Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 74-92; 93-104; 405-106. AMENDED Defendants, HENRY TISCHLER, M.D., KHAJA AHMED, D.O., VICTORYA GERSHTEYN, M.D., PRASANTHI SUNKESULA, M.D., PARK SLOPE ANESTHESIA ASSOCIATES, P.C., and NEW YORK PRESBYTERIAN BROOKLYN METHODIST HOSPITAL move this court for an Order pursuant to CPLR §3212 granting summary judgment to the moving defendants, dismissing the plaintiff’s Complaint. Plaintiff submitted opposition to this motion and presented an unredacted copy of their expert’s affirmation to the Court. Plaintiff claims that Dr. Tischler used high tourniquet pressures, excessively inflated the tourniquet during the surgery, and allowed the tourniquet to remain in place for an unreasonable amount of time. It is also claimed that the negligent use of the tourniquet caused compression of the peroneal/sciatic nerve, which ultimately caused the plaintiff to develop a foot drop. Plaintiff further claims that Defendants failed to perform physical examinations and failed to timely order diagnostic tests and studies. As a result of these alleged departures, Plaintiff claims she sustained injuries, including but not limited to a drop foot. “‘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 Hospitals. 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 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 A.D.3d 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 Hospital Ctr., 133 A.D.3d 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]. Defendants’ expert, Daniel S. Rich, M.D., a physician board certified in Orthopedic Surgery established that he is qualified to opine as to the care and treatment rendered to the plaintiff in this case. Defendants’ expert, Adam I. Levine, M.D., a physician board certified in Anesthesiology, also established that he is qualified to opine as to the care and treatment rendered to the plaintiff in this case. Plaintiff’s expert, a physician board certified in Orthopedic Surgery established that they are qualified to opine as to the care the plaintiff received in this case. While defendants established their prima facie burden warranting summary judgment, Plaintiff raises an issue of fact precluding dismissal of the claims against Dr. Tischler. As discussed below, the experts’ opinions are conflicting as to the placement of the tourniquet, thereby raising an issue of fact precluding summary judgement. “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 A.D.3d at 1054, citing Heller v. Weinberg, 77 AD3d 622, 623 [2d Dept. 2010]. Further, “[s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions…[because] such credibility issues can only be resolved by a jury.” Feinberg v. Feit, 23 AD3d 517, 519 [2d Dept. 2005] [internal citations omitted]. “Once a defendant makes a prima facie showing, ‘the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact’ as to the elements on which the defendant met the prima facie burden.” Clarke v. New York City Health and Hospitals., 210 AD3d 631 [2d Dept. 2022] citing Donnelly v. Parikh, 150 A.D.3d 820, 822, [internal quotation marks omitted]. “‘When experts offer conflicting opinions, a credibility question is presented requiring a jury’s resolution’” Russell v. Garafalo, 189 AD3d 1100, 1102 [2d Dept. 2020] quoting, Shields v. Baktidy, 11 A.D.3d 671, 672 [2d Dept. 2004]. Plaintiff’s expert review of the records indicates that the Anesthesia Note documents that the tourniquet was placed on the right distal thigh with a pressure of 325 mmHg; the Defendant’s expert states that it had a pressure of 300 mmHg and was placed on the right upper thigh. Plaintiff’s expert opines that such placement position of the tourniquet and its applied pressure is a deviation from accepted standards of practice. Additionally, Plaintiff’s expert states that as Dr. Rich relied on the tourniquet positioned higher on the right thigh, his opinion regarding the MRI findings is faulty as Dr. Rich pointed to the wrong section of the film to dispute the nerve injury. Plaintiff’s expert also opines that it is good and accepted medical practice to have an MRI done as early as a week after the peroneal nerve palsy is suspected in patients who have a peroneal nerve palsy of unknown etiology after a Total Knee Replacement. The expert opined that it was a departure from the standard of care to perform the study 3-4 weeks later. The expert states that in patients who have nerve injuries caused by compression, or if the nerve itself is damaged, a patient should be referred expediently for surgery to either decompress the nerve or repair the nerve. The longer the nerve is permitted to remain compressed or damaged, the less likely the nerve can regenerate appropriately. In sum, the parties, through their submissions and the opinions of their respective experts, each meet their burdens. As plaintiff raises issues of fact for trial as to Dr. Tischler, summary judgment is Denied. Plaintiff’s expert’s opinions are conclusory with regards to the defendant hospital’s staff thus summary judgment is Granted to NewYork-Presbyterian Brooklyn Methodist Hospital as to its staff. As the relationship between Dr. Tischler and NewYork-Presbyterian Brooklyn Methodist Hospital is not discussed by the movant, summary judgment is Denied as to any claims of the hospital’s vicarious liability for the claims of malpractice relative to Dr. Tischler. Issues of fact are also raised as to the sufficiency of the Informed Consent that the plaintiff received from Dr. Tischler. Although both experts mention this claim in their affirmations, the opinions are in part speculative and conclusory and, in part, conflicting. Therefore, summary judgment cannot be granted. Accordingly, Summary Judgment is Denied as to Dr. Tischler and Denied as to claims for the alleged vicarious liability of NewYork-Presbyterian Brooklyn Methodist Hospital for Dr. Tischler. Summary judgment is Granted as to NewYork-Presbyterian Brooklyn Methodist Hospital only to the extent of dismissing claims against other staff in accordance with the above. Summary judgment is Granted as to New York-Presbyterian Brooklyn Methodist Hospital for all claims relative to the treatment and care rendered by Defendants Khaja Ahmed D.O.; Prasanthi Sunkesula, M.D.; Victorya Gershteyn M.D. and Park Slope Anesthesia Associates, P.C as these are unopposed This constitutes the decision and order of the Court. Dated: July 31, 2023
