Notice of Motion (Seq. 001) 1 Notice of Motion (Seq. 002) 2 Notice of Motion (Seq. 003) 3 Affirmation in Opposition 4 Affirmation in Reply 5-7 Upon the foregoing papers, the motions of the defendants, Alan Wong, D.O and Mercy Medical Center (Seq. #001), Nenad Grlic, D.O. and Long Island Emergency Medical Care, P.C. (Seq. #002) and Abiola Familusi, M.D. (Seq. #003), each seeking an Order granting summary judgment dismissing the complaint of plaintiff, Prenneice Pichardo, are determined as set forth below. This action seeks monetary damages due to the alleged negligence and medical malpractice caused by defendants in failing to properly treat and care for plaintiff related to an intubation procedure, while under the defendants’ care and treatment from on or about May 5, 2013 and continuing through on or about May 17, 2013. Plaintiff alleges in her complaint that the defendants were negligent and departed from the accepted standard of care in failing to properly treat plaintiff, resulting in serious permanent injuries. Seq. #001 In support of their motion, defendants, Alan Wong, D.O. and Mercy Medical Center (hereinafter “Dr. Wong” and “MMC” respectively) submit, inter alia, copies of the pleadings, plaintiff’s verified bill of particulars, the transcripts of deposition testimony of plaintiff, Dr. Wong, Dr. Grlic and Vanessa Mullings-Jones, R.N., on behalf of MMC, and a certified copy of the MMC chart of care and treatment rendered by defendants. Defendants also submit the physician expert affirmation of Andrew B. Leibowitz, M.D. (hereinafter “Dr. Leibowitz”). These defendants contend that the applicable standard of care was followed for the treatment of plaintiff, and therefore, any alleged departures from good and accepted medical practice were not the proximate cause of plaintiff’s claimed injuries. These defendants also assert that the claim specific to informed consent should be dismissed because Dr. Wong did not perform the procedure nor was he present when the plaintiff’s tracheal intubation was performed. Lastly, these defendants contend that the plaintiff’s theory of res ipsa loquitor does not apply to the instant defendants, asserting that the mere happening of an event following a medical treatment that is out of the ordinary does not give rise to application of this doctrine. Dr. Leibowitz submits his affirmation on behalf of the defendants upon a review of the plaintiffs’ bills of particulars, the medical records of plaintiff’s treatment at MMC and the deposition transcripts of all parties. Dr. Leibowitz is a physician Board Certified in internal medicine and anesthesiology and a critical care specialist, who opines that Dr. Wong and MMC acted appropriately in their care and treatment of plaintiff, wherein Dr. Wong acted as a critical care specialist in his consult of the plaintiff for respiratory failure, after intubation for airway protection and sedation. Regarding plaintiff’s claims related to her tracheal intubation, Dr. Leibowitz states that said claims are not indicated and that the performance of the procedure itself is inapplicable to Dr. Wong, who did not perform the intubation, and was not present when the intubation was performed. Dr. Leibowitz opines that the intubation was necessary as the patient had multiple uncontrolled seizures, abnormal vital signs and was obtunded and lethargic, requiring airway protection so that aspiration, lung injury and possible death did not ensue. Dr. Leibowitz’s affirmation states that based upon the fact that the plaintiff was making a gurgling noise, which is indicative of airway compromise and proceeds aspiration and lung injury, the tracheal intubation should have been performed. Dr. Leibowitz states in his affirmation that the nursing staff at MMC properly documented plaintiff’s condition in the hospital chart and that there is no documentation in plaintiff’s hospital chart that there was any issues with the tracheal intubation, or that more than one attempt occurred, opining that the use of a laryngeal mask airway, combitude or cricothyroidotomy would have been a significant deviation form the standard of care and more hazardous than tracheal intubation. Regarding plaintiff’s extubation, Dr. Leibowitz states that Dr. Wong appropriately did not consider extubation as neurology, neurosurgery and infections disease were still evaluating the patient for possible further testing and interventions, and the pending results of plaintiff’s MRI, of which intubation and ventilation would be required to manage brain pathology. Dr. Leibowitz states in his affirmation that there is no indication that the plaintiff could have or should have been extubated prior to May 8, 2013, that a tracheal intubation for less than 72 hours is rarely injurious, and that extubating is not considered until a patient is tracheally intubated for at least 7 to 10 days. Seq. #002 In support of their motion, defendants, Nenad Grlic, D.O. and Long Island Emergency Medical Care, P.C. (hereinafter “Dr. Grlic” and “Long Island” respectively) submit, inter alia, copies of the pleadings, plaintiff’s verified bill of particulars, the transcripts of deposition testimony of plaintiff, Dr. Wong, Dr. Grlic and Vanessa Mullings-Jones, R.N., on behalf of MMC, and a certified copy of the MMC chart of care and treatment rendered by defendants. Defendants also submit the physician expert affirmation of Gregory Mazarin, M.D. (hereinafter “Dr. Mazarin”). Defendants, Dr. Grlic and Long Island contend that the applicable standard of care was followed for the treatment of plaintiff, and that any alleged departures from good and accepted medical practice were not the proximate cause of plaintiff’s claimed injuries. These defendants also assert that since no injuries to the plaintiff’s trachea was caused by Dr. Grlic’s intubation, defendant Long Island cannot be held vicariously liable where no liability it imparted to Dr. Grlic. Dr. Mazarin submits his affirmation on behalf of the defendants upon a review of the plaintiffs’ bills of particulars, the medical records of plaintiff’s treatment at MMC and the deposition transcripts of plaintiff, Dr. Grlic and Vanessa Mullings-Jones. Dr. Mazarin is a physician Board Certified in emergency medicine, who opines that Dr. Grlic did not depart from good accepted medical practice in rendering care and treatment through intubation based upon inter alia, plaintiff exhibiting sonorous breathing as indicative of losing control of her airway, elevated PCO2 as indicative that plaintiff was not ventilating properly, and plaintiff’s diminished gag reflex. Dr. Mazarin states in his affirmation that it is common to intubate patients who present with status epilepticus, as plaintiff did on the subject dates of treatment, and that Dr. Grlic’s administration of Ativan and Dilantin prior to plaintiff’s intubation was appropriate to try and stop the seizure activity. Dr. Mazarin opines that Dr. Grlic chose the appropriate paralytic agent and dosage of same prior to intubating plaintiff, employed proper technique and methods to intubate plaintiff and placed the endotracheal tube at the appropriate level. In Dr. Mazarin’s opinion, Dr. Grlic performed a proper post intubation evaluation of plaintiff to confirm placement of the endotracheal tube. The affirmation of Dr. Mazarin states that in his opinion, it would be impossible of the plaintiff, given the medications and postictal state to be awake or alert to know what was happening during Dr. Grlic’s performance of the intubation. Seq. #003 In support of his motion, defendant, Abiola Familusi, M.D. (hereinafter “Dr. Familusi”) submits, inter alia, copies of the pleadings, plaintiff’s verified bill of particulars, plaintiff’s supplemental verified bill of particulars, the transcripts of deposition testimony of plaintiff, Dr. Wong, Dr. Grlic and Vanessa Mullings-Jones, R.N., on behalf of MMC, and a certified copy of the MMC chart of care and treatment rendered by defendants. Defendant also submits the physician expert affirmations of Dr. Familusi and Dr. Mazarin. Dr. Familusi contends that the applicable standard of care was followed for the treatment of plaintiff, and therefore, any alleged departures from good and accepted medical practice were not the proximate cause of plaintiff’s claimed injuries. Dr. Familusi’s affirmation states that he first became involved in plaintiff’s care on May 7, 2013 at 8:10 p.m. and at that time plaintiff was intubated and admitted to the ICU and being consulted on by various specialists including critical care, infectious disease, neurology and neurosurgery to rule out brain pathology. Dr. Familusi states in her affirmation that at that time there was no indication to make any recommendation for extubation, and that he was not present nor involved in any way with the decision to extubate. In his affirmation regarding to Dr. Familusi, Dr. Mazarin states that he rendered his opinion based upon a review of plaintiffs’ bill of particulars, supplemental bill of particulars, the deposition transcripts of all parties and the records of MMC. In his affirmation, Dr. Mazarin opines that Dr. Familusi documented only one note regarding plaintiff, that he and other medical attendings would assume plaintiff’s medical care from the hospitalist, Dr. Collen Daly. In Dr. Mazarin’s opinion, Dr. Familusi did not depart from accepted standards of medical care in treating plaintiff as there is no record that any treatment was made by this doctor that contributed to or caused injury to plaintiff. Plaintiff’s opposition to instant motions Plaintiff submits opposition to the instant motions regarding Dr. Grlic, Long Island, based upon vicarious liability, and MMC, based upon the Mduba doctrine. In support of its opposition, plaintiff submits, inter alia, the Affidavit of Preston E. Freeman (hereinafter “Freeman”), brother of the plaintiff, and the physician affirmation of plaintiff’s expert (hereinafter “plaintiff expert”). The Freeman affidavit states that he is plaintiff’s brother and that on May 5, 2013 he arrived at the emergency department when plaintiff was in a small area behind curtains being attended to by medical personal. Freeman attests that he heard a “great deal of commotion and was able to observe several medical people and a doctor through the curtains” and the he “was able to observe and hear the doctor and medical personnel having a great deal of difficulty in intubating her and heard them say that they were encountering difficulty and that they would have to redo the procedure.” Freeman states in his affidavit that he went into the area and observed the plaintiff and saw “tape coming off and what appeared the tube coming out” and “thereafter I observed them have several more attempts at intubating her.” The physician affirmation of plaintiff’s expert states that he is board certified in the field of anesthesia and is based his opinion on a review of included medical records, depositions and relevant legal document regarding the plaintiff. The plaintiff’s expert opines in his physician affirmation that Dr. Grlic attempted to intubate plaintiff although she was seizing, and that the medical records are blank regarding the number of attempts made to intubate plaintiff. In plaintiff expert’s opinion, Dr. Grlic encountered difficulty because he used a metal stylet glide scope with a polyurethane sleeve prior to administering a paralytic agent to plaintiff and that the injury of tracheal stenosis present in plaintiff would not develop in a patient absent traumatic intubation. In the opinion of plaintiff’s expert, since plaintiff was having seizures presenting a difficult airway, acceptable practice would have been to request an anesthesiologist to intubate plaintiff and that Dr. Glric departed from acceptable care in not doing so, resulting in trauma to plaintiff’s trachea and causing tearing of the mucosa. “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 (see Gross v. Friedman, 73 N.Y.2d 721, 722-723, 535 N.Y.S.2d 586, 532 N.E.2d 92; Heller v. Weinberg, 77 A.D.3d 622, 909 N.Y.S.2d 477; Myers v. Ferrara, 56 A.D.3d 78, 83, 864 N.Y.S.2d 517; Musiaro v. Clarkstown Med. Assoc., 2 A.D.3d 698, 768 N.Y.S.2d 665).” Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 [2d Dept. 2011]. The proponent of a summary judgement motion “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]). Once the movant has demonstrated a prima facie showing of entitlement to judgement, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of a fact which require a trial of the action. (Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S. 2d 593 [1980]). In the present case, the defendants, Dr. Wong, MMC, Dr. Grlic, Long Island, and Dr. Familusi, have made a prima facie showing of entitlement to summary judgment, based upon the submitted expert medical opinions of Dr. Leibowitz and Dr. Mazarin that defendants did not deviate from accepted standards of professional care. Regarding defendants, Dr. Wong and Dr. Familusi, plaintiff, without opposition, fails to provide admissible proof to raise a triable issue of fact precluding summary judgment. Accordingly, summary judgment is granted as to these defendants. Regarding the remaining defendants, MMC, Dr. Grlic, and Long Island, upon this Court’s consideration of plaintiff expert’s physician affirmation, plaintiff fails to raise a triable issue of fact with respect to whether there was a departure from accepted medical practice. The opinions and conclusions of the plaintiff expert are not supported by the facts of the instant case set forth in Dr. Grlic’s testimony and the hospital record of treatment of plaintiff regarding the tracheal intubation and treatment post-intubation. Contrary to the opinions set forth in the plaintiff’s expert’s affirmation, the testimony of Dr. Grlic and the hospital records indicate that plaintiff was not seizing at the time intubation was performed, that proper sedative medications were administered prior to the procedure, and that a plastic glide scope was utilized during intubation. This Court also notes that the surgical report of Dr. Glassman, included in plaintiff’s opposition papers is not complete or certified. In as much a plaintiff expert failed to respond to relevant issues raised by defendants’ experts, the plaintiff expert’s affirmation is conclusory and speculative, and insufficient to raise a triable issue of fact. See, Ahmed, v. Pannone, 116 A.D.3d 802, 984 N.Y.S.2d 104, (2d Dept. 2014). Likewise, the Affidavit of plaintiff’s brother, fails to raise a triable issue of fact, as to whether what he observed was a deviation of accepted medical practice, given the lack of any medical expert opinion and the absence of any complete direct observations of the plaintiff’s procedure of intubation. Accordingly, the motion of the defendants, Alan Wong, D.O and Mercy Medical Center (Seq. #001), is granted; the motion of defendants, Nenad Grlic, D.O. and Long Island Emergency Medical Care, P.C. (Seq. #002) is granted; and the motion of Abiola Familusi, M.D. (Seq. #003), is granted. This constitutes the decision and Order of this Court. Any request for relief not expressly granted herein is denied. Dated: October 2, 2019
