A state appeals court has ruled that a medical malpractice action claiming an anesthesiologist's administering of a sedative led to a woman developing pain syndrome should be dismissed based on strong defense expert evidence juxtaposed with “conclusory assertions” from the plaintiff's experts.

A unanimous Appellate Division, First Department, panel has thrown out plaintiff Diane Rivera's malpractice suit. Rivera alleged she developed complex regional pain syndrome during podiatric surgery due to one anesthesiologist's administration of sedation and a separate anesthesiologist and pain management specialist's subsequent treatment.

The panel's opinion reversed Bronx Supreme Court Justice Stanley Green's 2016 decision denying summary judgment to the defendants, which included New York Pain Care Center, Manhattan Medical Suite and at least two physicians: an anesthesiologist referred to in the decision as Aznavoorian and an anesthesiologist and pain management specialist referred to as Hosny.

The justices, in Rivera v. New York Pain Care Center, 310866/11, cited expert evidence—or lack thereof—on both sides of the case. They first credited the defendants for establishing “prima facie entitlement” to summary judgment using expert affirmations, deposition transcripts and medical records.

“These showed that the initial and subsequent administrations of propofol, an anesthetic administered intravenously, were uneventful and successful in sedating plaintiff, that there was no infiltration of propofol into the tissues surrounding the IV site on plaintiff's hand, that plaintiff had a venous reaction to the IV, that propofol could not have caused the alleged injury, and that the post-operative care rendered was appropriate,” Justices David Friedman, Sallie Manzanet-Daniels, Barbara Kapnick, Cynthia Kern and Anil Singh wrote.

By contrast, Rivera's experts offered “only conclusory assertions and speculation that there were departures from the standard of care,” the panel said.

For instance, they wrote, an expert “offered no opinion as to the amount of propofol that could have infiltrated [Rivera's] tissues and set forth no medical or scientific evidence to support the proposition that such an amount could have caused CRPS.” The panel added that “plaintiff's treating pain physician admitted that CRPS could have been caused 'from a needle stick absent the exposure to any chemical,' for which there are no known preventative measures.”

The defendants' counsel, Peter Taglia of Dwyer & Taglia in Manhattan, said on Wednesday that he thought the panel's decision was “an excellent analysis of a very complicated case, because there were many issues, and the court could have easily said let's just leave it for a jury, or go ahead with a Frye hearing.”

Rivera's counsel at the Law Office of David S. Klausner could not be reached for comment.