Recitation, as required by CPLR §2219 [a], of the papers considered in the review: Seq. 6: 159-163, 164-182, 185-187, 188-209, 210, 214-215 Seq. 7: 211-213, 216-217, 218-232, 233-239, 240 DECISION & ORDER Defendant Mostaque Ahmed, M.D. (hereinafter “Dr. Ahmed”) moves the Court pursuant to CPLR §3212 for summary judgment and dismissal of Plaintiff’s Amended Complaint for all claims against Dr. Ahmed. Plaintiff opposes Dr. Ahmed’s motion for summary judgment. Defendant Toniann M. Stone, D.O. (hereinafter “Dr. Stone) cross-moves this Court pursuant to CPLR §§2215, 3212 for summary judgment and dismissal of Plaintiff’s Amended Complaint for all claims against Dr. Stone. Plaintiff opposes Dr. Stone’s motion for summary judgment. Lois D. Jones as Executrix of the Estate of Plaintiff’s Decedent, Doloris Jones (hereinafter “Decedent”), alleges medical malpractice/negligence against an acute care hospital, a skilled nursing facility, and several doctors for failure to properly care for Decedent’s existing pressure injuries in 2015, leading to the development of sepsis and death. Decedent became a resident of Defendant Linden Center for Nursing and Rehabilitation on March 18, 2015, whereupon Dr. Ahmed, an internist, became her primary doctor at the facility. Plaintiff alleges that Dr. Ahmed’s departures from the standard of care engendered the aggravation of preexisting pressure ulcers, leading to Decedent’s hospitalization and death shortly thereafter on July 20, 2015. In evaluating a summary judgment motion in a medical malpractice case, the Court applies the burden shifting process set forth by the Appellate Division: “The elements of a medical malpractice cause of action are a deviation or departure from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries. When moving for summary judgment, a defendant provider has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s bill of particulars. In opposition, the plaintiff must demonstrate the existence of a triable issue of fact as to the elements on which the defendant has met his or her initial burden. General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant['s]…summary judgment motion. Although summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact. 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.” Barnaman v. Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023] (internal citations, brackets, and quotation marks omitted). Dr. Ahmed satisfied his prima facie burden to warrant summary judgment. “A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff’s injuries.” Agostini v. Varughese, 190 A.D.3d 799, 801 [2d Dept 2021]. Expert witness for Dr. Ahmed, Douglas Prisco, M.D., relying on facts found in the record and discussing alleged claims in the Bills of Particulars, opined that Dr. Ahmed’s care of Decedent was consistent with the applicable standard of care, that any worsening of wounds was “unavoidable due to her comorbidities,” and that Dr. Ahmed was not responsible for the acts and omissions of the nursing staff in performance of tasks within the nursing scope of practice. According to Defendant’s expert, and consistent with the applicable standard of care, Dr. Ahmed had ordered wound care and podiatry consults forthwith on admission, examined the Decedent regularly (at least 28 times in 4 months), cared for her comorbid medical conditions (insulin dependent diabetes mellitus, monoclonal gammopathy of uncertain significance, chronic active Hepatitis C infection, end stage kidney disease necessitating renal replacement therapy, anemia, AV graft thrombosis, therapeutic anticoagulation with Warfarin for treatment of a venous thrombosis, neuropathy, presence of cryoglobulins, presumed pneumonia, recurrent hypoglycemia, debility) by inter alia, consulting various specialties, ordering appropriate tests, administering medications as indicated, and ordering initial wound care treatments. Further, Dr. Prisco noted that Dr. Ahmed appropriately deferred to the expert recommendations of the various consultants, including the wound care consultant, administered antimicrobial pharmacotherapy when indicated, and relied on the professional nursing staff in performance of nursing tasks. Moreover, Dr. Prisco opined that despite optimal treatments, worsening of Decedent’s wounds “was unavoidable due to her significant comorbidities, including end stage renal disease, diabetes and probable small vessel vascular disease…[which] both stymied wound healing and cumulatively reduced the delivery of oxygenated blood and necessary nutrients to maintain the integrity of the skin.” In opposition, Plaintiff fails to raise a material issue of fact to withstand defendant’s prima facie showing of entitlement to summary judgment as matter of law. Plaintiff’s expert witness misstates material facts in this case, feigns the existence of disputed facts, and makes vague overtures to regulations without specific citation. Plaintiff’s expert makes conclusory, speculative, inchoate, contradictory, and unsupported assertions, such that Plaintiff fails to raise an issue of fact to withstand Dr. Ahmed’s prima facie entitlement to summary judgment. Expert witness for the Plaintiff, Perry Starer, M.D., opined that although Dr. Ahmed ordered a wound care consult on March 18, 2015, Decedent was not evaluated by the consultant for nine days, during which time the Decedent did not receive any wound care, which Dr. Ahmed “was perfectly able to provide the same service the wound care consultant was expected to provide, such as assessment and ordering of wound care treatment,” and that the sacral wound worsened in the interim. Dr. Starer further opines that Dr. Ahmed was negligent in failing to ensure that Dr. Stone, the wound care consultant, examined the Decedent “at least 12″ times” when Dr. Stone saw the Decedent only 6 times over four months: “[c]learly Dr. Stone did not visit weekly, and [Dr. Ahmed] failed to follow up to ensure Dr. Stone was following as ordered. According to Dr. Starer, Dr. Ahmed “was aware the buttocks and heels were injured areas and thus the decedent should not have been positioned on her back and only her left or right side…failed to properly utilize the nursing documentation to ensure the decedent was actually turned and positioned every two hours as ordered…did not ensure [the nursing home] maintained an appropriate record of the decedent’s multiple pressure injuries and [Dr. Ahmed] did not take any action regarding these inconsistencies…failed to prevent decedent’s sacral pressure injury from becoming infected.” Plaintiff’s expert does not claim that any wounds worsened because Dr. Ahmed failed to appropriately treat comorbid conditions within his scope. Finally, Dr. Starer alleges that Dr. Ahmed “violated state and federal regulations” in failing to properly care for Decedent’s wounds. As an independent physician, Dr. Ahmed does not supervise or guarantee the care provided independently by the professional licensed nursing staff at the skilled nursing facility — the Plaintiff does not allege that the nurses are in the doctor’s employ; thus Dr. Ahmed cannot be held vicariously liable for the acts and omissions of the professional nursing staff at the skilled nursing facility. See generally Geffner v. N. Shore Univ. Hosp., 57 AD3d 839 [2d Dept 2008]; Banks v. Barkoukis, 231 AD2d 598 [2d Dept 1996]. Plaintiff’s arguments related to Dr. Ahmed’s failure to exercise adequate control and supervision over individuals outside his purview (nursing staff, other attending physicians) are rejected to the extent they are submitted in opposition to Dr. Ahmed’s prima facie showing of entitlement to summary judgment, and opinions asserted by Plaintiff’s expert based on these claims do not raise an issue of fact to withstand summary judgment as to Dr. Ahmed. “Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient. Moreover, the question of whether a physician owes a duty to the plaintiff is a question for the court, and is not an appropriate subject for expert opinion.” Burns v. Goyal, 145 AD3d 952, 954 [2d Dept 2016] (internal citations, quotations, references omitted); see also Geffner v. N. Shore Univ. Hosp., 57 AD3d 839 [2d Dept 2008]. It was reasonable for Dr. Ahmed to defer to the consultant wound care physician to spearhead the evaluation and management of Decedent’s wounds. Plaintiff also does not explain how Dr. Ahmed’s alleged failure to advise Dr. Stone of any material discrepancies in the size and evolution of Decedent’s wounds was the proximate cause of Decedent’s clinical deterioration. Finally, Plaintiff does not specifically allege Drs. Ahmed and Stone were engaged in “joint action in diagnosis or treatment.” Lin v. Yi Xie, 114 N.Y.S.3d 334 [1st Dept. 2019]; see also McAlwee v. Westchester Health Assocs., PLLC, 163 A.D.3d 549 [2nd Dept. 2018]. Assertions advanced by Plaintiff that Dr. Ahmed failed to initiate wound care treatments at the time of admission and until Decedent was seen by the wound care specialist are contradicted by the record. Not only had Dr. Ahmed ordered wound care treatments and other medications on admission (see generally NYSECF 172, pages 294, for wound treatments ordered on March 18, 2015), Decedent refused treatments on many occasions soon thereafter: i.e. 3/20/2015 note by Nurse Babb “Resident alert and verbally responsive Day 2/7 post new admission resident refused all am care and medication this AM [sic]. All efforts of encouragement by staff to provide care were refused resident stated that she was not wet and not taking any medication.” NYSECF 172, page 118. Furthermore, many of the same treatments that Dr. Ahmed had originally ordered were continued by the wound care specialist on March 27, 2015. Assuming, arguendo, that the Court were to accept as fact that Dr. Ahmed failed to order wound treatments in the period between admission until the Decedent was evaluated by the wound care specialist several days later, or ordered suboptimal treatments, Plaintiff’s expert does not explain how this alleged lapse is the proximate cause of Decedent’s claimed injuries. “[E]xpert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact.” Wagner v. Parker, 172 AD3d 954, 955 [2d Dept 2019]. “General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician’s summary judgment motion” Myers v. Ferrara, 56 A.D.3d 78, 84 [2d Dept 2008]; Gilmore v. Mihail, 174 AD3d 686 [2d Dept 2019]. Plaintiff’s claims regarding the Decedent’s condition immediately prior to Decedent’s hospitalization on July 17, 2015, including that “[t]he [nursing facility] record is void of any explanation by [Dr. Ahmed] as to the status of the pressure ulcers or what caused [Decedent] to become hypotensive and septic requiring her admission to [the hospital]. In fact, [nursing home] offers no explanation as to the cause of [Decedent's] deterioration” (NYSECF 206, page 21), elicits speculative hypotheses; such statements also fail to appreciate the manifest differences between an acute care hospital and a skilled nursing facility. “Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment.” Diaz v. NY Downtown Hosp., 99 NY2d 542, 544 [2002]; see also Nestorowich v. Ricotta, 97 NY2d 393, 398 [2002], holding that “[A] doctor is not liable in negligence merely because a treatment, which the doctor as a matter of professional judgment elected to pursue, proves ineffective or a diagnosis proves inaccurate. Not every instance of failed treatment or diagnosis may be attributed to a doctor’s failure to exercise due care.” Dr. Ahmed’s expert opined that aggravation of Decedent’s wounds “was unavoidable due to her comorbidities, including end stage renal disease and diabetes, which cumulatively reduced the delivery of oxygenated blood and necessary nutrients to maintain the integrity of the skin and facilitate wound healing.” In opposition, Plaintiff’s expert states “the deterioration of sacral ulcer was avoidable. Once a pressure ulcer forms, it may become difficult to heal with pre-existing conditions, such as diabetes mellitus and end stage renal disease. However, such co-morbidities do not have any effect on the creation of a new pressure injury or the deterioration of an existing pressure injury. A pressure injury will either stay the same or get better, but it will not get deeper unless the treatment plan and wound care rendered is not appropriate.” Notwithstanding the conclusory nature of the opinion offered by Plaintiff’s expert that lacks an explanation grounded in medicine, Plaintiff’s expert does not explain how comorbidities simultaneously make it “difficult to heal” wounds but does not “have any effect on…the deterioration of an existing” wound. “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 [2d Dept 2017] (internal citations, quotation marks and references omitted); “The expert affirmation proffered by the plaintiff was conclusory and speculative, failed to address the significance of the decedent’s many comorbidities, and was silent on the essential issue of proximate cause.” Russell v. Riv. Manor Corp., 216 AD3d 827, 830 [2d Dept 2023]. Claims first raised in Plaintiff’s Affirmation in Opposition, that are not substantially and specifically claimed in the Bills of Particulars or are not adequately addressed in the opinion of Plaintiff’s expert, are rejected to the extent they are submitted in opposition to Dr. Ahmed’s prima facie showing of entitlement to summary judgment. These claims include, inter alia: 1. Frequency of wound care rendered by individuals other than Dr. Ahmed 2. Treatment of low albumin levels (if indicated) 3. Management of prolonged INR regardless of etiology (i.e., secondary to Decedent’s use of Warfarin) (if indicated) 4. Speculation as to the etiology of Decedent’s sepsis on transfer to Brookdale Hospital as related to the care rendered by Dr. Ahmed 5. Dr. Ahmed’s missed opportunities to turn and reposition the Decedent 6. Dr. Ahmed’s missed opportunities to apply skin protectant to Decedent 7. Dr. Ahmed’s missed opportunities “for the toileting program” (NYSECF 185, page 13) 8. Dr. Ahmed’s failure to implement nursing care plans 9. Transient and trivial discrepancies in medical documentation 10. Dr. Ahmed’s failure to “prevent decedent’s sacral pressure injury from becoming infected.” The Appellate Division has observed that “a plaintiff cannot defeat a summary judgment motion that made out a prima facie case by merely asserting, without more, a new theory of liability for the first time in the opposition papers.” Townsend v. Vaisman, 203 AD3d 1199, 1203 [2d Dept 2022], quoting Biondi v. Behrman, 149 AD3d 562, 563-564 [1st Dept 2017]; see also Palka v. Vil. of Ossining, 120 AD3d 641, 643 [2d Dept 2014] “A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars;” see also Anonymous v. Gleason, 175 AD3d 614 [2d Dept 2019]. As such, Plaintiff’s new claims cannot raise issues of fact to preclude summary judgment and are rejected to the extent these are submitted in opposition to Dr. Ahmed’s prima facie showing of entitlement to summary judgment. Plaintiff failed to specifically cite any applicable laws, statutes, or regulations that Dr. Ahmed allegedly violated in support of its claim under Public Health Law §2801 et seq. Liability under this section differs from a claim for medical malpractice, such that it “contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule.” Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178, 179 [1st Dept 2002]; see also Broderick v. Amber Ct. Assisted Living, 200 AD3d 840 [2d Dept 2021]; Schwartz v. Partridge, 179 AD3d 963 [2d Dept 2020]. It is noted that plaintiff does not oppose the branch of Dr. Ahmed’s motion seeking dismissal of the wrongful death claim. As Dr. Ahmed established his prima facie entitlement to summary judgment on claims of medical malpractice in the care and treatment of Decedent and Plaintiff does not raise a triable issue of fact, summary judgment is Granted to Dr. Ahmed. Dr. Stone’s cross motion for summary judgment relies solely on the expert witness opinion submitted in support of Dr. Ahmed’s motion for summary judgment; Dr. Stone did not submit an independent expert opinion. Dr. Ahmed’s expert does not opine on whether Dr. Stone’s acts and omissions were in conformance with the standard of care, nor whether any alleged breaches were the proximate cause of Decedent’s injuries. Other conclusions of Dr. Stone’s counsel, made without the support of an expert witness opinion or other competent evidence, are of no probative value to the Court; an attorney’s affirmation “fail[s] to raise an issue of fact because it was not made on the basis of personal knowledge of the facts and was not supported by any evidence,” Jean-Paul v. Jamaica Hosp. Med. Ctr., 208 AD3d 464, 466 [2d Dept 2022], quoting Delgado v. City of New York, 179 AD3d 454, 455 [1st Dept 2020]; “[A] lay jury would not be able to assess whether the [treatments] performed on the plaintiff by [defendant doctor] were proper and necessary under the circumstances without the help of expert…witnesses.” Evangelista v. Zolan, 247 AD2d 508, 509 [2d Dept 1998]. Dr. Ahmed, as compared with Dr. Stone, had a distinct and different duty of care to the Decedent, the former as a general internist, the later as a wound care specialist; although Plaintiff makes similar but nonidentical allegations against both, they each respectively carry different and nonoverlapping burdens therein. “[A] specialist may be held liable where a general practitioner may not.” Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 262 [1968]; Micciola v. Sacchi, 36 AD3d 869 [2d Dept 2007]. Although Dr. Stone’s counsel alleges that Dr. Ahmed’s expert absolves Dr. Stone of wrongdoing, Dr. Ahmed’s expert only meaningfully speaks to the standard of care for Dr. Ahmed, and in fact establishes the existence of a different standard for a wound care specialist: “Dr. Stone, the wound care specialist, was ultimately responsible for overseeing Decedent’s wound care.” NYSECF 160, p. 14. Accordingly, Dr. Stone has failed to establish a prima facie entitlement to summary judgment. See Deadwyler v. N. Shore Univ. Hosp. at Plainview, 55 AD3d 780, 781 [2d Dept 2008], holding that “because the [litigant] presented no evidence from an expert witness as to the applicable standard of care, they failed to establish a prima facie case of medical malpractice.” “As we have stated frequently, the proponent of a summary judgment 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. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] (internal citations and references omitted); see also Koster v. Davenport, 142 AD3d 966 [2d Dept 2016]. Therefore, Dr. Stone’s motion for summary judgment is Denied with prejudice. Therefore, the Court grants Dr. Ahmed summary judgment dismissing all claims in the complaint with prejudice in its entirety and the Clerk of the Court is directed to enter judgment in their favor. Dr. Stone’s cross motion for summary judgment is denied with prejudice. This constitutes the decision1 and order of the Court. Dated: October 12, 2023
