Johnson v Rimpel

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[*1] Johnson v Rimpel 2023 NY Slip Op 50846(U) Decided on August 14, 2023 Supreme Court, Kings County Mallafre Melendez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 14, 2023
Supreme Court, Kings County

Minel Johnson and Kirk Johnson, as Administrator of the Estate of Ansel Johnson, Deceased, Plaintiffs,


Bernard Rimpel, Umesh Mishra, Joseph Dergan, Sarina Cranage, Stacey Martindale, Amer Homsi, David Schaner and the Brooklyn Hospital Center, Defendants.

Index No. 523101/2016

Attorneys for Plaintiff:
Richard Alan Gurfein, Esq., Gurfein Douglas LLP, 11 Park Place, Suite 705, New York, New York 10007

Attorneys for Defendants:
Martin B. Adams, Esq., DOPF, P.C., 112 West 34th Street, Suite 1555, New York, New York 10120
Joy Woda Schneider, Esq., Kerley, Walsh, Matera & Cinqueman, P.C., 2174 Jackson Avenue, Seaford, New York 11783

Consuelo Mallafre Melendez, J.

Recitation, as required by CPLR §2219 [a], of the papers considered in the review:

NYSCEF Doc Nos: Seq. 6: 134 — 139, 140 — 157, 203 — 205, 206 — 216, 233, 234 — 238
Seq. 7: 158 — 160, 162 — 197, 217 — 219, 220 — 230, 239, 241

Defendants David Schaner, M.D. ("Schaner") and Certified Registered Nurse Anesthetist Sarina Cranage ("Cranage") move for dismissal of this action on the grounds that it is time-barred pursuant to CPLR § 3211(a)(5) (Sequence No.7); in the alternative, Schaner and Cranage move pursuant to CPLR § 3212 for summary judgment in their favor, as well as dismissal of the derivative claims of Ansel Johnson as time barred (Sequence #7); and defendants THE BROOKLYN HOSPITAL CENTER ("Brooklyn Hospital"), UMESH MISHRA ("Mishra"), [*2]JOSEPH DERGAN ("Dergan"), STACEY MARTINDALE ("Martindale"), AMER HOMSI ("Homsi") move pursuant to CPLR § 3212 for summary judgment in their favor, and THE BROOKLYN HOSPITAL CENTER ("Brooklyn Hospital") additionally moves for summary judgment on the grounds that it cannot be held vicariously liable for the actions of defendants Schaner and Cranage and the medical staff, and also seeks summary judgment dismissing plaintiff's Lack of Informed Consent cause of action (Sequence #6).

The motions on behalf of Defendants Martindale and Homsi are granted without opposition and the action is dismissed as against them. A Stipulation of Discontinuance as to Defendant Dergan and Defendant Mishra has been signed by the parties and So-Ordered by the Court. The motions on behalf of these defendants are rendered moot.

This action arises from alleged acts of malpractice by several defendants associated with Brooklyn Hospital. Plaintiff Minel Johnson claims that she sustained an anoxic brain injury while recovering from a hernia repair surgery in Brooklyn Hospital's Post Anesthesia Care Unit (PACU). Mrs. Johnson was admitted to Brooklyn Hospital on May 2, 2014, for a hernia repair surgery. The procedure itself is not at issue. After the surgery, at 1:50pm, Mrs. Johnson was brought to the to the PACU. That evening around 11:30pm, Mrs. Johnson, while in the PACU, became bradycardic, and her measured blood oxygenation dropped. She was found unresponsive and deteriorated into a pulseless state, leading to a Code Blue being called. Resuscitation by defendants Schaner and Cranage took several minutes, and although Mrs. Johnson was revived, she remained in a coma for several weeks thereafter. During the weeks that followed, she was noted to be unresponsive to vocal stimuli and only responded involuntarily to physical stimuli. The hospital record indicates unequivocally that on day 58 of the hospitalization (June 28, 2014), the plaintiff was still "Unresponsive. . . Only brain stem reflexes intact." Mrs. Johnson suffered a hypoxic brain injury which has confined her to a wheelchair and left her cortically blind. Plaintiff claims that the defendants inadequately medicated and monitored Mrs. Johnson, leading to a late discovery of her declining condition, contributing to her cardiac arrest, and delaying her proper resuscitation, thereby causing her injuries.

Defendants Schaner and Cranage first move pursuant to CPLR § 3211(a)(5) contending that the action is time-barred, having been filed more than two and a half years after accrual, and therefore must be dismissed. Plaintiff asserts in opposition that, pursuant to CPLR § 208(a), Mrs. Johnson's condition in the weeks following May 2, 2014 entitles her to a toll of the statute of limitations by reason of insanity, and that the complaint therefore was timely filed.

As a preliminary matter, defendants assert that a toll of the statute of limitations for continuous treatment of the plaintiff is inappropriate, as there was neither treatment nor contemplated treatment by either Schaner or Cranage after the date of Mrs. Johnson's cardiac arrest. Furthermore, they contend that there was not a sufficient relationship between Schaner and Cranage and any subsequently treating physicians to impute those physicians' treatment of Mrs. Johnson to defendants, thereby breaking the continuity of treatment when she left defendants' care. See Gomez v. Katz, 61 AD3d 108 [2d Dept 2009]. As plaintiff does not address this argument, however, and in fact asserts that a different toll applies to Mrs. Johnson's case, the Court does not consider arguments as to the applicability of the continuous treatment toll.

Under CPLR § 214, the statute of limitations to commence an action for medical malpractice is within two and a half years of the accrual of the cause of action. CPLR § 214(a). The cause of action accrues on the date of the "act, omission or failure complained of," or from the date of last treatment if there was continuous treatment of the same condition that gave rise [*3]to the alleged malpractice. CPLR § 214(a); see Kealos v. State, 150 AD3d 1211, 1212—13 [2d Dept 2017]; see also Rosenfeld v. Schlecker, 5 AD3d 461, 461 [2d Dept 2004].

A defendant moving pursuant to §3211(a)(5) must establish, prima facie, that the statutory period to commence an action has expired; "the burden then shift[s] to the plaintiff to 'aver evidentiary facts' establishing that the case falls within an exception to the [s]tatute of [l]imitations." Rosenfeld, 5 AD3d at 461, quoting Assad v. City of New York, 238 AD2d 456, 457 [1997] [internal citation omitted]. Pursuant to CPLR §208(a), one such exception is that the statutory period may be tolled if the plaintiff is under a disability stemming from either infancy or insanity; for a medical malpractice action, where the underlying statutory period is less than three years, the toll applies for the period during which the disability is present. CPLR § 208(a); Kealos, 150 AD3d at 1212—13.

The disability of insanity has been a topic of much litigation, as the statute contains no definition for the term. In McCarthy v. Volkswagen of Am., Inc., 55 NY2d 543 [1982], the Court of Appeals ruled that the legislature intended that the term be "narrowly interpreted," and should generally only be applied "to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society." Id. at 548.

Importantly, it not simply the presence of some mental disability that entitles a plaintiff to this toll, but rather a factual assessment of whether they had the ability to protect their legal rights during the claimed period. Id.; see also Rosenfeld, 5 AD3d at 461. The plaintiff must be able to point to facts that demonstrate that they were under a significant disability of the kind that made them unable to manage their own affairs while the statutory period was running. Rosenfeld, 5 AD3d at 461—62. The mere presence of a psychiatric condition during that time is, on its own, insufficient to demonstrate this inability to function, without facts to show the severity of the claimed disability. Potter v. Zucker Hillside Hosp., 176 AD3d 884, 885 [2nd Dept 2019]; see also McCarthy, 55 NY2d at 548-49. Even evidence of temporary impairment, such as from medications or anesthesia, may not be sufficient to show a disability if a factual inquiry shows that the plaintiff was still able to manage their own affairs. See Thompson v. Metro. Transp. Auth., 112 AD3d 912, 914 [2d Dept 2013]. In Thompson, the Second Department held that the plaintiff's decedent's ability to hire an attorney on their own and begin serving notices on defendants was evidence that he was able to function and handle his own affairs during the statutory period, thus making the insanity toll unavailable to him. Id.

However, certain circumstances, particularly where the plaintiff sustains significant brain trauma, typically entitle those plaintiffs to the toll. See Schulman v. Jacobowitz, 19 AD3d 574, 576—77 [2d Dept 2005]. A plaintiff who, for instance, is in a coma or other unresponsive state is undeniably unable to manage their affairs or function in society. Kealos v. State, 150 AD3d 1211, 1212 [2d Dept 2017]; see also Carrasquillo v. Holliswood Hosp., 37 AD3d 509, 509 [2d Dept 2007]; Ferreira v. Maimonides Med. Ctr., 43 AD3d 856, 858 [2d Dept 2007]. The plaintiff in Ferreira, who was left "unresponsive and in need of breathing and feeding support" following two strokes, was entitled to the toll because his condition clearly left him unable to protect his interests. Ferreira, 43 AD3d at 858.

Similarly, plaintiffs whose injury leaves them unable to speak or comprehend at adequate levels are generally recognized to be unable to protect their own interests, and may therefore employ the insanity toll. Schulman, 19 AD3d at 576. In Schulman, the plaintiff, who had suffered a stroke, thereafter had "an inability to speak a depressed level of consciousness, was confused and lethargic, and opened his eyes to stimuli but could follow no commands." Id. [*4]Because of his severe "cognitive deficits," the court held that he was unable to protect his legal rights, and thus he was entitled to the toll. Id. at 576—77.

The case at bar shares many — if not all — of the characteristics of the cases above. It is undisputed that Mrs. Johnson was first noted as unresponsive on the night of May 2, 2014; that she suffered an anoxic brain injury that night; and, as the plaintiff notes, she is referred to in the hospital chart as "unresponsive" with only "brain stem reflexes" functioning as of May 3. (Seq. #6 Exhibit A, p.1). A much later entry, dated July 3, 2014, notes that Mrs. Johnson still makes "no purposeful movements," and does not respond to vocal stimuli. (Seq. #6 Exhibit C, p.1). That same entry states that her "[m]ental status [is] minimally improving." Id.

The precedents cited unequivocally show that an unresponsive or comatose person is not able to protect their own legal rights, and therefore is entitled to the benefit of the tolling provision of CPLR § 208. The plaintiff has introduced sufficient evidence establishing that Mrs. Johnson was in an unresponsive state from at least the night of May 2 through July 3, 2014. During that time, she was unable to communicate and was confirmed to have brain damage, and thus was unable to function in a manner that would allow her to protect her legal interests. McCarthy, 55 NY2d at 548-49. She is therefore entitled to a toll of the statutory period during that time. At the earliest, the two and a half year period would end on January 3, 2017. Since plaintiff's complaint was filed on December 28, 2016, the complaint was timely filed, and the motion to dismiss is denied.

CPLR 208, however, does not toll the derivative claim of Ansel Johnson and thus this claim must be dismissed as untimely. Vaynman v. Maimonides Medical Center, 4 AD3d 414 [2d Dept 2004].

Defendant Brooklyn Hospital claims in its motion for summary judgment that Schaner and Cranage are independent contractors and not employees of Brooklyn Hospital and point in their affirmation to the contractual agreement between the hospital and an organization called North American Partners in Anesthesiology (NAPA) that pays Schaner and Cranage for their services in the hospital. The contract excerpt states that the staff NAPA provides to the hospital must not hold themselves out as employees of the hospital; that NAPA will provide their insurance; and that NAPA is to handle all billing for defendants. This, they claim, shows that Schaner and Cranage are independent contractors for the hospital, employed by NAPA, and therefore the hospital cannot be held liable for their actions.

Plaintiff counters that the doctrine of apparent or ostensible agency provides an exception to the general rule in this case, raising a triable question of fact as to whether the hospital can be held liable for Schaner and Cranage despite this contractual agreement. They further argue that the nature of New York's hospital regulations regarding anesthesiology and other outpatient services demonstrates the hospital's control over the defendants' duties, and creates a non-delegable duty in the hospital to ensure the quality of the service they provide.

In general, an employer is only vicariously liable for the actions of its employees, and it cannot be held responsible for the acts or omissions of a physician who is an independent contractor. (see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]; Goffredo v St. Luke's Cornwall Hosp., 194 AD3d 699, 700 [2d Dept 2021]); Russell v River Manor Corp., 216 AD3d 827, 830 [2d Dept 2023]. However, where a patient sought treatment from the emergency room of a hospital, or for services from a clinic or hospital generally without specifically choosing the physician, the hospital may be liable for acts of malpractice by the treating physician, regardless of contractual agreements in place to the contrary. See Mduba v. Benedictine Hosp., 52 AD2d [*5]450, 450 [3d Dept 1976]; see also Hill v. St. Clare's Hosp., 67 NY2d 72, 80-81 [1986]; Augeri v. Massoff, 134 AD2d 308, 309 [2d Dept 1987]; ]; Goffredo, 194 AD3d 699, 700 [2d Dept 2021].

The analysis as to whether or not a hospital can be held liable for the actions of an independent contractor physician hinges on whether the hospital had sufficient control over the physician's position; that is, whether the hospital controls the "means or manner" in which the physician serves their patients. Mduba, 52 AD2d at 452. Such control may be determined "from the contract itself, the attitude of the parties toward each other, the nature of the work and all relevant circumstances." Felice v. St. Agnes Hosp., 65 AD2d 388, 396 [2d Dept 1978] [emphasis in original]. Examples of these circumstances may include whether the physician had an exclusive relationship to the hospital and whether it was the hospital or another, third entity paying the physician's salary. See Mertsaris v. 73rd Corp., 105 AD2d 67, 80 [2d Dept 1984].

An additional factor to be considered is that of the apparent or ostensible agency of the physician against whom malpractice is claimed — that is, whether a patient could reasonably have believed the physician to be an agent of the hospital either because the physician held themselves out as such, or because the patient sought treatment from the hospital at large (rather than any particular physician), and the hospital furnished the physician to provide that treatment. Mduba, 52 AD2d at 452; Hill, 67 NY2d at 79-81, citing Hannon v Siegel-Cooper Co., 167 NY 244 [1901]. If the hospital furnished the physician to the patient and the physician held themselves out in a manner that could have led the patient to believe that they were an agent of the hospital, that can be sufficient to hold the hospital liable. Hill, 67 NY2d at 79-81. This, too, is an inquiry to be conducted using "[a]ll the attendant circumstances," and where the language or payment structure of the agreement between the physicians and the doctor is not necessarily dispositive of the issue. Augeri, 134 AD2d at 309.

In order to successfully move for summary judgment on this issue, the defendant hospital must make a prima facie showing that the physician against whom claims of malpractice are made was an independent contractor and not an employee of the hospital, and that no exception to the general rule applies. Russell v. River Manor Corp., 216 AD3d 827, 830 [2d Dept 2023]. If the hospital meets this burden, the plaintiff, in turn, may rebut the hospital's prima facie showing by "raising a triable issue of fact as to whether the hospital can be held vicariously liable for the malpractice of an attending physician who is not under its employ pursuant to a theory of 'apparent or ostensible agency.'" Muslim v Horizon Med. Group, P.C., 118 AD3d 681, 683 [2d Dept 2014], quoting Hill, 67 NY2d at 79. The plaintiff can demonstrate that such an issue of fact exists by introducing evidence that "the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital." Dupree v. Westchester County Health Care Corp., 164 AD3d 1211, 1213 [2d Dept 2018].

In this case, it is clear that the hospital held itself out as an institution providing surgical and post-surgical services to patients. An essential part of surgery is the administration of anesthesia, and the recovery therefrom in a convenient and safe location post-operation. Therefore the hospital, by holding itself out as providing surgery, held itself out as providing the necessary recovery services of a post-anesthesia care unit. Furthermore, it is reasonable to think that Mrs. Johnson would have believed that the post-anesthesia services she received would be provided by the hospital. Unless she was informed of the hospital's agreement between NAPA, Schaner, and Cranage, or the manner in which the medical staff were paid before the procedure, she would likely not have known that her post surgery recovery in the hospital was provided by independent contractors. There is no evidence that she was given any indication that these [*6]defendants were anything other than hospital employees providing hospital services. As stated in Mduba, a patient entering the hospital seeking "hospital services" — that is, engaging the hospital for treatment rather than engaging any particular doctor — has a right to expect, if the hospital undertakes to provide those services, that any personnel furnished by the hospital will provide "satisfactory treatment." Mduba, 52 AD2d at 453—54. Mrs. Johnson is "not bound by secret limitations as are contained in a private contract between the hospital and the doctor." Id. at 453.

Finally, and perhaps as relevant, is the issue of the defendant hospital's control over the defendant physicians. Plaintiffs in their opposition note that certain services performed under a hospital's roof must be governed by the hospital under current regulations. Plaintiff cites to NYCRR § 405.20, which provides that a hospital performing surgery must approve and adopt the internal policies that govern surgical procedures and the staff who perform them. NYCRR § 405.20(7). An additional section on anesthesia services specifically states that "If anesthesia services are provided within a hospital, the hospital shall develop, implement and keep current effective written policies and procedures in accordance with generally accepted standards of medical practice and patient care." 10 NYCRR § 405.13. Therefore it is the hospital, not any independent contractor, who appears to control staff involved in the administration of anesthesia. This would logically include Schaner and Cranage as the on-call anesthesiology team and staff in the hospital.

While these defendants have certainly demonstrated that they are independent contractors who have been provided by NAPA to Brooklyn Hospital, it is clear from the above that they are required to answer to the hospital on matters of internal policy. In addition, NAPA has an exclusive relationship with Brooklyn Hospital as its sole provider of anesthesia services, as in Mertsaris. This exclusive relationship suggests a level of integration with the hospital that goes beyond the typical independent contractor, and provides additional support for the contention that the defendants were under the hospital's control. Furthermore, the Court agrees with plaintiff that a person who enters a post-anesthesia care unit while still unconscious is not meaningfully different from a person who enters an emergency room; each seeks treatment from the hospital in the manner it is available to them, rather than selecting any one physician. A patient in either circumstance would not be making any great leap in logic to think that the hospital at which they sought treatment was the entity providing the agent of that treatment. And a patient in those circumstances has the right to expect that their treatment will conform to the standards of the hospital, as well as the standards of care within the medical community.

For the foregoing reasons, this Court finds that while the defendant met their burden in showing that they were not employees of Brooklyn Hospital, plaintiff raises an issue of fact as to whether the hospital can be held vicariously liable for the alleged malpractice of defendants Schaner and Cranage, who are not under its employ, pursuant to a theory of "apparent or ostensible agency." Therefore, summary judgment for Brooklyn Hospital is inappropriate, and the motion is denied.

Defendants Schaner and Cranage also move for summary judgment as to the claims against them. "'In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries [internal citations omitted].'" Hutchinson v. New York City Health and Hosps. Corp., 172 AD3d 1037, 1039 [2d Dept 2019], citing Stukas v. Streiter, 83 AD3d 18, 23 [2d Dept 2011]. "Thus, in moving for summary judgment, a physician defendant must establish, prima facie, 'either that [*7]there was no departure or that any departure was not a proximate cause of the plaintiff's injuries.'" Hutchinson, 132 AD3d at 1039, citing Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 AD3d 959, 960 [2d Dept 2015]. "Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause [internal citations omitted]." Navarro v. Ortiz, 203 AD3d 834, 836 [2d Dept 2022]. " 'When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution.' " Stewart v. North Shore University Hospital at Syosset, 204 AD3d 858, 860 [2d Dept 2022], citing Russell v. Garafalo, 189 AD3d 1100, 1102 [2d Dept 2020] [internal citations omitted]. "Any conflicts in the testimony merely raised an issue of fact for the fact-finder to resolve." Palmiero v. Luchs, 202 AD3d 989, 992 [2d Dept 2022], citing Lavi v. NYU Hosps. Ctr., 133 AD3d 830, 832 [2d Dept 2015]. However, "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise a triable issue of fact [internal citations omitted]." Wagner v. Parker, 172 AD3d 954, 966 [2d Dept 2019].

As to the experts' opinions, case law is clear that "mere conclusions, expressions of hope or unsubstantiated allegations are insufficient" to raise a triable issue of fact to defeat a motion for summary judgment on the issue of liability. Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]. "General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment." Salvia v. St. Catherine of Sienna Med. Ctr., 84 AD3d 1053, 1054 [2d Dept 2011], citing Heller v. Weinberg, 77 AD3d 622, 623 [2d Dept 2010].

Each party in this case has submitted the affirmation of experts opining on claims of malpractice this case. Each expert is licensed to practice in the State of New York and is board certified in anesthesiology, and their affirmation covers the period leading up to a Code Blue being called for Mrs. Johnson on May 2, 2014, as well as the period that followed.

Defendant's two experts, Drs. Kaufman and Primis, each opine that Schaner and Cranage acted in accordance with the standard of care. Each opines that the plaintiff was properly medicated prior to the Code Blue on May 2; that the defendants were not present in the PACU, nor under any personal duty to monitor the plaintiff until the Code Blue; that the nursing staff of the PACU monitored Mrs. Johnson's vitals in a manner consistent with the standard of care and given her condition at the time; and that once Cranage and Schaner were called during the Code Blue, each acted quickly and in accordance with the standard of care to revive her, and that they stopped further injury from occurring. Finally, they opine that the plaintiff likely sustained her injuries prior to the code being called, and that the defendants, having properly resuscitated her, therefore could not have caused her injuries.

Plaintiff's expert Dr. Mintz disagrees with each of the defendants' contentions. He opines that Mrs. Johnson was improperly given the drug Labetalol, thereby increasing her risk of bradycardia; that she was improperly monitored thereafter, both due to Cranage's allegedly negligent failure to order closer observation, and due to an alleged failure to recognize what he characterizes as concerning vital signs; that the improper monitoring by the PACU nursing staff led to a late discovery of the plaintiff's deteriorating condition, resulting in part of her injury; and that once the Code Blue was called, Schaner and Cranage made substandard efforts to resuscitate Mrs. Johnson, causing her additional injury.

First, parties differ greatly on whether Labetalol was administered, and whether its effects would have required greater attention to the plaintiff. Defendant's experts opine that it is unlikely that the plaintiff was given the antihypertensive drug based on the hospital record, and [*8]that even if it had been given, they opine that she would not have required more frequent monitoring for complications. Drs. Kaufman and Primis each opine that there is no indication in the records that the drug was ever given to Mrs. Johnson, based on its absence from the Medication Administration section of the medical chart. Dr. Primis further opined that a Fellow's Note by Dr. Umesh Mishra, stating that plaintiff had received Labetalol on the evening of May 2, may have been made in error.

Dr. Mintz, on the other hand, opines that the note by Dr. Mishra demonstrates that Labetalol was administered on May 2. He opines that, when CRNA Cranage wrote an order for Labetalol at around 6:56pm on May 2, it was a departure from the standard of care for her not to include instructions for close monitoring of her vitals.

The parties also differ on the appropriateness of the unit's monitoring scheme itself. While both sides agree that checking the plaintiff's vitals at increasing intervals — 15, then 30, then 60 minutes as her condition improves — is acceptable practice, plaintiff's expert opines that Mrs. Johnson's vitals could not be considered stable at the time that the interval for taking her vitals was lengthened to every hour, which should also have been cause for more frequent monitoring than occurred. He also opines that it is the responsibility of the nursing staff to keep patients in the PACU under "direct visual observation" for their entire recovery, and emphasizes that taking vital signs every hour is no substitute for constant visual observation of the patient. He also opines that "[a]n hourly visit, without eyes on the patient in between is a departure from accepted practice," and that it is up to the hospital to provide staff to monitor the patients in the PACU. Dr. Mintz opines that for the nursing staff to have "noticed" that the plaintiff was bradycardic at 30 beats per minute is not acceptable practice, as someone should have been monitoring her the entire time; furthermore, since bradycardia is a progression — it "does not happen instantaneously" — constant monitoring, in his opinion, would have resulted in faster action to treat Mrs. Johnson. He adds, "the hypoxic damage was sustained due to prolonged hypoxia because the patient's cardio- respiratory distress was not noticed promptly."

Defendant's experts each reject Dr. Mintz's contention that constant visual observation of PACU patients is the standard of care. In their opinion, Mrs. Johnson's blood pressure was stable and of little concern prior to the code, and therefore it was proper for the nursing staff to lengthen the interval at which her vitals were being taken to every 60 minutes. Constant observation, Dr. Primis opines, is not the standard of care for a PACU.

Furthermore, he opines that Dr. Schaner and CRNA Cranage, as the on-call anesthesiology team on May 2, were not negligent by not being present in the PACU itself prior to the code. In his opinion, the on-call anesthesiology team is only required to come to the PACU if called; therefore, he opines, Schaner and Cranage met the standard of care by remaining on-call and responding quickly (within approximately one minute, according to the record) when called to the PACU to remedy Mrs. Johnson's deteriorating condition.

As a general matter, the parties agree that at least some of the injury Mrs. Johnson suffered occurred prior to the Code Blue being called the night of May 2; they differ, however, in the portion of the damage suffered before and during the Code. Defendant's experts opine that the moving defendants, upon their arrival in the PACU, acted appropriately to resuscitate Mrs. Johnson, giving her "adequate oxygenation" and preventing further brain damage. They specifically opine that Schaner and Cranage's use of a Bag-Valve-Mask (BVM) to oxygenate the plaintiff — as well as undertaking of laryngoscopies to insert an endotracheal tube to supply the plaintiff with a more consistent source of oxygen — was properly done. This, they opine, was [*9]sufficient to have brought her oxygenation level to the normal range of 90% or greater.

Furthermore, despite the intubation taking several attempts, they opine that these efforts were within the standard of care, as endotracheal tubes of different sizes may be required in order to find one that fits the patient. Because they opine that most of Mrs. Johnson's injury was sustained prior to defendants' response to the plaintiff's Code, they opine that Dr. Schaner and CRNA Cranage could not have been the cause of her injury.

Plaintiff's expert disagrees, and opines that, where a readout of Mrs. Johnson's vitals shows absent oxygenation readings during the time of Mrs. Johnson's cardiac arrest (Exhibit D), she was not being properly oxygenated. He opines that the two missing readings displayed during this period reflect not a normal oxygenation, but rather an oxygenation level that was so low as to be "unrecordable." In Dr. Mintz's opinion, plaintiff's blood oxygenation certainly dropped to 69%, and likely dropped below that during the arrest. An oxygenation this low, he opines, shows that the efforts to resuscitate Mrs. Johnson using BVM were not only substandard, but also that she was not ventilated adequately to keep her oxygenation levels within a normal range, resulting in some of her injuries. He opines further that, had resuscitation efforts been adequate, the measured oxygenation levels would have been "substantially higher." An additional departure from the standard of care, he says, is that it took three attempts to intubate Mrs. Johnson during her Code, which he opines delayed her receiving oxygen, exacerbating her injury.

Furthermore, it is uncontested by the parties and their experts that Schaner and Cranage were the on-call anesthesiology team on May 2. It is undisputed, for example, that Cranage wrote an order for Labetalol for Mrs. Johnson at 6:56pm on that date, and that both defendants were present in the hospital. Therefor the Court rejects the argument that these defendants were either not present or were not responsible for monitoring Mrs. Johnson in the PACU. Whether or to what extent Schaner and Cranage were responsible for monitoring the plaintiff is raised as an issue of fact for a jury.

In summary, plaintiff's and defendants' experts clearly disagree on numerous issues in this case, including the propriety of the medication, monitoring, and resuscitation of Mrs. Johnson, and each side cites evidence in the record to support their opinion. Considering the foregoing conflicting opinions, which are detailed and not speculative, summary judgment is denied as to claims sounding in medical malpractice relating to defendants Schaner and Cranage. See Shields v. Baktidy, 11 AD3d 671, 672 [2d Dept 2004].

Brooklyn Hospital also seeks dismissal of Plaintiff's lack of informed consent claim.

"To succeed in a medical malpractice cause of action premised on lack of informed consent, a plaintiff must demonstrate that (1) the practitioner failed to disclose the risks, benefits and alternatives to the procedure or treatment that a reasonable practitioner would have disclosed and (2) a reasonable person in the plaintiff's position, fully informed, would have elected not to undergo the procedure or treatment (see Public Health Law § 2805-d [1], [3]). Expert medical testimony is required to prove the insufficiency of the information disclosed to the plaintiff (CPLR 4401-a)." Orphan v. Pilnik, 15 NY3d 907, 908 [2010].

However, as expert opinion is not submitted as to this claim, Brooklyn Hospital does not establish a prima facie showing for summary judgment dismissing this cause of action. Therefore, this portion of Brooklyn Hospital's motion is Denied.

Accordingly, Dr. Schaner and CRNA Cranage's request for dismissal of the action as [*10]time-barred is DENIED (Seq. 7). The portion of the motion seeking summary judgment for defendants Schaner and Cranage is DENIED (Seq. 7). The portion of the motion seeking to dismiss the claims asserted on behalf of Ansel Johnson is GRANTED as time-barred (Seq. 7).

The motion of Brooklyn Hospital for summary judgment based on its vicarious liability for its staff is DENIED (Seq. 6). The portion of the motion of Brooklyn Hospital to dismiss plaintiff's claims for lack of informed consent is DENIED (Seq. 6). The potion of the motion on behalf of Defendants Martindale and Homsi are granted without opposition and the action is dismissed as against them (Seq. 6). The portion of the motion seeking summary judgment on behalf of Defendant Dergan and Defendant Mishra is moot as the action has been discontinued against them (Seq. 6).

This constitutes the Decision and Order of the Court.

Dated: August 14, 2023
Hon. Consuelo Mallafre Melendez

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