ADDITIONAL CASES Wyckoff Heights Medical Center, Third-Party Plaintiff v. Wyckoff Emergency Medicine Services, P.C., and Marie Gisele Edouard Saint Felix, as Temporary Administrator of the Estate of Fritz Saint Felix, R.P.A., Third-Party Defendants Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: Seq.7: 168-170, 171-194, 208 Seq. 8: 196-198, 199-207 DECISION & ORDER Defendant HARISH PATEL, M.D. (“Patel”) and third-party defendants WYCKOFF EMERGENCY MEDICINE SERVICES, P.C. (“WEMS”) and MARIE GISELE EDOUARD ST. FELIX, as Temporary Administrator of the Estate of FRITZ SAINT FELIX, R.P.A (“St. Felix”) move pursuant to CPLR §3212 for summary judgment in their favor (Sequence #7). Plaintiff cross moves to preclude non-moving defendants JUDE OZUZU, M.D., (“Ozuzu”) and WYCKOFF HEIGHTS MEDICAL CENTER (“WHMC”), from exercising CPLR Article 16 rights in the event summary judgment is granted (Sequence #8). This action arises out of alleged acts of malpractice by several defendants associated with the care and treatment of plaintiff-decedent Emansoo Shivprashad. On October 3, 2011, at approximately 10:43pm, Mr. Shivprashad was found asleep in a closet at WHMC. Mr. Shivprashad was employed as a nurse at WHMC and was on duty at the time of the incident. When Mr. Shivprashad awoke, he was heavily intoxicated. His blood alcohol level was .467, far above the legal limit of .08, which put him at a serious risk for coma or death. Mr. Shivprashad was brought to the WHMC Emergency Department at approximately 11:00pm, and his vitals were all within normal levels. While in the Emergency Department, Mr. Shivprashad became verbally abusive, aggressive, and violent with the staff. He attempted to pull out his IV, tried to evacuate the hospital, and was clearly in an agitated state. Mr. Shivprashad was deemed to have posed a threat to his own safety and the safety of those around him, and soft restraints were placed on him. At approximately 11:43pm, 5mg of Haldol and 2mg of Ativan were administered to Mr. Shivprashad to sedate him. Due to the increased risk of respiratory depression, after the administration of Haldol and Ativan Mr. Shivprashad required continuous assessment and one-to-one monitoring. Third-party Defendant St. Felix subsequently became involved with Mr. Shivprashad. Mr. St. Felix was a physician’s assistant employed by third-party defendant WEMS. At approximately 12:06am on October 4, 2011, defendant St. Felix took Mr. Shivprashad to radiology for a head CT scan. After the scan was taken, defendant St. Felix took Mr. Shivprashad back to his room. At approximately 12:34am, Mr. Shivprashad went into respiratory distress and suffered a cardiac arrest. Mr. Shivprashad was intubated, CPR was performed, and at 12:45am spontaneous circulation returned. As a result of the code, Mr. Shivprashad suffered severe anoxic encephalopathy and ultimately passed away on February 23, 2012. Plaintiff alleges that Mr. Shivprashad was not properly assessed and monitored in accordance with the acceptable standard of care. Plaintiff argues that between 12:06am and 12:34am on October 4, 2011, there were no assessments, vitals, nor any type of documentation regarding the care and treatment of Mr. Shivprashad, except for a note at 12:18am by Dr. Ozuzu that Mr. Shivprashad was sleeping. Plaintiff indicates that Dr. Ozuzu has testified that defendant St. Felix was assigned as the one-to-one aide for Mr. Shivprashad during this period, however defendant St. Felix has testified that Mr. Shivprashad was not his patient, and his only obligation was taking Mr. Shivprashad to radiology for a CT scan. Plaintiff maintains that Mr. Shivprashad was left alone and forgotten in the Emergency Department when he went into respiratory distress and cardiac arrest. Defendant Dr. Patel, and third-party defendants WEMS and St. Felix move for summary judgment as to the claims for medical malpractice on the ground that the treatment rendered to Mr. Shivprashad was in accordance with standards of good and acceptable medical practice, and that any alleged injuries suffered by Mr. Shivprashad were not proximately caused by any departures from the standards of care on behalf of WEMS and St. Felix. Defendants further move for summary judgment as to the claims for lack of informed consent, and any derivative claims. As a preliminary matter, plaintiff has not opposed the motion for summary judgment on behalf of defendant Dr. Patel. Accordingly, summary judgment is granted for all causes of action against him. “Where a party fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant’s papers may be deemed admitted as there is, in effect, a concession that no question of fact exists.” 144 Woodbury Realty, LLC v. 10 Bethpage Rd., LLC, 178 A.D.3d 757, 761-62 [2d Dept 2019]. “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.” Stukas v. Streiter, 83 A.D.3d 18, 23 [2d Dept 2011]. “In moving for summary judgment dismissing a complaint alleging medical malpractice, a 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.” Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 A.D.3d 959, 960 [2d Dept 2015]. “Once a showing has been made, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact.” Lesniak, 132 A.D.3d at 960. “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 A.D.3d 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 A.D.3d 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 A.D.3d 989, 992 [2d Dept 2022], citing Lavi v. NYU Hosps. Ctr., 133 A.D.3d 830, 832 [2d Dept 2015]. As to the expert testimony, “[E]xpert 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 [2d Dept 2019]. “An expert opinion submitted in opposition should address specific assertions made by the movant’s experts, setting forth an explanation for the reasoning and relying on specifically cited evidence in the record” Murray v. Central Island Healthcare, 205 A.D.3d 1036, 1037 [2d Dept 2022]. Defendants submit the expert affirmation of David Barlas, M.D. Dr. Barlas is board certified in emergency medicine and is licensed to practice in the State of New York. Dr. Barlas opines that defendant St. Felix was properly monitoring Mr. Shivprashad and acted in accordance with acceptable standards of care when Mr. Shivprashad began to suffer a cardiac arrest. Dr. Barlas opines that defendant St. Felix never left Mr. Shivprashad’s side from the CT scan until the completion of CPR, and promptly notified Dr. Ozuzu when the patient went into respiratory distress. Dr. Barlas further opines that any deviation in the standard of care by defendant St. Felix as to Mr. Shivprashad was not a cause of his claimed injuries, as Mr. Shivprashad’s hypoxic encephalopathy and death was not a result in delay of treatment or care by defendant St. Felix. The defendant’s expert affirmation is contradictory and unsupported by the evidence. During his deposition, defendant St. Felix testified that Mr. Shivprashad was not his patient, and he was not under any duty to monitor him. He testified that his only duty was taking Mr. Shivprashad to radiology and returning him to his room. The evidence also suggests that no assessments of Mr. Shivprashad were conducted by defendant St. Felix between 12:06am and 12:43am. This is not in accordance with Dr. Barlas’s expert opinion. Similarly, Dr. Barlas’s opinion as to the proximate causation of Mr. Shivprashad’s injuries is conclusory, speculative, and unsupported by the evidence. “[E]xpert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact” Lowe v. Japal, 170 A.D.3d 701, 702 [2d Dept 2019]. Dr. Barlas opines that due to the diligent monitoring by defendant St. Felix, any delay in recognition or treatment of Mr. Shivprashad’s injuries did not cause his injuries or death. However, Dr. Barlas does not consider the evidence that indicates defendant St. Felix was not monitoring Mr. Shivprashad. Dr. Barlas’s opinion that defendant St. Felix did not cause injury to Mr. Shivprashad because he was properly monitoring him fails to consider the evidence that indicates that Mr. Shivprashad’s cardiac arrest was unwitnessed and unmonitored. Dr. Barlas does not offer an opinion as to why Mr. Shivprashad was found pale, pulseless, and unresponsive, and does not consider the cardiac arrest flowchart that indicates that Mr. Shivprashad’s code was not witnessed. As such, the defendant has failed to establish a prima facie showing of entitlement to summary judgment. In opposition, Plaintiff submits the expert affirmation of [redacted name]. Plaintiff’s expert opines that the requisite standard of care required for Mr. Shivprashad was continuous assessment and monitoring due to his risk for respiratory depression. Plaintiff’s expert opines that the record indicates that between 12:06am and 12:34am on the date of the alleged incident, Mr. Shivprashad was not properly assessed or monitored noting that there is no record of it. Plaintiff’s expert opines that the evidence suggests that Mr. Shivprashad’s cardiac arrest was neither witnessed nor monitored. Furthermore, Plaintiff’s expert opines that based on the evidence that Mr. Shivprashad was pale and pulseless when CPR was initiated, Mr. Shivprashad was in respiratory distress for a significant period of time before anyone noticed. Plaintiff’s expert opines that had Mr. Shivprashad been assessed and monitored in accordance with the proper standard of care, any respiratory distress would have been detected and treated immediately, which would have prevented Mr. Shivprashad from going into cardiac arrest. Even if the court determined that defendants had met their prima facie burden, the plaintiff has raised a triable issue of fact precluding summary judgment in defendants’ favor. While the parties agree as to the appropriate standard of care for Mr. Shivprashad, their opinions differ greatly on whether or not that standard was met by defendant St. Felix. Both experts opine that because of the increased risk of respiratory distress, a patient who receives Haldol or Ativan must receive continuous one-to-one monitoring and assessment. Defendants argue that St. Felix never left the side of Mr. Shivprashad during the time period in question and acted promptly when he went into cardiac arrest. Plaintiff argues that defendant St. Felix was not continuously monitoring or assessing Mr. Shivprashad, as there are no records of any assessment done by defendant St. Felix, and defendant St. Felix himself testified that Mr. Shivprashad was not his patient. Furthermore, plaintiff’s expert opines that the pale and pulseless state in which Mr. Shivprashad was in when CPR was rendered indicates that he had been in respiratory distress for a prolonged period of time before action was taken. Defendants also argue that because Defendant St. Felix was a physician assistant, he cannot legally be held liable for the treatment he rendered to Mr. Shivprashad. The law is clear that a supervising physician is medically responsible for the acts and omissions of a physician’s assistant under their supervision. 10 N.Y.C.R.R. §94.2; Vaccaro v. St. Vincent’s Medical Center, 71 A.D.3d 1000, 1002 [2d Dept 2010]. However, a physician’s assistant may be liable for independent acts of negligence. Motto v. Beirouti, 90 A.D.3d 723, 724 [2d Dept 2011]; Vaccaro, 71 A.D.3d at 1001. In the present case, it is unclear whether defendant St. Felix properly adhered to Dr. Ozuzu’s instructions to continuously monitor and assess Mr. Shivprashad. Indeed, it is not established whether these instructions were given. Therefore, there are questions of fact regarding whether or not defendant St. Felix was independently negligent. Defendant’s request that derivative claims be dismissed is denied to the extent that the cause of action sounding in medical malpractice remains viable as to St. Felix and WEMS. Third party defendants WEMS and St. Felix next move for summary judgment as to the claim for lack of informed consent. Defendants argue that because defendant St. Felix was only required to monitor and assess Mr. Shivprashad, there is no action giving rise to a claim for lack of informed consent. In opposition, plaintiff argues that defendant St. Felix was providing treatment to Mr. Shivprashad and was supposed to be one-to-one monitoring him. Plaintiff argues that defendant St. Felix chose a course of treatment without discussing it with Mr. Shivprashad or his family, therefore plaintiff has a claim for lack of informed consent. Public Health Law §2805-d(2) provides “the right of action to recover for medical, dental or podiatric malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.” See also Deutsch v. Chaglassian, 71 A.D.3d 718, 720, [2d Dept. 2010]; Mitchell v. Lograno, 108 A.D.3d 689, 693, [2d Dept. 2013]. The present case does not involve a situation giving rise to a claim for lack of informed consent as it pertains to defendants WEMS and St. Felix. There was no allegation of a non-emergency or diagnostic procedure; nor is there a claim which involved invasion or disruption of the integrity of the body. Accordingly, summary judgment is granted as to the claim for lack of informed consent. Plaintiff’s cross motion seeks to preclude defendants and remaining third-party defendants from exercising rights pursuant to Article 16. Plaintiff poses numerous nebulous arguments which seem to be directed at divergent issues. The only issue that seems to require a decision herein is whether apportionment of liability at the trial of this matter may include Dr. Patel, to whom summary judgment is granted herein. The grant of summary judgment to Dr. Patel dismisses the action against him with prejudice and directs that judgment be entered in his favor. An award of summary judgment on a particular issue constitutes a determination on the merits and gives rise to issue preclusion to the same degree as a favorable resolution at trial. See QFI, Inc. v. Shirley, 60 A.D.3d 656, 657 [2d Dept 2009]. That is the case even where the nonmoving party has not opposed the motion. See Windley v. City of New York, 104 A.D.3d 597, 598 [1st Dept 2013]; Fofana v. 41 W. 34th St., LLC, 71 A.D.3d 445, 448 [1st Dept 2010]; QFI, Inc. v. Shirley, 60 A.D.3d 656, 657 [2d Dept 2009]; Rodenheiser v. State of New York, 47 A.D.3d 788, 850 [2d Dept 2008]; Brown v. Suggs, 39 A.D.3d 395 [1st Dept 2007]; Matter of Abady, 22 A.D.3d 71, 85 [1st Dept 2005]; Harriman Estates Dev. Corp. v. General Acc. Ins. Co., 309 A.D.2d 575 [1st Dept 2003]; Vinci v. Northside Partnership, 250 A.D.2d 965 [3d Dept 1998]; David v. State, 157 A.D.3d 764, 765-66 [2d Dept 2018]. Plainly, the dismissal of a defendant who is granted summary judgment is a dismissal on the merits. Thus, there may be no apportionment of liability which would include Dr. Patel as the court herein has effectively determined that no malpractice has been established arising from the acts or omissions of Dr. Patel. Therefor, Article 16 apportionment does not include Dr. Patel. All other arguments posed by Plaintiff, to the extent ascertained by the court, are prospective in nature. Many of Plaintiff’s assertions refer to issues that may arise in the future; indeed, the arguments start with the phrase “defendants may argue.” The court will not entertain issues that have not yet arisen. Thus, any issues as to apportionment of liability of the remaining defendants shall be addressed, at the time of trial, with the trial judge, if necessary. Therefor, Plaintiff’s cross motion (Seq. 8) is Granted only to the extent that Article 16 apportionment does not apply to Dr. Patel, as discussed herein. The court declines to rule on that portion of Plaintiff’s cross motion (Seq. 8) that is based on speculation of future arguments. Accordingly, as to Sequence 7: Defendant Dr. Patel’s motion seeking summary judgment for all claims against him is GRANTED, with prejudice. That portion of the motion seeking judgment as to the cause of action for medical malpractice as to third-party defendants WEMS and St. Felix is DENIED. That portion of the motion seeking judgment as to the cause of action for lack of informed consent on behalf of third-party defendants WEMS and St. Felix is GRANTED. As to Sequence 8: Plaintiff’s cross motion to preclude defendants Dr. Ozuzu and WHMC from obtaining the benefits of CPLR Article 16 at trial is GRANTED only to the extent that liability may not be apportioned as to Dr. Patel. It is denied in all other respects. The Clerk is directed to enter judgment in favor of HARISH PATEL, M.D. This constitutes the decision and order of the court.
