The following e-filed documents, listed by NYSCEF document number (Motion 004) 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION Upon the foregoing papers, defendant, Henry Tannous, M.D. (“Dr. Tannous”), moves for an order pursuant to CPLR §3212, seeking summary judgment and dismissal of the plaintiffs’ complaint, and any cross-claims.1 The complaint contains causes of action for medical malpractice, negligent supervision and loss of services.2 Plaintiffs oppose the motion. BACKGROUND Plaintiffs commenced the underlying action sounding in causes of action for medical malpractice, negligent supervision and loss of services against PRASAD ADUSUMILLI, M.D.,3 DANIELA MOLENA, M.D., MEMORIAL SLOAN KETTERING CANCER CENTER, RAJEEV PATEL, M.D., HENRY TANNOUS, M.D., and ALPA DESAI, M.D. The action arises from the care and treatment rendered to plaintiff’s decedent, Kevin Reilly (“Reilly”), when he presented on February 26, 2017 to Stony Brook Hospital (“Stony Brook”), with complaints of difficulty breathing, nausea, vomiting and coughing up blood (hemoptysis). Reilly had been discharged from Memorial Sloan Kettering Cancer Center (“MSK”), on February 25, 2017, after undergoing an Ivor-Lewis esophagectomy, a surgical procedure to remove esophageal cancer, on February 14, 2017. The procedure involved removal of the lower two-thirds of Reilly’s esophagus, leaving the remaining portion of esophagus substantially shortened and disconnected from part of the stomach. Using surgical staples, a procedure known as an anastomosis was performed to reconnect the esophagus to the stomach. The anastomosis was positioned in the upper portion of the chest. After the procedure, an anastomotic leak was diagnosed, and chest tubes were inserted for fluid collection. An anastomotic leak generally refers to a condition where some of the staples forming the area of the reconnection between the esophagus and stomach are coming out, or some portion of tissue is to be held together by stapling that has begun to break down, effectively creating a hole in the esophagus. The leak was assessed as small and “contained”, and the surgeons’ impressions were that the leak would heal on its own without the need for surgery. The discharge plan included nutrition via a “J-tube” (a feeding tube in Reilly’s abdomen), antibiotics, and followup at MSK three days after discharge. Upon Reilly’s arrival at Stony Brook on February 26, 2017, the treating physicians recorded that Reilly had undergone esophageal surgery at MSK on February 14, 2017, and had a known history of anastomotic leak, which was initially believed to be stable. Based on the severity of Reilly’s symptoms, a cardiothoracic surgery consult was requested to “rule out leak.” On February 26, 2017, Dr. Tannous, a board-certified Cardiothoracic Surgeon who was on call that day, evaluated Reilly along with Dr. Sagar Mulay (“Dr. Mulay”), a Cardiothoracic resident. Dr. Mulay’s note referred to Reilly’s February 14, 2017 surgical procedure, the postoperative diagnosis of an anastomotic leak, and Reilly’s presenting symptoms, which included hemoptysis. It was recommended by Dr. Mulay that a gastrografin/barium swallow (also referred to as an esophagram) be performed to evaluate the anastomotic leak, and that Reilly be transferred back to MSK. Dr. Tannous countersigned Dr. Mulay’s note, and wrote an addendum stating that he agreed with Dr. Mulay’s plan, and “[w]ill follow for esophagram result.” At his deposition, Dr. Tannous testified that he did not follow up on the esophagram, and had no further involvement with Reilly’s care after the consult. Reilly’s treating physician, Dr. Patel, canceled the test ordered by Dr. Tannous after consulting with the physicians at MSK about Reilly’s rapidly deteriorating respiratory condition. In place of the esophagram, Dr. Patel planned to do a low-dose CT with barium oral contrast when Reilly’s condition stabilized. Reilly was admitted to the Medical Intensive Care Unit at Stony Brook, and underwent endoctracheal intubation. Reilly’s condition worsened over the next two days. On February 27, 2017, defendant Alpa Desai (“Dr. Desai”), a Pulmonary /Critical Care attending physician, was aware that the gastrografin/barium swallow ordered by Dr. Tannous had not been done, and it was noted that any additional testing, including the esophagram, were on hold until Reilly was evaluated at MSK. On February 28, 2017, Dr. Desai performed a bronchoscopy and discovered that fistulas had developed from the anastomotic leak at the surgical site, causing bilious material to drain into Reilly’s bronchi, pleural space, and lungs. It is alleged that the leakage of this material led to necrosis of Reilly’s lung tissue and stomach. After conducting the bronchoscopy, Dr. Desai communicated her findings to the MSK surgical team, and on March 1, 2017, Reilly was transferred back to MSK. After a further bronchoscopy was conducted at MSK, it was determined that surgery was necessary. On March 2, 2017, surgery was performed, and based on the extent of necrotic lung and stomach tissue, nearly two-thirds of Reilly’s right lung and his entire stomach were removed. A feeding tube was inserted into his abdomen, and Reilly was given supplemental oxygen, both of which were required until plaintiff’s death. The within motion for summary judgment was made on March 1, 2022, and filed by plaintiffs within sixty days of the filing of the note of issue and certificate of readiness for trial. DISCUSSION “To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff’s injury” (Frye v. Montefiore Med. Ctr., 70 AD3d 15, 24 [1st Dept 2009]; see Roques v. Noble, 73 AD3d 204, 206 [1st Dept 2010]; DeFilippo v. New York Downtown Hosp., 10 AD3d 521, 522 [1st Dept 2004]). A defendant physician moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by establishing the absence of a triable issue of fact as to his or her alleged departure from accepted standards of medical practice (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Frye v. Montefiore Med. Ctr., 70 AD3d at 24), or by establishing that the plaintiff was not injured by such treatment (see McGuigan v. Centereach Mgt. Group, Inc., 94 AD3d 955 [2d Dept 2012]; Sharp v. Weber, 77 AD3d 812 [2d Dept 2010]; see generally Stukas v. Streiter, 83 AD3d 18 [2d Dept 2011]). To satisfy this burden, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Shirley v. Falkovsky, 207 AD3d 679 [2d Dept 2022]; Roques v. Noble, 73 AD3d at 206; Koi Hou Chan v. Yeung, 66 AD3d 642 [2d Dept 2009]). If the expert’s opinion is not based on facts in the record, the facts must be personally known to the expert and, in any event, the opinion of a defendant’s expert should specify “in what way” the patient’s treatment was proper and “elucidate the standard of care” (Ocasio-Gary v. Lawrence Hosp., 69 AD3d 403, 404 [1st Dept 2010]). Furthermore, to satisfy his or her burden on a motion for summary judgment, a defendant must address and rebut specific allegations of malpractice set forth in the plaintiff’s bill of particulars (see Wall v. Flushing Hosp. Med. Ctr., 78 AD3d 1043 [2d Dept 2010]; Grant v. Hudson Val. Hosp. Ctr., 55 AD3d 874 [2d Dept 2008]; Terranova v. Finklea, 45 AD3d 572 [2d Dept 2007]). Once defendant establishes prima facie entitlement to judgment as a matter of law, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert’s affidavit or affirmation attesting to a departure from accepted medical practice and opining that the defendant’s acts or omissions were a competent producing cause of the plaintiff’s injuries (see Roques v. Noble, 73 AD3d at 207; Landry v. Jakubowitz, 68 AD3d 728 [2d Dept 2009]; Luu v. Paskowski, 57 AD3d 856 [2d Dept 2008]). In the case at bar, the gravamen of plaintiff’s claim against Dr. Tannous, is that he departed from the standard of care in conducting the Cardiothoracic surgical consult at Stony Brook. As a consulting surgeon, plaintiffs allege that Dr. Tannous was required to determine a differential diagnosis, and develop a plan for further workup and management of Reilly’s condition. Plaintiffs allege that based on Reilly’s known history of having an anastomotic leak, and symptoms of deterioration prior to and upon arrival at Stony Brook, it should have been apparent to Dr. Tannous that the leak was worsening, and he was obligated to follow-up on the results of the initial testing, and to inform other treating physicians at Stony Brook to contact him with the test results. Plaintiffs claim that had Dr. Tannous properly performed his role, the developing fistulas caused by the anastomotic leak would have been diagnosed on February 26, 2017, the same day as his consult, and that the delay in diagnosis from February 26, 2017 to February 28, 2017, allowed the fistulas to increase in size, resulting in more extensive damage to Reilly’s lungs and stomach. In support of the motion for summary judgment, Dr. Tannous submits the affirmation of his medical expert, Dr. Steve Salzman, who is board certified in Internal Medicine, Pulmonary Diseases and Critical Care Medicine. Dr. Salzman’s expert opinions are based on a review of the pleadings, deposition testimony of the plaintiffs, and Drs. Adusumilli, Molena, Correa, Patel Desai and Tannous, as well as Reilly’s medical records. Dr. Salzman opines, to a reasonable degree of medical certainty, that based on Reilly’s history of recent surgery which included a recent esophageal surgery with anastomosis, and a post-operative anastomotic leak, Dr. Tannous properly recommended a gastrografin/barium esophagram, which if performed, would have diagnosed the extent of the leak and whether a fistula was present. Dr. Tannous was not informed by Dr. Desai, or the other treating physicians at Stony Brook, that the esophagram ordered by him had been canceled. According to Dr. Salzman, Dr. Tannous was informed by Emergency Room personnel at Stony Brook that Reilly had been accepted for transfer back to MSK. He was not told that there was a delay in transferring the decedent to MSK due to lack of available beds, or that decedent had been admitted to the Medical Intensive Care Unit at Stony Brook. Further, Dr. Tannous was not in communication with any of Reillly’s medical providers at MSK, and decedent’s name did not appear on the resident’s list for Cardiothoracic Surgery follow-up. Dr. Salzman opines, with a reasonable degree of medical certainty, that based on the foregoing, Dr. Tannous reasonably believed that Reilly’s transfer to MSK was imminent or had already taken place, and that there was no need for Dr. Tannous to communicate with the surgical team at MSK. Dr. Salzman opines, with a reasonable degree of medical certainty, that based on the foregoing, that plaintiffs’ claims, inter alia, that Dr. Tannous failed to adequately, fully, accurately and timely communicate with members of the surgical team at MSK about Reilly’s condition; failed to promptly recommend and/or facilitate urgent transfer of Reilly to a more specialized surgical facility or MSK; failed to provide visiting privileges to the surgical team at MSK; failed to adequately consider and/or follow directives and recommendations of the surgical team at MSK; failed to provide medical records and/or imaging to MSK’s surgical team; failed to timely and properly obtain a surgical evaluation; improperly communicated to the MSK surgical team that there was a low probability of an anastomotic leak; and otherwise failed to promptly and adequately treat Reilly’s deteriorating medical condition, are without merit. In opposition, plaintiffs submit the affirmation of Dr. Paul Schipper, who is board- certified in Surgery and Thoracic Surgery. At the outset, Dr. Schipper opines that defendant’s medical expert, Dr. Salzman, is not qualified to render opinions on the standard of care for the acts of a Cardiothoracic Consult such as Dr. Tannous. In particular, Dr. Schipper opines that Dr. Salzman is not trained or board certified in any surgical field, and does not perform esophageal or other surgeries. As such, he concludes that Dr. Salzman does not possess adequate qualifications, training or experience to provide professional opinions as to the adequacy of the Cardiothoracic Surgery consult performed by Dr. Tannous. In response to Dr. Salzman’s affirmation concerning whether Dr. Tannous should be held to the standards of care for an esophageal surgeon, Dr. Schipper opines that if Dr. Tannous did not consider himself qualified to render a surgical consult for a complex post-esophagectomy patient with post-operative complications, he should not have undertaken it, and he should have involved more qualified and experienced surgeons for the case. Dr. Shipper further opines that Dr. Tannous’ failure to note on the record that he should be contacted regarding Reilly’s subsequent medical course, was a deviation from accepted medical practice. Dr. Schipper concludes, to a reasonable degree of medical certainty, that had Dr. Tannous performed an adequate consult, the worsening anastomotic leak would have been diagnosed the same day, rather than two days later, which was a deviation from accepted standards of medical care. Dr. Schipper opines that the departures by Dr. Tannous prevented an earlier diagnosis of fistula formation and surgical intervention, and that the delay caused more extensive fistula formation, increased necrosis of Reilly’s lung and stomach, and loss of functional lung capacity, among other disabilities. Based on the foregoing, plaintiffs raise triable issues of fact regarding whether Dr. Tannous departed from good and accepted medical practice, thereby precluding summary judgment. (see Ivey v. Mbaidjol, 202 AD3d 1070). The Court notes that “[s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Id., at 1072, quoting Feinberg v. Feit, 23 AD3d 517 [2d Dept 2005] [internal quotation marks omitted]); see Stewart v. North Shore Univ. Hosp. at Syosset, 204 AD3d 858 [2d Dept 2022]). As to that prong of defendant’s motion, seeking dismissal of plaintiffs’ second cause of action based on negligent supervision, plaintiffs do not refute that branch of the motion. To establish a cause of action based on negligent hiring and supervision, it must be shown that the defendant knew or should have known that an individual had a propensity for the conduct which allegedly caused the injury (see Jackson v. New York Univ. Downtown Hosp., 69 AD3d 801 [2d Dept 2010]; Flanagan v. Catskill Regional Med. Ctr., 65 AD3d 563 [2d Dept 2009]). In establishing prima facie entitlement to summary judgment, defendants rely on the affidavit of Dr. Salzman who opines, to a reasonable degree of medical certainty, that the care rendered by the surgical resident, Dr. Mulay, was within accepted standards of care and did not cause any of Reilly’s injuries. The Court also notes that the record is devoid of evidence that Dr. Tannous hired Dr. Mulay or had any role in permitting him to treat patients at Stonybrook. Accordingly, it is hereby, ORDERED, that defendant’s motion seeking summary judgment is granted only to the extent that plaintiffs’ second cause of action for negligent supervision is dismissed and in all other respects, defendant’s motion is denied This constitutes the Decision and Order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: June 12, 2023
