021 ' ORDER SHORT FORM ORDER SHORT FORM 621243/2018 202000837MM YORK NEW YORK SUPREME COURT STATE OF NEW COURT - STATE SUPREME COUNTY SUFFOLK COUNTY LA.S. PART 10 - SUFFOLK I.A.S. PART PRESENT: PRESENT: MOTION DATE 2/25/21 (002) MOTION DATE 2/25/21 (002) MOTION (003) MOTION DATE DATE 2/25/21 2/25/21 (003) (004) DATE 3/25/21 3/25/21 (004) MOTION DATE MOTION ADJ.DATE 4/8/21 ADJ. DATE 4/8/21 002 MD. Mot. Seq. # 002 Mot. Seq.# # 003 MotD Mot. Mot. Seq. # MotD MG Mot. Seq. # 004 Mot. 004 MG Hon. JOSEPH SANTORELLI -"N~T=O=RE~L=L"--I_ A"-.=SA' """'H-"--"--'A. Hon. -"-'JO=S=E=P' Court the Supreme Justice of the Supreme Court Justice of ---------------------------------------------------------------J( ---------------------------------------------------------------X KRYSTA SELIGER SELIGER and and JORDAN JORDAN SELIGER, SELIGER, KRYSTA Plaintiffs, Plaintiffs, - againstagainst - JOHN WAGNER, JOHN WAGNER, M.D., JOHN WAGNER, M.D., JOHN WAGNER, M.D., PLLC, WGM WGM OBSTETRICS OBSTETRICS AND AND M.D., PLLC, M.D., KIP BODI, GYNECOLOGY, P.C., KIP L. BODI, M.D., P.C., GYNECOLOGY, PLLC, F ACS, PLLC, PHYSICIANS, FACS, BODI, PHYSICIANS, L. BODI, AMANDA HILL, P.A., HUNTINGTON HUNTINGTON P.A., HILL, AMANDA HOSPITAL NORTHWELL ASSOCIATION, NORTHWELL HOSPITAL ASSOCIATION, HEALTH, INC., HEALTH, INC., DUFFY & DUFFY DUFFY DUFFY Plaintiffs Attorney Attorney for Plaintiffs 1370 Plaza RXR Plaza 70 RJ(R 13 Floor West 13th Floor Tower, 13th West Tower, 11556 York Uniondale, New York 11556 Uniondale, New LEVERAGE & FUREY, FUREY, LEVERAGE FUREY, FUREY, P.C. DARLINGTON, DARLINGTON, P.C. M.D., Wagner, M.D., John Wagner, Attorney Defendants John Attorney for Defendants Obstetrics John M.D., PLLC, WGM Obstetrics PLLC, WGM Wagner, M.D., John Wagner, P.C. and Gynecology, Gynecology, P.C. and 600 Front Street Front Street York 11550 New Hempstead, 11550 Hempstead, New ,,,.. York rBACH, LLP HEIDELL, MURPHY & BACH, PITTONI, MURPHY HEIDELL, PITTONI, Bodi, M.D, Kip L. Bodi, Attorney M.D, Defendants Kip Attorney for Defendants PLLC, F ACS, PLLC, Kip Physicians, FACS, Bodi, Physicians, Kip M. Bodi, Hospital Amanda Huntington Hospital P.A., Huntington Hill, P.A., Amanda Hill, Health, Inc. Association, Northwell Health, and Northwell Association, and 1050 Suite 408 A venue, Suite Franklin Avenue, I 050 Franklin Garden 11530 York 11530 New York _City, New Garden .City, Defendants. Defendants. "' . ---------------------------------------------------------------J( ------------------------------X --------------------------------. Cause and Show Cause Order to Show Motion/ Order of Motion/ Notice of Upon judgment : Notice summary judgment: motions for summary these motions read on these papers read following papers the following Upon the Gynecology, and Obstetrics WGM and PLLC, M.D., supporting papers filed by defendants John Wagner, M.D., John Wagner, M.D., PLLC, and WGM Obstetrics and Gynecology, Wagner, supporting papers filed by defendants John Wagner. M.D., John Obstetric and WGM Obstetric PLLC, and Wagner, M.D., P.C., January 27, 27,2021; filed by defendants John John Wagner, M.D., PLLC, and WGM M.D., John Wagner, M.D., John Wagner, by defendants 2021: filed P.C., on January [* 1] 1 of 10 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 INDEX NO. 621243/2018 RECEIVED NYSCEF: 06/01/2021 Seliger v Wagner Wagner Seliger Index No. 621243/2018 621243/2018 Index Page 2 Gynecology, P.C., PoC., on January January 27. 27, 2021; Gynecology, 202 l: filed filed by defendants defendants Kip L. Bodi, Bodi. MoD., M.D .• Amanda Amanda HilI, Hill, P.A., P.A .• Huntington Huntington Hospital Hospital Association, and NorthweII Inc., on January _; Answering Association, Northwell Health, Health, Inc., January 29,2021 29, 2021 ; Notice Notice of of Cross Cross Motion Motion and supporting supporting papers papers_; Answering Affidavits and supporting filed by March 25, 202 2021I ; Replying Replying Affidavits Affidavits and and supporting supporting papers papers filed filed by by Affidavits supporting papers papers filed by plaintiffs, plaintiffs, on March defendants John John Wagner, Wagner, M.D., MoD., John John Wagner, defendants Wagner, MoD., M.D., PLLC, PLLC, and and WGM WGM Obstetrics Obstetrics and and Gynecology, Gynecology, P.C., P.C., on April April 6, 2021 ; Other _; Other_; it is ORDERED that that the ORDERED the motion motion (#002) (#002) by defendants defendants John John Wagner, Wagner, M.D., M.D., John John Wagner, Wagner, M.D" M.D., PLLC, and WGM Obstetrics and Gynecology, Gynecology, P.C., PLLC, WGM Obstetrics P.C., the motion motion (#003) (#003) by defendants defendants John John Wagner, Wagner, M.D" John John Wagner, Wagner, M.D., M.D., M.D., PLLC, PLLC, and WGM WGM Obstetrics Obstetrics and Gynecology, Gynecology, P.C., P.C., and and the motion motion (#004) (#004) defendants Kip L. Bodi, Bodi, M.D., M.D., Amanda Amanda Hill, Hill, P.A., P.A., Huntington Huntington Hospital Hospital Association, Association, and and Northwell Northwell by defendants Health, Inc., are consolidated consolidated for the purposes Health, purposes of of this this determination; determination; and and it is further further ORDERED that that the motion motion (#002) ORDERED (#002) by defendants defendants John John Wagner, Wagner, M.D., M.D., John John Wagner, Wagner, M.D., M.D., PLLC, and WGM Obstetrics and Gynecology, Gynecology, P.C., PLLC, WGM Obstetrics P.C., for summary summary judgment judgment dismissing dismissing the complaint complaint (#002), which which was superceded superceded by their moot, (#002), their subsequent subsequent motion motion for summary summary judgment, judgment, is denied, denied, as moot, further and it is further ORDERED that the motion (#003) (#003) by defendants defendants John John Wagner, Wagner, M.D., M.D., John John Wagner, Wagner, M.D., M.D., ORDERED that the motion PLLC, and WGM WGM Obstetrics Obstetrics and .C., for summary PLLC, and Gynecology, Gynecology, P P.C., summary judgment judgment dismissing dismissing the complaint complaint as asserted against against them them is granted granted in part, asserted part, and denied denied in part. ORDERED that that the unopposed ORDERED unopposed motion motion (#004) (#004) by defendants defendants Kip Kip L. Bodi, Bodi, M.D., M.D., Amanda Amanda Hill, P.A., Huntington Huntington Hospital Association, and Northwell P.A., Hospital Association, Northwell Health, Health, Inc., is granted. granted. medical malpractice malpractice action recover damages damages for injuries injuries allegedly allegedly arising arising This is a medical action brought brought to recover treatment of of plaintiff plaintiff Krysta Krysta Seliger Seliger by defendants defendants John John Wagner, Wagner, M.D., M.D., John John Wagner Wagner M.D., M.D., from the treatment PLLC, WGM WGM Obstetrics Obstetrics and Bodi, M.D., M.D., Amanda Amanda Hill, Hill, P.A., P.A., PLLC, and Gynecology, Gynecology, P.c. P.C. (WGM), (WGM), Kip L. Bodi, Huntington Hospital Hospital Association Association (Huntington Huntington (Huntington Hospital), Hospital), and Northwell Northwell Health, Health, Inc. Plaintiff Plaintiff alleges, alleges, inter alia, that inter that Dr. Wagner Wagner negligently negligently performed performed a total total hysterectomy, hysterectomy, causing causing injury injury to her left ureter, ureter, failed to appreciate appreciate the and that he failed the injury injury intraoperatively. intraoperatively. Plaintiff Plaintiff further further alleges alleges that that Dr. Bodi Bodi did not appreciate the injury injury to her her ureters appreciate ureters during during his treatment. treatment. Plaintiff Plaintiff asserts asserts causes causes of of action action sounding sounding in medical hiring, and and lack lack of of informed informed consent. consent. Plaintiffs Plaintiffs husband, husband, Jordan Jordan Seliger, medical malpractice, malpractice, negligent negligent hiring, Seliger, derivatively for loss of services. sues derivatively loss of services. subject to some some dispute, dispute, can The facts, subject can be summarized summarized as follows: follows: Plaintiff Plaintiff was was a 37-year-old 37-year-old woman with with a history history of of uterine uterine fibroids, fibroids, which which were were confirmed confirmed by a CT scan scan on May May 117, 7, 2017. 201 7. woman Plaintiff was seeing seeing Dr. Joseph Plaintiff Joseph Koka Koka as her gynecologist, gynecologist, who who recommended recommended a hysterectomy hysterectomy for the treatment of of her fibroids. Plaintiff desired fibroids. Plaintiff desired to have have an abdominoplasty abdominoplasty procedure procedure at the same same time time as a treatment hysterectomy, which which was to be performed performed at Huntington Huntington Hospital, Hospital, by her her plastic plastic surgeon, surgeon, Dr. Ian hysterectomy, Bourhill. However, However, Dr. Koka Bourhill. Koka did did not have have privileges privileges at Hungtinton Hungtinton Hospital, Hospital, and and plaintiff plaintiff was was referred referred Wagner for the hysterectomy hysterectomy procedure. 13,2017, to Dr. Wagner procedure. On December December 13, 2017, plaintiff plaintiff presented presented to Dr. Wagner and WGM WGM for an initial initial consultation. consultation. Dr. Wagner Wagner Wagner performed performed a physical physical examination, examination, and obtained plaintiff's plaintiffs medical obtained medical and surgical surgical history. history. Dr. Wagner Wagner testified testified that that he observed observed plaintiffs plaintiff's uterus uterus to be 16 weeks weeks in size, size, and and that he explained the options for treatment. Dr. Wagner testified that due to that explained options treatment. Wagner testified that of her uterus, uterus, plaintiff plaintiff was the size of was not a candidate candidate for IUD, birth birth control, control, or ablation ablation therapies therapies for treatment. He testified testified that treatment. that he explained explained the options options of of hysterectomy, hysterectomy, including including total total versus versus [* 2] 2 of 10 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 INDEX NO. 621243/2018 RECEIVED NYSCEF: 06/01/2021 Seliger Wagner Seliger v Wagner Index Index No. 621243/2018 621243/2018 Page 3 supracervical, laparoscopic, and whether whether to remove fallopian tubes tubes and/or supracervical, open open verus verus laparoscopic, remove her fallopian and/or ovaries ovaries to each procedure. procedure. Dr. reduce her cancer also testified testified that that he discussed benefits of reduce cancer risk. risk. He also discussed the risks risks and benefits of each Wagner testified that that after plan was laparoscopic supracervical Wagner testified after their their discussion, discussion, the plan was for a laparoscopic supracervical hysterectomy hysterectomy and salpingectomy. salpingectomy. On December December 28, 2017, plaintiff plaintiff called Wagner to ask On January 28,2017, called Dr. Wagner ask additional additional questions. questions. On January 8, 2018, again called called Dr. Wagner Wagner to request request that that her hysterectomy hysterectomy be performed open 2018, plaintiff plaintiff again performed as an open procedure, rather than laparoscopically, laparoscopically, so that perform an abdominoplasty procedure, rather than that Dr. Bourhill Bourhill could could perform abdominoplasty at the same time. Dr. Wagner Wagner testified testified that risks of procedure, and that he further further discussed discussed the risks of an open open procedure, blood loss, loss, as she would would refuse blood specifically patient about specifically counseled counseled the patient about an increased increased risk of of blood refuse blood transfusions due to her religion. plan now now called Bourhill to act as transfusions religion. Dr. Wagner Wagner testified testified that that the plan called for Dr. Bourhill surgeon, and that would do an intraoperative intraoperative consultation the primary primary surgeon, that he would consultation to perform perform the hysterectomy hysterectomy and bilateral bilateral self-injectomy, that Dr. Bourhill Bourhill would would be responsible responsible for the pre-operative self-injectomy, and that pre-operative work-up work-up for plaintiff. Dr. Wagner Wagner testified that he requested requested a preoperative preoperative consultation with plaintiff. plaintiff. testified that consultation with plaintiff. On January plaintiff testified that she underwent Huntington January 16, 2018, 2018, plaintiff testified that underwent presurgical presurgical testing testing at Huntington Hospital. 2018, plaintiff plaintiff met with Dr. Wagner Wagner for a final preoperative preoperative visit. Hospital. On January January 24, 24,2018, met with visit. Dr. Wagner Wagner testified that he obtained plaintiffss formal that she signed forms, and that testified that obtained plaintiff formal informed informed consent, consent, that signed consent consent forms, that all preoperative testing Wagner testified discussed specific risks, preoperative testing was was completed. completed. Dr. Wagner testified that that he discussed specific surgical surgical risks, including injury blood vessels, vessels, bowel, ureters, and bladder, including injury to blood bowel, ureters, bladder, and that that he arranged arranged for a cell-saver cell-saver to be plaintiff would refuse blood Wagner further that in the operating operating room, room, as plaintiff would refuse blood transfusions. transfusions. Dr. Wagner further testified testified that postoperative team. postoperative care would would be deferred deferred to Dr. Bourhill' Bourhill' ssteam. On January 20 I 8, plaintiff Huntington January 26, 2018, plaintiff presented presented to the Ambulatory Ambulatory Surgery Surgery Center Center at Huntington Hospital. practice for Dr. Bourhill Hospital. Dr. Wagner Wagner testified testified that that it was was custom custom and practice Bourhill to begin begin the surgery surgery by exposing where Dr. Wagner Wagner had to visualize perform the hysterectomy. exposing the abdomen abdomen to where visualize to perform hysterectomy. Dr. Wagner Wagner testified that he was called in to the procedure, procedure, and was assisted who had been testified that was called assisted by Ms. Hill, Hill, who had already already been present and assisting that he encountered multiple adhesions present assisting Dr. Bourhill. Bourhill. Dr. Wagner Wagner testified testified that encountered multiple adhesions in plaintiff abdomen, and that that he spent spent approximately approximately 20 to 25 minutes minutes performing adhesiolysis. Dr. plaintiffss abdomen, performing adhesiolysis. Wagner testified that he found fibroid, as well as a large large cervical cervical fibroid fibroid and a large large vaginal Wagner testified that found a uterine uterine fibroid, vaginal cervix and vaginal fibroid, and and that fibroid. He further further testified testified that that he removed removed the uterus, uterus, cervix vaginal fibroid, that he traced traced plaintiff ureters down down to the the cardinal cardinal ligament. testified that dissected the the ureters ureters to clear clear them them plaintiffss ureters ligament. He testified that he dissected operative field. Dr. Wagner Wagner testified testified that after after he completed completed his procedure, closed the away from the operative procedure, he closed turned the case case back back over over to Dr. Bourhill. Bourhill. Dr. Wagner Wagner further further testified testified that that Dr. Bourhill fascia, and turned Bourhill would manage plaintiffs care, as the abdominoplasty abdominoplasty would would require require more more analgesic analgesic care would manage plaintiffs postoperative postoperative care, incision management, management, and and he therefore therefore deferred deferred to the plastic plastic surgery surgery team. team. On January January 27, 27,2018, and incision 2018, plaintiff discharged home. home. On January January 29, 29,2018, Wagner testified testified that that he called called plaintiff plaintiff was discharged 2018, Dr. Wagner plaintiff to review the surgery, surgery, and and on January January 31, 2018, 2018, he called called her her to review review pathology reports. review pathology reports. February 4, 4,2018, emergency department department of of Huntington Huntington Hospital Hospital On February 2018, plaintiff plaintiff presented presented to the emergency with complaints complaints of of constipation, constipation, nausea, nausea, and pain.in CT scan scan of of her abdomen abdomen and with pain.in her back back and flank. A CT pelvis which showed showed a distal distal left ureteral ureteral obstruction, obstruction, which which was was causing causing mild mild left pelvis was performed, performed, which hydroureteronephrosis. Plaintiff Plaintiff was was admitted, admitted, and urology and gynecology gynecology were were called called to consult. consult. On hydroureteronephrosis. urology and February 5, 2018, 2018, Dr. Wagner Wagner saw saw plaintiff hospital. He testified testified that that he believed was "very "very February plaintiff in the hospital. believed it was [* 3] 3 of 10 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 INDEX NO. 621243/2018 RECEIVED NYSCEF: 06/01/2021 Seliger v Wagner Wagner Seliger Index 621243/2018 Index No. 621243/2018 Page4 Page 4 was no free there was prior day, as there the prior unlikely" scan from from the upon the CT scan based upon tear, based ureteral tear, was a ureteral there was that there unlikely" that possible a for fluid in her abdomen abdomen and no leakage leakage of of dye. Plaintiff Plaintiff was was started started on antibiotic antibiotic therapy therapy possible fluid evaluated Bodi Dr. 2018, 6, February On cellulitis. urinary tract infection possible low-grade pelvic cellulitis. February 2018, Bodi evaluated pelvic low-grade possible or infection urinary tract stricture a had plaintiff had stricture of believed plaintiff Bodi believed plaintiff as the on-call of Hospital. Dr. Bodi Huntington Hospital. urologist for Huntington on-call urologist plaintiff ureter, due to scarring. scarring. He performed performed a physical physical evaluation evaluation and noted noted that that plaintiff's plaintiffs bloodwork bloodwork was the ureter, ureteral stricture. within normal limits. Dr. Bodi's Bodi' s assessment assessment was was hydronephrosis, hydronephrosis, with with ureteral stricture. Plaintiff Plaintiff normal limits. all within had Plaintiff had Bodi. Plaintiff and Dr. Bodi. Bourhill, and Wagner, Dr. Bourhill, was discharged, follow-up with with Dr. Wagner, instruction to follow-up with instruction discharged, with further contact contact with with Dr. Bodi Bodi or Dr. Wagner. Wagner. no further left but left Hospital, but Huntington Hospital, room of On February 11,2018, plaintiffretumed emergency room of Huntington returned to the emergency 2018, plaintiff February 11, without being being seen seen by a physician. physician. She She then then presented presented to the emergency emergency department department of of Winthrop Winthrop without tear. ureteral left a with diagnosed University Hospital. Plaintiff was ultimately diagnosed with left ureteral tear. ultimately University Hospital. Plaintiff was Dr. Wagner Wagner and and WGM WGM now now move move for summary summary judgment dismissing the the complaint complaint as asserted asserted judgment dismissing the applicable against them, arguing that Wagner did not deviate or depart depart from from the applicable standard standard of of care care in not deviate that Dr. Wagner them, arguing against the there was his surgical surgical and post-operative post-operative care care of of plaintiff, plaintiff, or, that if there was a deviation deviation or departure departure from from the that if also They injuries. applicable standard standard of of care, care, it was was not not the proximate proximate cause cause of of plaintiff's plaintiff s alleged alleged injuries. They also applicable hysterectomy the hysterectomy prior consent informed argue that Wagner properly obtained plaintiff s informed consent prior to the plaintiffs obtained properly Wagner Dr. that argue affirmation the alia, procedure. In support support of of their their motion, motion, Dr. Wagner Wagner and and WGM submit, inter inter alia, affirmation of of WGM submit, procedure. Robert Berg, Berg, M.D., M.D., transcripts transcripts of of the the deposition deposition testimony testimony of of plaintiff plaintiff and and Dr. Wagner, Wagner, plaintiffs plaintiffs Robert records from medical records uncertified medical plaintiff's uncertified certified medical from St. Joseph's Joseph's Hospital, Hospital, and and plaintiffs from records from medical records certified Plainiffs Hospital. Plainiffs WGM, Dr. Gershbaum, Gershbaum, Dr. Edelman, Edelman, Huntington Huntington Hospital, Hospital, and Withrop Withrop University University Hospital. WGM, oppose the motion, motion, arguing, arguing, among among other other things, things, that that triable triable issues issues of of fact exist exist with with respect respect to whether whether oppose those deviations whether those departed from from accepted accepted standards standards of of care, care, and and whether deviations caused caused WGM departed Wagner and WGM Dr. Wagner obstetrics in certified board is who physician a of plaintiffs injuries. Plaintiffs submit the affirmation of physician who board certified obstetrics plaintiffs injuries. Plaintiffs submit the affirmation provided the and gynecology. gynecology. The The Court Court notes notes that that the the plaintiffs have provided the court court with with an unredacted unredacted copy copy of of plaintiffs have and review. camera their affirmation for in camera review. physician's affirmation their physician's Dr. Bodi, Bodi, Ms. Hill, Hill, Huntington Huntington Hospital, Hospital, and and Northwell Health, Inc., also also collectively collectively move move for Northwell Health, and the care that the them, arguing summary judgment dismissing the complaint as asserted asserted against against them, arguing that care and the complaint judgment dismissing summary of standards accepted and good with consistent treatment provided plaintiff was times consistent with good and accepted standards of times all at was plaintiff the to treatment provided alleged medical care, and that that none none of of the the actions actions or omissions omissions were were a proximate proximate cause cause of of plaintiff's plaintiff s alleged medical informed plaintiffs obtain duty injuries. They further argue that they did not have independent duty to obtain plaintiffs informed independent an have not did they that argue injuries. They further were consent prior prior to the hysterectomy hysterectomy procedure, procedure, and and that that the staff staff of of Huntington Huntington Hospital Hospital were properly properly consent Inc., submit, Health, Northwell and Hospital, qualified credentialed. Bodi, Hill, Huntington Hospital, and Northwell Health, submit, Huntington Hill, Ms. Bodi, Dr. credentialed. and qualified Schwartz, Z. Avraham of the affirmation inter alia, the affirmation affirmation of of Frederick Gulmi, M.D., and the affirmation of Avraham Schwartz, M.D., and Frederick A. Gulmi, inter Esq., on behalf behalf ofNorthwell of Northwell Health, Health, Inc. Plaintiffs Plaintiffs do not oppose oppose the motion. motion. Esq., uncertified copies Initially, the Court notes defendants have separately submitted submitted uncertified copies of of have separately while defendants that while notes that the Court Initially, contents their reference and admissibility their plaintiff s medical medical records, records, plaintiffs plaintiffs do not not challenge challenge their admissibility and reference their contents in plaintiffs opposition. Since Since there there is no prejudice prejudice to any substantial substantial right right of of the the plaintiffs plaintiffs by the the lack lack of of opposition. Trust Revocable Havell E. Robert of (Matter certification, the records will be considered admissible (Matter of Robert Havell Revocable Trust v admissible considered certification, the records will CPLR see Zoning of Appeals of Vil. Vii. of of Monroe, AD3d 1095, 1095,88 NYS3d NYS3d 353 [2d Dept Dept 2015]; 2015]; CPLR Monroe, 127 AD3d Appeals of Zoning Bd. of 2001). 2001). [* 4] 4 of 10 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 INDEX NO. 621243/2018 RECEIVED NYSCEF: 06/01/2021 Seliger Seliger v Wagner Wagner Index Index No. 621243/2018 621243/2018 Page Page 5 healthcare providers, providers, doctors doctors and hospitals hospitals owe owe a duty duty of of reasonable reasonable care care to their their patients patients As healthcare while while rendering rendering medical medical treatment, treatment, and and a breach breach of of this this duty duty constitutes constitutes medical medical malpractice malpractice (see Dupree v Giugliano, Dupree Giugliano, 20 NY3d 921,924,958 NYS2d 312,314 [2012]; [2012]; Scott Uljanov, 74 NY2d 673, NY3d 921,924,958 NYS2d 312,314 Scott v Uljanov, NY2d 673, 675,543 NYS2d 369 [1989]; [1989]; Tracy Tracy v Vassar Vassar Bros. AD3d 713, 713, 715, 715, 13 NYS3d 226,288 [2d 675,543 NYS2d 369 Bros. Hosp., Hosp., 130 AD3d NYS3d 226,288 Dept Dept 2015]). 2015]). To recover recover damages damages for medical medical malpractice, malpractice, a plaintiff plaintiff patient patient must must prove prove both both that that his or her her healthcare healthcare provider provider deviated deviated or departed departed from from good good and accepted accepted standards standards of of medical medical practice, practice, and that such departure departure proximately proximately caused caused his or her her injuries injuries (see Gross Gross v Friedman, Friedman, 73 NY2d 721,535 NY2d 721, 535 that NYS2d 586 [1988]; NYS2d [1988]; Bongiovanni Cavagnuolo, 138 AD3d AD3d 12, 16, 16,24 689, 692 [2d Dept Dept Bongiovanni v Cavagnuolo, 24 NYS3d NYS3d 689,692 2016]; Stukas AD3d 18, 18,23,918 Dept 2011]). 2011]). Stukas v Streiter, Streiter, 83 AD3d 23,918 NYS2d NYS2d 176 [2d Dept To establish judgment in a medical establish his or her her entitlement entitlement to summary summary judgment medical malpractice malpractice action, action, a defendant healthcare healthcare provider provider must must prove, prove, through through medical medical records records and competent competent expert expert affidavits, affidavits, the the defendant absence absence of of any such such departure, departure, or, if if there there was was a departure, departure, that that the plaintiff plaintiff was was not not injured injured as a result result Cavagnuolo, supra; supra; Mitchell Grace Plaza of Great Neck, AD3d 819, (see Bongiovanni Bongiovanni v Cavagnuolo, Mitchell v Grace Plaza o/Great Neck, Inc., Inc., 115 AD3d 982 NYS2d NYS2d 361 [2d Dept Dept 2014]; 2014]; Faccio Faccio v Golub, Golub, 91 AD3d AD3d 817,938 817, 938 NYS2d Dept 2012]). 2012]). To NYS2d 105 [2d Dept sustain this burden, burden, the the defendant defendant must must address address and rebut rebut any specific specific allegations allegations of of malpractice malpractice set forth forth sustain in the plaintiffs plaintiffs bill of of particulars particulars (see Schuck v Stony Brook Surgical Assoc., 140 AD3d 725, 33 Schuck Stony Brook Surgical Assoc., AD3d 725, NYS3d Dept 2016]; 2016]; Seiden AD3d 1158, 7 NYS3d Dept 2015]; 2015]; Lormel NYS3d 369 [2d Dept Seiden v Sonstein, Sonstein, 127 AD3d NYS3d 565 [2d Dept Lormel AD3d 734, 734, 979 979 NYS2d Dept 2014 2014]). If such such a showing showing is made, made, the the burden burden then then v Macura, Macura, 113 AD3d NYS2d 345 [2d Dept ]). If shifts shifts to the plaintiff plaintiff to submit submit evidentiary evidentiary facts facts or materials materials in rebuttal, rebuttal, but but only only as to those those elements elements on which Keesler v Small, Small, 140 AD3d 35 NYS3d NYS3d which the defendant defendant met met his or her her prima prima facie burden burden (see Keesler AD3d 1021, 1021,35 Dept 2016]; 2016]; Abakpa AD3d 924, 924,1919 NYS3d Dept 2015]; 2015]; Williams Williams v Abakpa v Martin, Martin, 132 AD3d NYS3d 303 [2d Dept 356 [2d Dept NYS2d 395 [2d Dept Stukas v Streiter, Streiter, supra). Bayley Seton Seton Hosp., Hosp., 112 AD3d Bayley AD3d 917,977 917, 977 NYS2d Dept 2013]; 2013]; Stukas supra). Although conflicting conflicting expert expert opinions opinions may may raise raise credibility credibility issues issues which which can can only only be resolved resolved by a jury, Although jury, expert opinions opinions that that are conclusory, conclusory, speculative, speculative, or unsupported unsupported by the the record record are insufficient insufficient to raise raise expert triable triable issues issues of of fact fact in a medical medical malpractice malpractice action action (see Wagner Wagner v Parker, AD3d 954, 954, 100 NYS3d Parker, 172 AD3d NYS3d Dept 2019]; 2019]; Bowe United Methodist Church Home, AD3d 1067, 1067, 1068 [2d 280 [2d Dept Bowe v Brooklyn Brooklyn United Methodist Church Home, 150 AD3d Dept Kerrins v South South Nassau Nassau Communities Hosp., 148 AD3d Dept 2017]; 2017]; Kerrins Communities Hosp., AD3d 795, 795, 796 796 [2d Dept Dept 2017]). 2017]). Further, a hospital hospital may may be held held liable liable on a negligent negligent hiring hiring and/or and/or retention retention theory theory to the the extent extent Further, that that its employee employee committed committed an independent independent act of of negligence negligence outside outside the the scope scope of of employment, employment, where where the hospital hospital was was aware aware of, or reasonably reasonably should should have have foreseen, foreseen, the the employee's employee's propensity propensity to commit commit act" (Doe (Doe v Gutherie Gutherie Clinic, Clinic, Ltd., 480,485,982 [2014]; see see Sieden Ltd., 22 NY3d NY3d 480,485, 982 NYS2d NYS2d 431 [2014]; Sieden v such an act" NYS3d 565 [2015]). Sonstein, 127 AD3d Sonstein, AD3d 1158, 1158, 7 NYS3d [2015]). However, However, a hospital hospital will will not not be be found found liable liable for damages caused caused by an employee's employee's negligence negligence under under a theory theory of of negligent negligent hiring, hiring, supervision supervision and damages retention, where where the employee employee is acting acting within within the the scope scope of of his or her her employment employment (see Simpson Simpson v retention, Edghill, 169 AD3d 93 NYS3d NYS3d 399 [2d Dept Henry v Sunrise Sunrise Manor Manor Ctr.for Nursing & Edghill, AD3d 737, 737,93 Dept 2019]; 2019]; Henry Ctr.for Nursing Rehabilitation, 147 AD3d NYS3d 649 [2d Dept Rehabilitation, AD3d 739, 739, 46 NYS3d Dept 2017]). 2017]). claim for lack lack of of informed informed consent consent "is "is a distinct distinct cause cause of of action action which which requires requires proof proof of of facts A claim not contemplated contemplated by an action action based based merely merely on allegations allegations of of negligence" negligence" (Kleinman (Kleinman v North North Shore Shore Univ. Hosp., Hosp., 148 AD3d AD3d 693,694, 693, 694, 48 NYS3d Dept 2017]; 2017]; see Public Public Health Health Law§ Law S 2805-d). 2805-d). To NYS3d 455 [2d Dept establish a claim claim for medical medical malpractice malpractice based based on lack of of informed informed consent, consent, a plaintiff plaintiff must must establish establish establish on lack [* 5] 5 of 10 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 INDEX NO. 621243/2018 RECEIVED NYSCEF: 06/01/2021 Seliger v Wagner Wagner Seliger 621243/2018 Index Index No. 621243/2018 Page 6 Page alternatives to the and alternatives benefits, and risks, benefits, foreseeable risks, (l) reasonably foreseeable the reasonably disclose the failed to disclose physician failed the physician that the (1) that prudent reasonably prudent that a reasonably disclosed; (2) that procedure have disclosed; would have circumstance would similar circumstance physician in a similar that a physician procedure that fully been fully had been she had if he or she procedure if person undergone the procedure have undergone not have would not position would plaintiff's position person in the plaintiff's that the procedure; and (3) that the procedure; informed of of the reasonable foreseeable risks, alternatives to the benefits, and alternatives risks, benefits, reasonable foreseeable informed 2805-d Law §9 2805-d Health Law Public Health injury sustained the injury lack of sustained (see Public of the cause of proximate cause consent is a proximate informed consent of informed Greenberg, v James Hugo James Greenberg, 96 Lynn G. v Hugo 729 [2010]; [1]; Orphan [2010]; Lynn NYS2d 729 907,914 NYS2d NY3d 907,914 Pilnik, 15 NY3d Orphan v Pilnik, [1]; 2019]; Dept 2019]; NYS3d 504 [2d Dept 686, 105 NYS3d AD3d 686, NY2d [2001]; Gilmore Gilmore v Mihail, Mihail, 174 AD3d NYS2d 121 [2001]; 306, 728 NYS2d NY2d 306, 2019]). Dept [2d 678 NYS3d 96 1249, AD3d 1249,96 NYS3d Wright v Morning Dept 2019]). It is Inc., 170 AD3d Servs., Inc., Ambulette Servs., Star Ambulette Morning Star Wright 2805Law§9 2805Health Law Public Health informed consent the obligation of a patient's obtain informed consent (see Public physician to obtain private physician patient's private obligation of Katz, Sela 2018]; Dept [2d NYS3d 81 923, AD3d 163 d [I]; [1]; Cynamon Cynamon v Mount Sinai Hosp., AD3d 923,81 NYS3d 520 Dept 2018]; Sela v Katz, Mount Sinai Hosp., Hosp., 2008]; Cirella Dept 2008]; supra; Cirella v Central Central Gen. Hosp., NYS2d 48 [2d Dept AD3d 147, 864 NYS2d Bryk, 55 AD3d Salandy v Bryk, supra; Salandy 1995]). Dept 1995]). 217 AD2d NYS2d 93 [2d Dept AD2d 680, 630 NYS2d judgment entitlement to summary facie, entitlement prima facie, Dr. Wagner summary judgment established, prima have established, WGM have and WGM Wagner and of affirmation of the affirmation submit the WGM submit and WGM dismissing Wagner and them. Dr. Wagner against them. asserted against complaint as asserted dismissing the complaint board that and York New medicine practice Robert Berg, M.D., who avers that he is licensed to practice medicine in New York and that he is board licensed that avers who M.D., Robert Berg, with of care with the standard with the that he is familiar certified in obstetrics obstetrics and gynecology. gynecology. Dr. Berg Berg avers avers that familiar with standard of certified including pelvis, including involving the female conditions involving respect of medical surgical conditions female pelvis, medical and surgical management of respect to the management medical of medical degree of reasonable degree within a reasonable opines, within urologic Berg opines, surgery. Dr. Berg pelvic surgery. of pelvic complications of urologic complications of treatment of and treatment care and practice in his care medical practice certainty, accepted medical and accepted good and adhered to good Wagner adhered that Dr. Wagner certainty, that that opines Berg Dr. WGM, Wagner at WGM, plaintiff. Berg opines that by Dr. Wagner provided by care provided pre-operative care the pre-operative respect to the With respect plaintiff. With that Dr. Berg opines practice. Dr. Berg medical practice. Dr. Wagner's accordance with accepted medical opines that good and accepted with good was in accordance care was Wagner's care prior her reviewed fibroids, of history history, history offibroids, reviewed her prior CT Wagner surgical history, past surgical plaintiff's past obtained plaintiff's appropriately obtained Wagner appropriately imaging presurgical imaging further presurgical that further scan, and performed opines that Berg opines examination. Dr. Berg physical examination. performed a physical were there were that there and plan, surgical the changed have not have changed the surgical plan, and that examinations would not they would required, as they not required, were not examinations were not the was not that it was urology consult. no preoperative indications for a urology consult. He opines opines that intraoperative indications preoperative or intraoperative surgical patient's a of regardless ureters, the stents standard of care for hysterectomy surgery to place stents in the ureters, regardless of patient's surgical place surgery hysterectomy standard of care including anatomy, including plaintiff's anatomy, observed plaintiff's history. appropriately observed Wagner appropriately that Dr. Wagner opines that Berg opines history. Dr. Berg within the was ureters the identifying technique identification of the ureters, and that his surgical technique in identifying the ureters was within surgical his that and ureters, identification of the ureteroscopy, cystoscopy, a ureteroscopy, require a cystoscopy, not require does not standard of of care. Dr. Berg opines that standard of of care does that the standard Berg opines standard identified have not would performed, was procedure or a retrograde pyelogram, and that, even if such procedure was performed, it would not have identified such if even that, and pyelogram, retrograde intraoperatively. obstruction, intraoperatively. ureter complete obstruction, transection or complete total transection than a total other than injury, other ureter injury, but surgery, but the surgery, of the time of the time perforated at the Dr. Berg not perforated was not ureter was plaintiffs ureter that plaintiffs opines that further opines Berg further ureteral that states tear. ureteral rather that suffered delayed injury in the of partial ureteral tear. He states that ureteral partial a of form injury delayed a suffered she rather that negligence. of negligence. the absence occur in the injuries absence of known to occur fashion, and are known delayed fashion, present in a delayed known to present injuries are known not and did not ureters and the ureters observed the Wagner observed Dr. Berg that Dr. Wagner based on the fact that opinion is based this opinion that this states that Berg states operative the from the operative away from were away ureters were observe the ureters that the confirm that able to confirm was able Wagner was that Dr. Wagner injury, that observe an injury, performed at that the CT scan field, that dry" before closing, and that scan performed before closing, "exceedingly dry" was "exceedingly pelvis was that the pelvis her amount of Huntington surgery did not significant amount of fluid fluid in her perforation or significant identify any perforation not identify after surgery Hospital after Huntington Hospital ·. pelvis. pelvis. [* 6] 6 of 10 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 INDEX NO. 621243/2018 RECEIVED NYSCEF: 06/01/2021 Seliger v Wagner Wagner Seliger Index 621243/2018 Index No. 621243/2018 Page 7 adhered to Wagner adhered that Dr. Wagner opines that Berg opines As to plaintiff's consent, Dr. Berg informed consent, of informed lack of claim for lack plaintiff's claim hysterectomy the to prior accepted medical obtaining plaintiff's informed consent consent prior hysterectomy plaintiff's informed practice in obtaining medical practice good and accepted plaintiff with plaintiff discussions detailed multiple procedure. Dr. Berg opines that Dr. Wagner's notes indicate multiple detailed discussions with indicate notes Wagner's Berg opines that procedure. is injury ureter that regarding surgical surgical options options and and the the risks associated with with each. Dr. Berg Berg states states that ureter injury a risks associated regarding Wagner on at discussed by Dr. Wagner was discussed potential was known surgery, and that this potential that this hysterectomy surgery, of hysterectomy complication of known complication plaintiff that notes Berg Dr. Further, occasions prior January 26, 26,2018 surgery. Further, Berg notes that plaintiff signed signed aa 2018 surgery. prior to the January least two occasions while explaining that while testified that written consent to surgery. surgery. Additionally, explaining the options options for Wagner testified Additionally, Dr. Wagner written consent explained diagrams, drew Wagner drew diagrams, explained that hysterectomy and fibroid fibroid treatment treatment with with plaintiff, that less plaintiff, Dr. Wagner hysterectomy plaintiff's her fibroids, invasive options options were appropriate given given the size of of her fibroids, and answered answered all of of plaintiff's not appropriate were not invasive uterine treat methods available of questions. Plaintiff testified that Dr. Wagner explained all of the available methods to treat uterine Wagner explained questions. Plaintiff testified that the Wagner about with Dr. Wagner two conversations fibroids with conversations with about the than two more than that she had more testified that with her, and testified fibroids procedure. procedure. judgment summary judgment motion for summary the motion Dr. burden on the prima facie burden their prima met their having met WGM having and WGM Wagner and Dr. Wagner triable a raise triable plaintiff to raise now shifts burden now dismissing the complaint complaint as asserted asserted against against them, shifts to plaintiff them, the burden dismissing NYS2d 508 320, NY2d 68 Hosp., issue of fact necessitating a trial (see Alvarez v Prospect Hosp., NY2d 320, NYS2d 923 [1986]; [1986]; Prospect Alvarez necessitating trial issue of Plaintiff supra). Streiter, supra). Plaintiff Stukas v Streiter, Stiso Dept 2019]; 2019]; Stukas NYS3d 139 [2d Dept AD3d 888, 110 NYS3d Berlin, 176 AD3d Stiso v Berlin, New medicine in New practice medicine licensed is she or submits the affirmation of physician, who avers that he licensed to practice that avers who physician, a submits the affirmation of the with familiar is she or he that that he or she is board board certified certified in obstetrics obstetrics and gynecology, gynecology, and and that familiar with the York, that the evaluation, well as the standards of of care care with open hysterectomy evaluation, diagnosis, diagnosis, and procedures, as well hysterectomy procedures, respect to open with respect standards certainty, medical of degree reasonable degree of medical certainty, within a reasonable treatment opines, within expert opines, Plaintiffs' expert injuries. Plaintiffs' ureter injuries. of ureter treatment of plaintiff. treatment of respect to his treatment with respect that deviated from from the applicable applicable standard standard of of care with of plaintiff. Wagner deviated that Dr. Wagner order to failing by care of care the standard from the Plaintiffs' standard of failing order deviated from Wagner deviated that Dr. Wagner opines that expert opines Plaintiffs' expert as the describes expert such which examination, appropriate preoperative imaging, particularly MRI examination, which such expert describes the MRI an particularly imaging, preoperative appropriate a was it that opines further expert Plaintiffs' "gold standard" standard" for mapping myomas. Plaintiffs' expert further opines that cervical myomas. and cervical uterine and mapping uterine "gold prior, as year and performed one departure for Dr. Wagner Wagner to rely scan that that was performed one year and eight eight months months prior, as rely on a CT scan departure because fibroids, plaintiff's of size location this study study would not be reliable in determining the location and size of plaintiff's fibroids, because the would not reliable determining fibroids can change change over over short short periods oftime. Plaintiffs' Plaintiffs' expert expert states states that that the standard standard of of care required required periods oftime. fibroids perform failure this that opines expert an MRI within 30 days of a hysterectomy. Plaintiffs' expert opines that this failure to perform Plaintiffs' days of hysterectomy. within of unaware of was unaware Wagner was preoperative imaging imaging caused caused or contributed contributed to plaintiff's ureter injury injury as Dr. Wagner plaintiff's ureter preoperative Wagner deviated plaintiff's anatomy. Further, expert opines opines that deviated from from the standard standard of of care that Dr. Wagner plaintiffs' expert Further, plaintiffs' plaintiff's anatomy. as first, methods conservative methods attempting conservative in performing a hysterectomy without attempting hysterectomy without and performing recommending and in recommending Wagner deviated that opines also expert plaintiff had a history of abdominal surgery. Plaintiffs' expert opines that Dr. Wagner deviated Plaintiffs' surgery. plaintiff had history of abdominal risk reduce and visualization and reduce the risk assist in visualization from the standard stents to assist ureteral stents place ureteral failing to place care by failing of care standard of this failure that this uterus, and that her uterus, of injury, injury, given given plaintiff's surgical history of her failure contributed contributed to to history and the size of plaintiff's surgical of of standard the from deviated Wagner deviated from that Dr. Wagner plaintiff's standard of opines that expert opines plaintiffs' expert Additionally, plaintiffs' injuries. Additionally, plaintiff's injuries. plaintiff's increased care by failing failing to call for an intraoperative intraoperative urology consultation, considering considering plaintiff's increased risk risk of of urology consultation, care ureters the identify to present urologist present have a urologist adhesions failure to have identify ureters this failure that this disortion, and that anatomical disortion, adhesions and anatomical that opines expert plaintiffs' Finally, injuries. and other urological structures contributed plaintiff's injuries. Finally, plaintiffs' expert opines that plaintiff's to contributed structures and other urological visualize, identify, properly to the caused by Dr. Wagner's failure properly identify, visualize, and Wagner's failure was caused ureter was left ureter plaintiff's left injury to plaintiff's the injury caused by Dr. directly caused was directly injury was this injury that this and that protect the left ureter ureter while while dissecting adhesions, and bladder adhesions, dissecting bladder protect Wagner's failure to exercise exercise proper proper care. Wagner's failure [* 7] 7 of 10 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 INDEX NO. 621243/2018 RECEIVED NYSCEF: 06/01/2021 Wagner Seliger v Wagner Seliger Index 621243/2018 Index No. 621243/2018 Page 8 their of their opinion of the opinion of fact, as the issues of triable issues raise triable Plaintiffs submitted evidence sufficient to raise evidence sufficient have submitted Plaintiffs have Wagner how explains circumstances, expert describes the applicable standard of care under the circumstances, explains how Dr. Wagner under care expert describes the applicable standard of of causes of competent causes were competent departures were these departures that these deviated concludes that and concludes standards, and such standards, from such departed from deviated or departed Omane 2018]; Dept [2d 234 NYS3d 70 656, AD3d 158 plaintiffs alleged injuries Smith v Mollica, AD3d NYS3d 234 Dept 2018]; Omane Mollica, Smith (see plaintiffs alleged injuries Hosp., 112 Seton Hosp., Bayley Seton 2017]; Williams v Sambaziotis, 1126,55 Williams v Bayley Dept 2017]; NYS3d 345 [2d Dept 55 NYS3d AD3d 1126, Sambaziotis, 150 AD3d Dept [2d Dept 176 NYS2d 18,918 AD3d 83 AD3d 917, 977 NYS2d 395 Dept 2013]; Stukas v Streiter, AD3d 18,918 NYS2d vStreiter, Stukas 2013]; Dept [2d NYS2d AD3d 917,977 experts as medical experts opinions by medical conflicting opinions 2011]). presented conflicting have presented WGM have and WGM Wagner and plaintiff, Dr. Wagner 2011]). As plaintiff, proximate cause practice occurred, medical practice to whether departure from good good and and accepted accepted medical occurred, and and as to the proximate cause whether a departure not is WGM not Wagner and WGM judgment as to Dr. Wagner of plaintiffs alleged injuries, order granting summary judgment granting summary injuries, an order plaintiffs alleged of ChenJagenburg v Chen2019]; Jagenburg Dept 2019]; NYS3d 642 [2d Dept appropriate 1148,96 96 NYS3d AD3d 1148, Kelly, 170 AD3d Lefkowitz v Kelly, appropriate (see Lefkowitz 208 NYS3d 15 590, AD3d 590, Feld, 131 AD3d Leto v Feld, Stiebel, 1239, 85 NYS3d NYS3d 2018]; Leto Dept 2018]; NYS3d 558 [2d Dept AD3d 1239, Stiebel, 165 AD3d 2015]). Dept 2015]). [2d Dept against Dr. asserted against consent as asserted informed consent of informed With lack of action for lack of action cause of plaintiffs' cause respect to plaintiffs' With respect specifically or motion, WGM's and WGM's motion, Wagner and Wagner, specifically of Dr. Wagner branch of this branch oppose this failed to oppose have failed plaintiffs have Wagner, plaintiffs Stukas v supra; Stukas Inc., supra; Servs., Inc., Ambulette Servs., Star Ambulette address Wright v Morning Morning Star action (see Wright of action cause of such a cause address such against asserted as consent, informed of lack for Streiter, supra). Therefore, plaintiffs' cause of action of informed consent, asserted against action Streiter, supra). Therefore, plaintiffs' cause of dismissed. WGM, is dismissed. Dr. Wagner and WGM, Wagner and have each have Health, Inc., each Northwell Health, and Northwell Hospital, and With Huntington Hospital, Hill, Huntington Bodi, Ms. Hill, respect to Dr. Bodi, With respect asserted complaint the dismissing judgment also established, prima facie, entitlement to summary judgment dismissing the complaint as asserted summary entitlement facie, established, prima prima facie against them. established his prima facie entitlement entitlement to summary summary Bodi has established Bodi, Dr. Bodi respect to Dr. Bodi, With respect them. With against licensed that avers who M.D., Gulmi, judgment. Dr. Bodi submits the affirmation of Frederick A. Gulmi, M.D., who avers that he is licensed Frederick of affirmation the submits Bodi judgment. with familiar with fully familiar that he is fully and that urology, and to practice certified iri urology, board certified that he is board York, that New York, medicine in New practice medicine medical of medical degree of reasonable degree within a reasonable the standard opines, within Gulmi opines, 2018. Dr. Gulmi existed in 2018. care as it existed of care standard of February 6, certainty, that deviate or depart depart from the applicable applicable standard standard of of care care in his February not deviate Bodi did not that Dr. Bodi certainty, plaintiffss cause of proximate cause was a proximate Bodi was of Dr. Bodi 2018 treatment of plaintiff omission of that no act or omission and that plaintiff, and of plaintiff, treatment of already had she plaintiff, evaluated plaintiff, Bodi evaluated alleged had already time Dr. Bodi the time that by the states that Gulmi states injuries. Dr. Gulmi alleged injuries. and a cultures, and blood cultures, bloodwork, blood including bloodwork, condition, including her condition, undergone evaluate her testing to evaluate appropriate testing undergone all appropriate there and complaints, plaintiffs evaluate to CT scan. Dr. Gulmi appropriate evaluate plaintiff s complaints, and there were appropriate tests were these tests that these opines that Gulmi opines was the that a CT was no failure failure by Dr. Bodi Gulmi opines opines that CT scan scan was Further, Dr. Gulmi testing. Further, respect to testing. with respect Bodi with Bodi that opines Gulmi plaintiff. appropriate test, rather than an ultrasound, to evaluate plaintiff. Dr. Gulmi opines that Dr. Bodi ultrasound, evaluate appropriate test, rather than diagnosis appropriate diagnosis and appropriate reasonable and reached a reasonable performed that he reached and that examination, and proper examination, and proper timely and performed a timely were recommendations treatment Bodi's that ofleft ureteral obstruction. Dr. Gulmi further opines that Dr. Bodi's treatment recommendations were opines Gulmi further ofleft ureteral obstruction. not was not her condition treated as an outpatient, appropriate, including including the recommendation outpatient, as her condition was that she be treated recommendation that appropriate, opines Gulmi consent, emergent. With respect to plaintiffs cause of action for lack of informed consent, Dr. Gulmi opines informed of lack action of cause emergent. With respect plaintiffs perform not perform consent, as he did not informed consent, plaintiffss informed that obtain plaintiff Bodi to obtain imposed on Dr. Bodi duty imposed was no duty there was that there any invasive procedures. procedures. invasive Bourhill and Dr. With acted as the assistant assistant to Dr. Bourhill that she acted undisputed that Hill, it is undisputed respect to Ms. Hill, With respect may be assistant surgeons, Wagner surgery. Hospital staff, such such as assistant surgeons, may Hospital staff, 26, 2018 surgery. January 26,2018 plaintiff's January during plaintiffs Wagner during orders are so doctor's orders the doctor's that the knows that staff knows liable "where the hospital staff the hospital order "where doctor's order out a doctor's carrying out liable for carrying of correctness of the correctness into the inquiry into requires inquiry prudence requires clearly ordinary prudence that ordinary practice that normal practice contraindicated by normal clearly contraindicated NYS2d 440 [1968], 255,265 n 3,292 NY2d 255,265 the orders" orders" (Toth (Toth v Community Community Hosp. Glen Cove, 22 NY2d 3,292 NYS2d [1968], Hosp. at Glen [* 8] 8 of 10 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 INDEX NO. 621243/2018 RECEIVED NYSCEF: 06/01/2021 Seliger v Wagner Wagner Seliger Index No. 621243/2018 621243/2018 Index Page9 Page 9 citing Fiorentino Fiorentino v Wenger Wenger 19 NY2d NY2d 407, 407,414-415,280 [1967]; see see Vaccaro Vaccaro v St. NYS2d 373 [1967]; 414-415, 280 NYS2d citing NYS2d 163 [2d Dept Vincent's Med. AD3d 1000, 1000,898 Dept 2010]). 2010]). This This general general standard standard has been been 898 NYS2d Med. Ctr., 71 AD3d Vincent's who doctors other applied not not only only to nurses nurses and and hospital hospital personnel, also to medical medical residents residents and and other doctors who but also personnel, but applied professional themselves exercise not themselves who do not engaged in assisting assisting a treating treating physician, and who exercise any any professional physician, and are engaged 58 [2d Dept NYS3d 27 191, 179, AD3d 138 Bute, v judgment with respect to the patient (Abrams Bute, AD3d 191,27 NYS3d Dept judgment with respect the patient (Abrams Soto v Andaz, AD3d 470,471, 470, 471, 779 NYS2d NYS2d 104 [2d Dept Dept 2004]; 2004]; Cook Cook v Reisner, Reisner, 295 Andaz, 8 AD3d 2016]; see Soto AD2d 466, 744 NYS2d NYS2d 426 426 [2d Dept Dept 2002]). 2002]). "When "When supervised supervised medical medical personnel personnel are not not exercising exercising AD2d their independent independent medical medical judgment, they cannot cannot be held held liable liable for medical medical malpractice malpractice unless unless the judgment, they their directions from the supervising supervising superior superior or doctor doctor so greatly greatly deviates deviates from from normal normal medical medical practice practice that that directions 633, 920 NYS2d they should should be held held liable liable for failing failing to intervene" intervene" (Bellafiore (Bellafiore v Ricotta, AD3d 632, 632,633,920 NYS2d Ricotta, 83 AD3d they 995 Milligan, 121 AD3d Zhuzhingo v Milligan, supra; Zhuzhingo Dept 2011]; 2011]; see AD3d 1103, 1103, 1106, 1106,995 Bute, supra; Abrams v Bute, see Abrams 373 [2d Dept supra). Ms. Hill NYS2d Dept 2014]; 2014]; Soto Hill has established established that that she was was not not exercising exercising Andaz, supra). Soto v Andaz, NYS2d 588 [2d Dept Bourhill or Dr. Wagner taken by Dr. Bourhill were no actions there were that there independent medical and that actions taken Wagner judgment, and medical judgment, any independent that greatly deviated deviated from from normal such that can be liable liable for failing failing to intervene. intervene. that she can practice such medical practice normal medical that so greatly With respect respect to the the branch branch of of the motion motion by Huntington Huntington Hospital, Hospital, it has established established its prima prima With entitlement to summary summary judgment dismissing the complaint. complaint. Huntington Huntington Hospital Hospital submits submits the judgment dismissing facie entitlement affirmation of of Dr. Gulmi, Gulmi, who who opines, opines, within within a reasonable reasonable degree degree of of medical medical certainty, certainty, that that the the staff staff of of affirmation Huntington Hospital Hospital performed performed reasonable reasonable and appropriate appropriate preoperative preoperative and and postoperative postoperative evaluations evaluations Huntington by the evaluated was plaintiff that of plaintiff during her admissions to the facility. Gulmi opines that plaintiff was evaluated opines Gulmi Dr. facility. of plaintiff during her admissions times the staff appropriate medical specialists, and and that that the the care care and and treatment staff at all times provided by the treatment provided medical specialists, appropriate injuries. alleged plaintiffs of cause proximate not conformed to the standard of care, and was not the proximate cause of plaintiff s alleged injuries. was and care, of standard conformed Bodi, Ms. Hill, Hill, and and Huntington Huntington Hospital Hospital having having met met their their prima prima facie facie burden burden on their their Dr. Bodi, respective branches branches of of the motion, motion, the burden burden now now shifts shifts to plaintiffs plaintiffs to raise raise a triable triable issue issue of of fact respective Morning Star necessitating a trial trial (see Alvarez supra; Stiso Stiso v Berlin, Berlin, supra; supra; Wright Wright v Morning Star Hosp., supra; Prospect Hosp., Alvarez v Prospect necessitating Ambulette supra; Stukas Streiter, supra). supra). Plaintiffs Plaintiffs fail to oppose oppose the motion motion which, which, in Stukas v Streiter, Inc., supra; Servs., Inc., Ambulette Servs., effect, is a concession concession that that no question question of of fact exists, exists, and the the facts as alleged alleged in the the moving moving papers papers may may effect, Bethpage LLC v 10 Bethpage Realty, LLC supra; 114 Woodbury Baiden, supra; be deemed deemed admitted admitted (see Kuehne Woodbury Realty, Nagel v Baiden, Kuehne & Nagel Rd., Therefore, the the branch of the motion motion by Dr. Bodi, Bodi, Ms. Hill Hill and and Huntington Huntington Hospital Hospital branch of supra). Therefore, LLC, supra). Rd., LLC, summary judgment dismissing the the complaint complaint as asserted asserted against against them them is granted. granted. judgment dismissing for summary With respect respect to the branch branch of of the motion motion seeking seeking judgment favor ofNorthwell of North well Health, Health, Inc., the judgment in favor With moving defendants defendants submit submit the affirmation affirmation of of Avraham Avraham Schwartz, Schwartz, Esq., Esq., who who avers avers that that he is the Vice Vice moving that states President of of the Medical Medical Malpractice Malpractice Program Program at Northwell Northwell Health, Health, Inc. Mr. Schwartz Schwartz states that President Northwell Health, Health, Inc. is a not-for-profit not-for-profit corporation corporation and the corporate corporate parent parent of of Huntington Huntington Hospital, Hospital, Northwell Northwell Health, and that that it does does not not provide provide patient patient care. care. Here, Here, Northwell Health, Inc. has has established established that that it had had no physician-patient relationship relationship with with plaintiff such as to establish establish a claim claim for medical medical malpractice. malpractice. "It "It is plaintiff such physician-patient a of absence the in imposed not may malpractice generally recognized that liability medical malpractice may not be imposed the absence of medical for liability generally recognized that AD2d 614,614,690 Hosp., 261 AD2d Samaritan Hosp., physician-patient Good Samaritan 614,614,690 Zimmerly v Good relationship" (see Zimmerly physician-patient relationship" Health, Inc., as a corporate NYS2d 718 [2d Dept.1999]). there is no evidence evidence that that Northwell corporate parent parent Northwell Health, Dept -1999]). As there NYS2d of Huntington Huntington Hospital, Hospital, had had any relationship relationship with with plaintiff plaintiff for the purposes purposes of of rendering rendering medical medical or of surgical treatment, treatment, the the complaint complaint is dismissed dismissed as against against it. surgical [* 9] 9 of 10 INDEX NO. 621243/2018 FILED: SUFFOLK COUNTY CLERK 06/01/2021 04:04 PM NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 06/01/2021 ·. Seliger Seliger v Wagner Wagner Index Index No. 621243/2018 62124312018 Page 10 The unredacted plaintiffs' medical medical expert Wagner unredacted affirmation affirmation of of plaintiffs' expert submitted submitted in opposition opposition to Dr. Wagner WGM's motion motion is being being ~etumed ~eturned b~ by mail plaintiffs' counsel with the issuance and WGM's mail to plaintiffs' counsel simultaneously simultaneously with issuance of of this order. Dated: Dated: JUN \ 2021 ' JUN O 0 ·.\2021' PH A. SANTORELLI SANTORELLI J.S.C. J.S.C. FINAL FINAL DISPOSITION DISPOSITION X NON-FINAL DISPOSITION DISPOSITION NON-FINAL -..J / ( [* 10] 10 of 10

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