DECISION and ORDER Before the Court is the motion of the Defendant Robin Goldberg, M.D. (the Defendant or Defendant Doctor) seeking an order from the Court pursuant to CPLR §3212 granting summary judgment against the Plaintiff James Davis and dismissing in its entirety the Plaintiffs action alleging medical malpractice against the Defendant. The Court has reviewed the submissions of the parties, as posted under NYSCEF Index No. 64768/2017, filed in support of and in opposition to the motion of the Defendant. Upon due consideration it is the decision of the Court that the Defendant’s motion be granted. The Plaintiff’s action alleging medical malpractice arises from a laparoscopic appendectomy performed by colo-rectal surgeons at Lawrence Hospital (the Hospital) on April 28, 2017, and arises from the post operative treatment of the Plaintiff between April 28, 2017 and May 7, 2017 by the Critical Care Unit (CCU or ICU) in conjunction with the Defendant Goldberg. The CCU/ICU, post operatively, was tasked with overseeing the Plaintiffs recovery from the surgery, and was tasked with administering treatment. During the surgery on April 28 2017, a laceration of Plaintiff’s mesenteric artery occurred, creating significant internal bleeding that required emergency intervention by a board certified vascular surgeon (VS), Dr. Eric Fishman, who was available to the Hospital as an on-call respondent. Along with additional help from a second vascular surgeon, Dr. Richard Schutzer, the two VS doctors were able to stop the bleeding. They then performed full inspection of the abdomen and determined that all bleeding had been controlled, i.e., “Hemostasis [was] achieved.” The surgery having concluded late on April 28, 2017, the Hospital transferred Plaintiff to the Intensive Care Unit (ICU or CCU) for recovery. The Plaintiff was intubated and was evaluated as being in a critical, but stable, condition. See, Operative Report, Exhibit M, p. 424 and p. 432. Over the next nine days (April 27 to May 7, 2017), the Plaintiff was monitored, examined and treated in the ICU area by various physicians. The Defendant Dr. Goldberg was one of the physicians, a board certified invective disease physician (IDD) and a practicing IDD consultant at the Hospital at the time of the Plaintiffs surgery and transfer to the ICU. On April 30, 2017, she was asked to come to the Hospital ICU to see the Plaintiff, and provide care and treatment because of an elevated white blood cell count (a/k/a leukocytosis and/or WBC). On the Defendant Doctor’s patient record for that day, she noted symptoms of possible sepsis based upon, inter alia, the elevated WBC count, the elevated lactic acid level, ‘ temperature and heart-rate changes, and end-organ damage. At the time of the April 30th visit, Dr. Goldberg believed that the Plaintiff had a post operative respiratory issue and that there had been SMA (superior mesenteric artery) injury. Despite prior use of broad spectrum antibiotic treatment (zosyn and fluconazole) Dr. Goldgerg noted that the Plaintiff continued to have leukocytosis (high WBC count). In the April 30, 2017 physical exam of the Plaintiff, Dr. Goldberg noted abnormal lab test results indicative of infection or inflamation. She decided to continue the antibiotic treatment. Goldberg EBT at pp. 44-53. The Defendant Doctor’s next ICU visit to the Plaintiff was on the following day, May 1, 2017. The Plaintiff had been extubated. However, shortage of breath was noted which could have been an indication of worsening inflamation and infectious process. Accordingly, flagyl (medicine) was added to Plaintiff’s treatment because of the potential need to cover and address infectious spread that may have occurred from prior intra-abdominal procedures. Later in that day, on examination, the Plaintiff complained of not getting enough air. He also reported minimal abdominal pain, however the Defendant noted that the Plaintiff’s abdominal pain was not an abnormal finding after surgery (which had occurred on April 28, 2017). On May 1, 2017, Dr. Goldberg undertook a physical exam of the Plaintiff. Her findings showed no oral lesions, no adenopathy (swollen glands or lymph nodes), and normal cardiovascular sounds in the heart (side 1 and side 2). However as to decreased breath sounds in the chest, Dr. Goldberg noted it could be associated with his post operative condition. Goldberg EBT at pp. 58-68. The Plaintiff’s belly was soft, and distended with mild tenderness. The bowels had no peristalsis, and had no “ileus” or small bowel blocking which would cause the bowel not to work correctly. Dr. Goldberg stated that the abdomen distention was not an abnormal finding. Goldberg EBT at pp. 58-68. The Defendant Doctor returned to the Hospital the next day, May 2, 2017. She reviewed the Plaintiff’s progress note. Mild abdominal cramping was recorded. The Plaintiffs stool was maroon in color which, as stated by the Defendant Doctor, “…generally indicates some form of gastrointestinal bleeding.” In addition, there was distended abdomen, an indication of some intra-abdominal process. A liver function transaminase test (AST) showed increase to 93 mean and stated “Rising bilirubin1 this a. m. prior to GI (gastro-itestinal).” Dr. Goldberg concluded that the patient was having a gastro-intestinal bleed. Goldberg EBT at pp. 70-73. In the “Assessment and Plan” part of the progress note, it was stated that there was: Leukocytosis despite no fevers. No obvious source of leukocytosis. Would consider discontinuing antibiotics in one or two days if no significant change and reevaluate off coverage. Goldberg EBT at p.73. Dr. Goldberg conducted further examination of the Plaintiff’s progress on May 4, 2017. The Plaintiff had been removed from the CCU May 3, 2017 but was transferred back to CCU on May 4, 2021. According to the report, the Plaintiff had increased shortness of breath and slight increase in body temperature. It was concluded that his condition had worsened and was declining. Goldberg EBT at p. 81. A CAT scan study with angiogram was conducted. The findings showed no central pulmonary embolism, but did show small bilateral pleural effusions (fluid in the plural space on both sides) with suspected bilateral atelectasis (air pockets within the pulmonary parenchyma), moderate ascites (fluid within the peritoneal cavity). The Plaintiff also underwent abdominal arterial ultrasound. It showed evidence of diffuse liver disease, steatosis, mild ascites (fluid within the peritoneal cavity). Goldberg EBT at pp. 84-86. There was also a switch from Zosyn antibiotic to imipenem. This was done because of the Plaintiff’s elevated amylase and lipase which was an indication of pancreatitis. The imipenem was an antibiotic that (according to the Defendant) has shown reduction in morbidity in patients with pancreatitis. Goldberg EBT at pp. 86-88. As to the general responsibilities of an IDD specialist, the Defendant listed a number of responsibilities including; (1) evaluation of patients potentially affected with infections, and; (2) the treatment of the infections found on positive culture studies. Specialists also take notice of the presence and impact in patients of elevated fever, elevated or lowered temperature, elevated respiratory rate, and hypotensive blood pressure. Goldberg EBT at pp. 90-91. In the instant matter, May 4, 2017 was the last date of treatment and monitoring of the Plaintiff by Dr. Goldberg. Summary judgment is generally not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, since conflicting expert opinions (usually) raise credibility issues which can only be resolved by the jury or fact finder. Pinnock v. Mercy Med. Ctr, 180 A.D.3d 1088, 1090, 119 N.Y.S.3d 559 (2d Dep’t 2020); Feinberg v. Felt, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 (2d Dep’t 2005). However, “expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact.” Wagner v. Parker, 172 A.D.3d 954, 955, 100 N.Y.S.3d 280 (2d Dep’t 2019); also see, Diaz v. N.Y. Downtown Hosp., 99 N.Y,2d 542, 544 (2002)(“[w]here the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation,…[his or her] opinion should be given no probative force and is insufficient to withstand summary judgment”). “In order not to be considered speculative or conclusory, expert opinions-in opposition should address specific assertions made by the movant’s experts, setting forth an explanation of the reasoning and relying on ‘specifically cited evidence in the record’” (Tsitrin v. New York Community Hosp., 154 AD3d 994, 996 [2017], quoting Roca v. Perel, 51 AD3d 757,759 [2008]). “An expert opinion that is contradicted by the record cannot defeat summary judgment” (Bartolacci-Meir v. Sassoon, 149 AD3d 567, 572 [2017]), Lowe v. Japal, 170 A.D.3d 701, 702-03, 95 N.Y.S.3d 363 (2019). Expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact (see Bowe v. Brooklyn United Methodist Church Home, 150 AD3d 1067,. 1068 [2017]; Kerrins v. South Nassau Communities Hosp., 148 AD3d 795, 796 [2017]; *703 Spiegel v. Beth Israel Med. Ctr.-Kings Hwy. Div., 149 AD3d 1127, 1128 [2017]). These are the issues on the motion before this Court. In the instant matter, there are three unnamed experts retained by the Plaintiff who have submitted affirmations in support of their respective conclusions on the question of departure from standard of care by the Defendant Dr. Goldberg. Nevertheless the focus of the unnamed experts is very narrow. They raise questions limited to the presence or absence of a differential diagnosis on the part of the Defendant Doctor. However, there is lack of a factual basis for the unnamed experts’ conclusions of a departure by Dr. Goldberg from the standard of care. Essentially, their presented facts do not, as presented, support their stated conclusions. The first unnamed “Critical Care Specialist” (CCS) expert is presented as “board certified in Internal Medicine…and pulmonary disease.” A Pulmonologist commonly treats asthma, chronic obstructive lung disease (COPD), emphysema, lung cancer, complex lung and pleural infections such as tuberculosis, pulmonary hypertension and cystic fibrosis diseases. An Internist generally sees patients with conditions such as heart disease, hypertension, diabetes, and chronic lung disease. However none of these illnesses and conditions are part of the instant cause of action filed by the Plaintiff and these areas are not addressed by the CCS expert. The focus of the CCS expert on the standard of care “…relates to treating of patients with presumed or suspected bowel ischemia….” Thus the conclusions of the CCS expert rely completely on an assumption of “presumed or suspected bowel ischemia” on the part of the treating physicians who, according to the CCS expert, failed to adequately explore the presence of ischemia. See, CCS Affirmation at 3. As the expert readily admits, however, mesenteric ischemia is a diagnosis of exclusion, not a diagnosis of inclusion. This approach ignores the fact that the Plaintiff’s symptoms reported by the IDD specialist (the Defendant), while not excluding or establishing possible ischemia, presented critical evidence of infection symptoms (such as pancreatitis) that needed immediate direct treatment, as opposed to either finding evidence of the presence of mesenteric ischemia or finding the lack thereof. This fact is either ignored or simply discounted by the CCS expert. The physicians who were targets of criticism by the CCS expert are listed in the Affirmation simply as “the ICU Defendants.” They are marked as the physicians who “deviated from accepted standards of care in their treatment of James Davis (the Plaintiff).” These “ICU Defendants,” according to the unnamed CCS expert, “each individually failed to respond to Mr. Davis’ manifested signs and symptoms of bowel ischemia in a timely manner” and “this departure was a direct and proximate cause of Mr. Davis’s injuries including his need for a bowel resection.” What “each,” physician individually or collectively did, or did not do, that departed from the standards of care, is nowhere stated other than concluding that these “physicians” should have stopped their own efforts to diagnose, evaluate and treat the Plaintiff as they did, and they should simply have assumed that the problem was bowel ischemia. Whether this would have been possible cannot be affirmatively declared or even assumed in as much as the absence (not the presence of bowel ischemia) might have been the result. But assuming bowel ischemia was found to be present (as did NYPCU) there is no way to affirm that Lawrence Hospital could have promptly undertake repair procedures, that would have avoided resection. There were many exhibited symptoms listed in the Plaintiffs case reports that were recorded by ICU physicians each day. “Each” physician individually or collectively undertook consultations, examination, and/or treatment of the Plaintiff. The CCS expert goes on to state that” [h]ad the Defendants timely responded to Mr. Davis’s complaints, signs and symptoms, it is more likely than not that he would have received treatment in the form of a repair procedure.” CCS Affirmation at
