Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: Seq. 8: 211-213, 214-233, 269, 270-292, 293-294, 351, 358-359 Seq. 9: 235-237, 238-240, 295, 296-317, 318-319, 356-357 Seq. 10: 241-242, 243-266, 320, 321-342, 343-344, 346-347, 349-350, 353-355 DECISION & ORDER Defendants Patricia A. Mullen, M.D. and Staten Island Hospital move pursuant to CPLR §3212 for summary judgment in their favor (Sequence 8); Defendants John H. Makari, M.D. and Erick Nelson, M.D. move for summary judgment (Sequence 9); Defendants Steven C. Friedman, M.D., as well as RN Peggy Brady move for summary judgment ground (Sequence #10). The motions on behalf of Defendants Nelson, M.D. (“Nelson”) (Sequence #9) and Friedman, M.D. (“Friedman”) (Sequence #10) are granted, without opposition, and the action is dismissed as against them. This action arises from alleged acts of malpractice by several defendants associated with Staten Island Hospital and Pediatric Urology Associates (“PUA”). Plaintiff Vincent A. Marino, as Administrator of the Estate of Vincent Marino, deceased, (“Plaintiff”) alleges that the medical care received in response to a hernia repair departed from accepted practice and resulted in his son’s injury and death. Plaintiff further claims that the delay in treatment post-operatively after the hernia repair caused the decedent’s condition to worsen, making the chances of conservative treatment and surgical treatment to diminish. Plaintiff alleges that because of this delay, the decedent required multiple abdominal surgical procedures, and subsequently developed adhesions, a pseudoaneurysm of the hepatic artery, a subsequent bowel obstruction and perforation and a subsequent acute fatal blood vessel bleed in the right upper quadrant. It is claimed that as a result of the delay in diagnosing and treating the decedent’s initial bowel injury, the decedent’s condition deteriorated such that he was required to undergo multiple abdominal procedures that exposed him to and caused him to suffer known complications of abdominal surgery leading to his death. Plaintiff’s decedent was discharged on August 3, 2017, after undergoing surgery for a hernia repair. On August 7, 2017, Plaintiff called Defendant physician Makari, the on-call Urologist at PUA, to alert him of worsening gastro-intestinal symptoms since his return home from surgery. The symptoms included hiccuping, vomiting, and abdominal pain. Dr. Makari did not see the patient in person but advised him via phone to see his pediatrician if any symptoms worsened. On August 8th, patient’s father again called, this time speaking with R.N. Brady. R.N. Brady advised the father to continue with small meals, increase the patient’s water intake, and to see a pediatrician or go to an Emergency Department if the patient’s pain increased or he developed a fever. Later that day, Plaintiff took his son to the emergency service of SIUH due to persistent symptoms, where he saw defendant Dr. Mullen. As discussed further below, Dr. Mullen performed a physical exam and an evaluation of the patient’s complaint. The patient was discharged based upon his stable improvements with intravenous fluids. Following this discharge on August 8th, the patient’s symptoms worsened. On August 9th, he returned, and a chest x-ray and CT scan were ordered, revealing that he was suffering from a distended bowel with obstruction and infection. The patient then left SIUH to undergo treatment at Capital Health, where he underwent the insertion of an NG tube, was placed on broad-spectrum antibiotics and given IV fluid resuscitation, as well as a percutaneous drain placement procedure. Due to continued existence of abdominal abscesses, he underwent a second procedure, but was transferred to New York Presbyterian Hospital for further management after it was determined that material draining from a surgical wound was feculent in nature. Between August 26, 2017 and December 17, 2017, the decedent received treatment at New York Presbyterian Hospital. While there, he was diagnosed with a fistula. In the following months, the patient underwent many procedures, including an open appendectomy and repair of small bowel perforation and small bowel resection with anastomosis on August 15, 2017, and surgical management of bowel perforation on August 26th. After his August 26th surgery, the patient established care at Mount Sinai Hospital for treatment of an enterocutaneous fistula and subsequently underwent additional bowel surgeries before resuming a normal daily life in 2018. The patient was then admitted to Mount Sinai Hospital West with complaints of abdominal pain, nausea and dry heaving in July of 2021. On July 26th, the patient suffered a ruptured vessel resulting in acute bleeding, and an emergency bedside laparotomy was performed. During this immediate emergency surgery, the patient became unresponsive without palpable pulse, impalpable pulse, and was ultimately pronounced dead. “‘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 Hosps. Corp., 172 A.D.3d 1037, 1039 [2nd Dept. 2019] citing Stukas v. Streiter, 83 A.D.3d 18, 23 [2nd Dept. 2011]. On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff’s injuries Revellino v. Haimovic, 216 A.D.3d 687 [2d Dept 2023]. “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 A.D.3d at 1039, citing Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 A.D,3d 959, 960 [2nd 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 A.D.3d 834, 836 [2nd 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 [2nd Dept. 2022] citing Russell v. Garafalo, 189 A.D.3d 1100, 1102, [2nd 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 [2nd Dept. 2022] citing Lavi v. NYU Hosps. Ctr., 133 A.D.3d 830, 832 [2nd 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 A.D.3d 954, 966 [2nd Dept. 2019]. In Sequence 8, Defendants Dr. Mullen and Staten Island University Hospital move for summary judgment, offering three expert affirmations disputing claims made by Plaintiff alleging departures from good and accepted medical practice during defendant Dr. Mullen’s and defendant SIUH’s limited course of care of the plaintiff on August 8, 2017, and August 9, 2017. Dr. Mullen was the attending physician who treated the patient when he arrived at Staten Island Hospital for symptoms of vomiting, diarrhea, and hiccupping. Upon review of the medical record submissions, the hospital course is as follows: Dr. Mullen performed an assessment and noted on her physical examination that the patient’s abdomen was soft and non-tender. Dr. Mullen reviewed the patient’s medical history which included abdominal pain and gastrointestinal discomfort following the days of his hernia surgery. Specifically, the patient’s “History of Present Illness” documented that the patient was presenting with nausea, vomiting and diarrhea and that he began having abdominal discomfort and frequent episodes of hiccups two days prior to his arrival at SIUH. He did not have fever. Dr. Mullen eventually ordered blood work and a stool sample. The blood sample revealed that the patient had an abnormally high white blood count level, which Dr. Mullen attributed this to the patient’s recent symptoms of vomiting and diarrhea. Given the patient’s improvement with intravenous fluids, Dr. Mullen found him stable for discharge later that night, with a discharge diagnosis of “diarrhea.” Dr. Mullen’s discharge instructions were to see the patient’s pediatrician the following day. Defendants Dr. Mullen and SIUH move for summary judgment on the basis that the above actions do not depart from good or accepted standards of care. In support of this motion, these Defendants offer three expert affirmations. First, Defendants offer expert affirmation by Bindu Kaul M.D., a physician board certified in Diagnostic Radiology. Dr. Kaul established their expertise to opine as to the care and treatment rendered to Vincent Marino in this case. Dr. Kaul opines specifically that the August 9th CT scan and chest x-ray findings only suggest significance relative to the patient’s condition at the time of the scans rather than suggesting what would have been found had Dr. Mullen ordered scans a day prior, on August 8th. He opines that the depictions of small bowel loops and air-fluid levels shown in the August 9th CT scan and chest x-ray are not reliably reflective of the actual chronicity or duration of the obstruction’s presence. Additionally, while Dr. Kaul opines that it is virtually impossible to definitely say, with any realistic and reasonable degree of medical certainty, whether the August 9th findings are acute. He also opines that it is equally unfounded and speculative to opine what would have been depicted in this case had radiologic imaging been ordered on August 8th. The radiological studies, he opines, only confirm that the patient, at the time of August 9th at 22:00, had dilated bowel loops consistent with obstruction with a transition point within the left mid abdomen. Defendants Dr. Mullen and SIUH also offer an expert affirmation from Janienne Kondrich, M.D., a physician board certified in Pediatrics and Pediatric Emergency Medicine established their expertise to opine as to the care and treatment rendered to the patient in this case. Dr. Kondrich responds specifically to Plaintiff’s claims surrounding Dr. Mullen’s decision to discharge the patient on August 8th without ordering any scans, how she came to that decision, and what, if anything, was of consequence to that decision. As to the claim that Dr. Mullen “failed to enter into the process of differential diagnosis,” and to the claim that she “failed to consider an intestinal obstruction,” Dr. Kondrich opines that Dr. Mullen’s recorded detailed description of a differential diagnosis, which ruled out various conditions including intestinal obstruction, refutes these claims. Dr. Kondrich additionally opines that the claim that Dr. Mullen “failed to fully work up abdominal pain,” is baseless considering patient’s own report of experiencing “mild abdominal pain” only. Dr. Kondrich opines that the patient’s report of a 0/10 pain level, and his denial of pain throughout his time under Dr. Mullen’s care at SIUH, suggests that Plaintiff’s claims are in fact devoid of any evidence requiring work up for abdominal pain. Dr. Kondrich opines Dr. Mullen’s differential diagnosis took into consideration the entirety of information available to her, which included the patient’s presentation, reported histories, lab values, physical exam findings, vital signs and recent surgery, which supports her conclusion that Dr. Mullen did, in fact, appreciate that the patient had recent hernia and hydrocele repair surgery. Specifically, Dr. Kondrich points to the SIUH chart, which outlines extensive detail about the patient’s status post-surgery, including examination of his surgical site and conversation with the patient about his post-op status. Additionally, Dr. Kondrich opines to the validity of the claim that Dr. Mullen “failed to appreciate complaints of fever,” and “failed to appreciate an elevated white blood cell count and tachycardia.” Based on her expertise as a pediatric emergency medicine physician, Dr. Kondrich opines that the patient’s pulse rate was originally elevated at 107, indicating tachycardia, but that the levels returned to a normal rate of 97 when they were re-checked. As to the white blood cell count, Dr. Kondrich opines that the SIUH chart accurately reflected an acknowledgement of an elevated white blood cell count, at 15.31 (reference range 4.8-10.8). Dr. Kondrich, however, opines that this elevated count was taken into consideration and assessed by Dr. Mullen to be related to the patient’s recent vomiting and diarrhea, negating Plaintiff’s claim that the finding was not appreciated by Dr. Mullen. Dr. Kondrich further opines that Dr. Mullen exercised a full and complete work of the patient’s abdominal pain, despite the patient denying intense pain throughout his time at SIUH. Dr. Kondrich opines that the physical exam of the abdomen suggests no negligence on Dr. Mullen’s behalf, considering Dr. Mullen heard “normal” bowel sounds, and examined all quadrants for symptoms of rebounding, guarding, rigidity or tenderness, finding none. This exam revealed no evidence that abdominal tenderness was still present at the time the patient saw Dr. Mullen, therefore Dr. Kondrich opines that both Dr. Mullen and SIUH properly acknowledged and appreciated whatever previous mild abdominal tenderness findings were reported in the patient’s labs. Additionally, Dr. Kondrich opines that the symptoms the patient did present, such as belching, were not ignored during Dr. Mullen’s examination. Per the patient’s chart, Dr. Mullen noted that patient experienced belching and hiccuping prior to episodes of vomiting, but that these symptoms were limited to the patient’s time post-op at his home, and that no vomiting occurred while at SIUH in the ER under Dr. Mullen’s care on August 8, 2017. Dr. Kondrich opines that these reported complaints were properly investigated when Dr. Mullen appropriately solicited that the vomit was not bloody and nonbilious. Most notably, Dr. Kondrich opines to the standard of care applicable to pediatric emergency medicine physicians. Per her expertise, Dr. Kondrich opines that Dr. Mullen was, per this standard, required to speak with, assess and evaluate the patient, consider the totality of circumstances and available information, exam the patient, formulate and investigate a reasonable differential diagnosis utilizing the available resources and weighing the indications for same, reach an appropriate and reasonable diagnosis in the ER setting, administer indicated treatments and monitor for response, and either admit or discharge the patient with appropriate discharge instructions. Dr. Kondrich opines that the evidence establishes that Dr. Mullen and SIUH complied with the standard of care applicable to them, at all times. In general, Dr. Kondrich opines to the resources available to Dr. Mullen in terms of medical intervention at the time of the patient’s August 8th admission: The patient was presenting complaints of nausea, vomiting, diarrhea, hiccuping, and belching, which Dr. Kondrich opines are extremely common and nonspecific complaints. Dr. Kondrich further opines that these complaints are potentially attributable to any multitude of potential causes, rendering Dr. Mullen’s responsibility to consider a differential diagnosis of the most likely and potentially most severe causes an “impossibility.” While Dr. Kondrich opines that Dr. Mullen appropriately assessed the patient, she offers further explanation into Dr. Mullen’s process: Dr. Kendrick opines that definitively ruling in or out every single potential cause for such complaints in every single patient presenting with such a nonspecific presentation is not within the bounds of the standard of care. Rather, Dr. Kondrich opines that the pediatric emergency medicine provider’s responsibility is to use the information, tests and resources available to them and to formulate and consider a differential diagnosis of the most likely and potentially most severe causes, investigate and assess the likelihood of such, and reach a reasonable conclusion and diagnosis to be treated. She opines that the above outlined differential diagnosis and physical exam appropriately suggested that the patient received an Emergency Severity index of 3. Dr. Kondrich opines that this index number is acceptable considering that the patient was fully ambulatory, alert, coherent, afebrile at 97.7 degrees, nontoxic and not in pain, as indicated by the 0/10 abdominal pain scale. The overall clinical presentation, according to Kondrich, allowed for a low-level of suspicion for surgical issues. The defendants Dr. Mullen and SIUH lastly offer expert affirmation from board certified general surgeon, David Katz, M.D. Dr. Katz opines, similarly to Dr. Kaul, that it is entirely speculative to say within a reasonable degree of medical certainty what imaging would have revealed, if such had been ordered by Dr. Mullen the evening of August 8, 2017. That the abscesses were present on August 9, 2017, does not, according to Dr. Kaul, offer any reasonably certain suggestion that those abscesses would have been radiographically detectible on August 8, 2017. Additionally, speculating to what would have been changed, altered or avoided from the patient’s course and care if radiographically detectible abscesses were, in fact, present and diagnosed the night of August 8, 2017, instead of the night of August 9, 2017, is also beyond any medically reasonable certainty. Dr. Katz opines that, as of the time of abscess diagnosis the night of August 9, the patient was not toxic, acidotic or septic, and it was not a hyperacute situation — as evidenced by the fact that drains were not placed until August 10, 2017. Dr. Katz opines to the patient’s visit — and ultimately Dr. Mullen’s lack of diagnosis during the visit regarding any abscesses or a small bowel obstruction: He opines that this lack of diagnosis on August 8th cannot reasonably be shown as a catalyst to the patient’s overall outcome. Specifically, the “delay” in diagnosing an abscess or small bowel obstruction cannot be definitively shown to have changed anything in the patient’s treatment, especially since treatment (in the form of drains) did not begin until August 10th. The drains were in place for five days and did not eventually eliminate the patient’s need for surgery, which, Dr. Katz opines, suggests that the patient’s need for surgery would not have changed had the drains been placed on the 9th following an earlier diagnosis from Dr. Mullen on the 7th. In sum, Dr. Katz opines that there is no certainty that the delay claimed by Plaintiff can be reasonably calculated to have changed the patient’s outcome. Plaintiff, in opposition, offers two expert affirmations, one of a board certified internal and emergency medicine physician and one of a board certified general surgeon. Plaintiff’s internal and emergency medicine expert, opines that Dr. Mullen, in failing to order a chest x-ray of the patient’s abdomen and in failing to properly work up the patient’s complaints, surgical history, and elevated white blood cell count, departed from good and accepted standards of medical practice. Additionally, Plaintiff’s expert opines that the result of the alleged departures of good and accepted standards resulted in a minimum delay of 23 hours in the patient’s diagnosis. Plaintiff’s expert begins with the claim that Dr. Mullen failed to appreciate the patient’s condition on August 8th. They opine that the exam done by Dr. Mullen, in which she did not find any abdominal tenderness, ignored the significance of the patient’s past surgical history and present symptoms. The expert further opines that the lack of tenderness during Dr. Mullen’s exam does not rule out the fact that the patient had a chart which documented a history of abdominal pain, discomfort, as well as tenderness on the exam done by a previous SIUH resident, which Dr. Mullen signed off on. Plaintiff’s expert opines that, at most it, the lack of tenderness only indicates that Dr. Mullen failed to elicit tenderness on the exam. In addition, Plaintiff’s expert opines that Dr. Mullen failed to arrive at a differential diagnosis that accurately assessed the patient’s symptoms. While Dr. Mullen testifies, and medical records show, that she did consider complications of surgery in her differential diagnosis, Plaintiff’s expert opines that the diagnosis was not fully ruled out or appreciated. Most notably, Plaintiff’s expert opines that the only way to rule out a differential diagnosis of surgical complication, thus following the required standard of care for Emergency Medicine, is to order X-Rays of the chest and abdomen, which Dr. Mullen did not do. Plaintiff’s expert opines that the labs Dr. Mullen did order — a complete blood count and a stool culture — do not rule in or rule out surgical complications of bowel obstructions or perforations. This, the expert opines, suggests a departure from good practice. In fact, the expert points to exact verbiage from Defendant’s expert, Dr. Kondrich, to support the claim that Dr. Mullen did not rule out or rule in surgical complication: “Considering the patient’s overall clinical presentation, picture, and course during the ER presentation on August 8th, the providers had a low index of suspicious for surgical issues which they partially ruled out.” (Paragraph 15 of defendant’s expert affirmation in support of the motion). Plaintiff’s expert points to the concession that the diagnosis was only “partially ruled out,” opining that patients who have a possibility of intestinal obstruction and/or perforation are required to receive a ruling concerning these conditions. Plaintiff’s expert opines that even with an abdominal pain level of 0/10, Dr. Mullen should have considered and fully appreciated the patient’s complaints and previous medical and surgical history and attach significance to them. According to Plaintiff’s expert, had Dr. Mullen attached proper significance to the patient’s previous reports of abdominal tenderness and pain, she would have ordered an abdominal X-Ray. As to whether the X-Ray would have shown signs of dilated small bowel loops had it been ordered on August 8th and not August 9th, Plaintiff’s expert opines that the patient’s symptoms suggest it would have for a number of reasons. Prior to August 8th, the patient presented symptoms of nausea, vomiting, abdominal pain and diarrhea for several days, which are the signs and symptoms of both a bowel obstruction and perforation. In addition to these symptoms, and the known risk of these surgical complications after a hernia repair, Dr. Mullen noted the elevated white blood cell count, which is a sign of infection and inflammation. Based on the patient’s entire history, Plaintiff’s expert opines that the imaging would have confirmed what was presented just a day later — dilated small bowel loops consistent with intestinal obstruction. Plaintiff also offers an expert affirmation from a board certified general surgeon in opposition to the opinions made by Dr. Kaul, Dr. Kondrich, and Dr. Katz. In response to what would have been shown in x-ray imaging had it been done on August 7th, Plaintiff’s expert surgeon opines that the patient’s symptoms, and post-op status from a hernia surgery, suggest that the patient’s abdomen would have contained significant amounts of intestinal contents, causing adhesions and obstruction on August 7th and August 8th. The expert offers support for this opinion by pointing to the patient’s sudden progression of symptoms after his discharge on August 8th. The expert opines that the significant advancement of the patient’s condition on August 9th, including symptoms he had not been suffering on August 8th, suggest that fluid collections containing air and dilated bowel loops were present as early as August 6th. The expert states that because bowel perforations are a known complication of hernia procedures, and because the symptoms on August 8th were consistent with both bowel perforations and intestinal obstruction, it is likely that the patient was experiencing leakage of his intestinal contents into his peritoneal cavity, causing infection and irrational of the abdominal organs, when admitted to SIUH’s emergency room on August 8th. The expert further opines as to Dr. Kondrich’s statement that the patient’s report of diarrhea suggested a properly functioning bowel, thus prompting Dr. Mullen to have a low suspicion surrounding any obstruction or perforation of the bowel. On this issue, Plaintiff’s expert opines that diarrhea can be present in the case of bowel obstruction as well as be a sign of pelvic abscess, due to the bowel being stimulated as it tries to push contents through the blocked area. Notably, Plaintiff’s expert opines that the 23-hour delay in ordering these tests, thus delaying a diagnosis of obstruction or perforations, was a substantial factor in reducing the success rate of more conservative treatment, leading to the patient needing multiple abdominal surgeries after his August 8th discharge. The longer irritation occurs within the intestine, the less chance the intestine has to heal the perforation on its own or with surgery when the collection of fluid has been evacuated. Furthermore, the expert states that the longer it takes to decompress the intestine, the higher the chance of bowel ischemia, which occurred in this case requiring resection. Plaintiff’s expert opines, in great detail, that this further prolongs the process of decompressing the intestine, and increases the risk of bowel ischemia, which occurred in this case, and required a resection of the patient’s bowel. The expert opines that the decedent’s intestinal perforations and subsequent abscesses, was a substantial factor in causing the need to resect bowel/intestine at the terminal ileum on August 15 2017. While Defendants Mullen and SIUH establish their prima facie burden on summary judgment Plaintiff raises issues of fact precluding same. “In a medical malpractice action, a plaintiff, in opposition to a defendant physician’s summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact” Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]. Here, Plaintiff’s expert witness opinions establish the existence of disputed material issues of fact as to liability and proximate cause. Zuckerman v. New York, 49 NY2d 557 [1980]. As discussed above, Plaintiff’s emergency medicine expert disagrees in detail with the sufficiency of Defendants’ experts’ analysis and opinion that Dr. Mullen’s evaluation of the patient was within the standard of care. Plaintiff’s expert sufficiently points to the known risk of bowel perforation post hernia surgery, the history of abdominal pain leading up to the August 8th ER visit and Dr. Mullen’s failure to properly evaluate the patient’s condition. It is noted, as Plaintiff’s expert emphasized, that Dr Kondrich conceded in his affirmation that Dr. Mullen did not completely rule out the patient’s surgical abdomen. Plaintiff’s expert stated in detail the basis for their opinion that x-ray studies on August 8th would have shown evidence of adhesions and obstructions. Further by opining that it is speculative to assume what would have shown up had an x-ray been ordered on August 8th yet opining that an August 8th X-ray would not have shown or prevented diagnosis Dr. Kaul himself engages in speculation. Additional triable issues of fact are brought forward by Plaintiff’s expert in general surgery, who opines that based upon the severity of the findings of the August 9th x-ray and cat scan, as well as the severity of the patient’s symptoms on August 7th and 8th, there is a reasonable degree of medical certainty that dilated loops of bowel would have been visible on x-ray imaging of the chest and abdomen on the 7th during the patients visit with Dr. Mullen. Plaintiff’s expert offered opinions in detail and specificity that the departures were a substantial factor in causing injury to the decedent and subsequently, his death. In conclusion, considering the foregoing conflicting opinions, which are detailed and not speculative, summary judgment is denied as to all claims sounding in medical malpractice relating to defendants Mullen and SIUH. Shields v. Baktidy, 11 AD3d 671, 672 [2d Dept. 2004]. In Sequence 9, Defendant Dr. Makari moves pursuant to CPLR §3212 for summary judgment in their favor. Dr. Makari is a physician with PUA and was the on-call physician for the patient after his hernia surgery on August 3rd, 2017. The patient was four days post-hernia repair when Dr. Makari fielded a phone call from the patient’s father regarding post-op symptoms including abdominal pain, nausea, vomiting, and hiccuping. Dr. Makari, although the on-call doctor for PUA, was physically located in his Connecticut office at the time of the call and had no physical contact with the patient. During the August 7th, 2017, phone call, Plaintiff advised Dr. Makari that his son had undergone a recent right hernia/hydrocele repair. Dr. Makari testified in his deposition that he was aware that the risks associated with the patient’s recent surgery repair included bleeding, infection, injury to the vessels/inguinal nerves and/or intrabdominal content, hernia recurrence, potential future surgery and possible death, amongst others, per his testimony. At the time of the phone call, Dr. Makari did not have access to any imaging of the patient and did not conduct a physical exam. After hearing the epigastric symptoms via the patient’s father, Dr. Makari advised for the patient to see his pediatrician if the patient’s symptoms did not completely resolve by the next day and to present to an Emergency Department if the patient’s symptoms worsened, he became lethargic, or if he became unable to tolerate fluids. He suggested that the patient may have a hospital bug or virus. Plaintiff contends that Dr. Makari’s advice to wait as per his instructions, and specifically his choice not to order any testing such as an ultrasound, x-ray or CR scan, was a deviation from the standard of care and was substantial factor in causing further injury to the patient. Defendant offers expert opinion by Konstatin Walmsley, M.D., a board certified urologist. Dr. Walmsley opines that Dr. Makari properly evaluated the patient’s condition based on the facts given to him by the patient’s father, and based on these symptoms, gave a proper differential diagnosis of gastroenteritis, pancreatitis, cholecystitis, gastric ulcer and internal obstruction. The expert opines that this differential diagnosis was appropriate based on the fact that Dr. Makari had no physical contact with the patient, and because the complaints of abdominal pain, nausea and voting were vague and potentially related to any number of differential diagnoses. This is especially true, Dr. Walmsley opines, considering the patient’s father had reported that the patient had three normal consistency bowel movements that very day. According to Dr. Walmsley, the patient reporting regular bowel movements and toleration of fluids appropriately advised Dr. Makari’s decision not to put intestinal obstruction at the top of the differential diagnosis. Defendant’s expert further opines that suggesting to go to the ER if the symptoms persisted, worsened, or new symptoms developed was an appropriate recommendation based on knowledge available to Dr. Makari at the time. In opposition, Plaintiff’s offers an expert opinion by a board certified surgeon. The expert opines that Dr. Makari failed to properly assess and deliver a differential diagnosis consistent with the patient’s symptoms on August 7th. The expert opines that the history of hernia surgery and persistent symptoms on August 5th, 6th, and 7th, suggests that an intestinal injury/obstruction should have been at the top of Dr. Makari’s differential diagnosis list, despite the patient’s report that he had three normal consistency bowel movements. The expert opines that the symptoms described on the call required further work up as they could be indicative of intestinal perforation or obstruction. Additionally, the expert opines that the fact that Dr. Makari was not physically present to examine the patient only further suggests that Dr. Makari should have referred him to the hospital: “One cannot rely on a layperson to accurately or credibly perform a medical evaluation of a wound or to do a physical examination of the abdomen.” The expert opines that in failing to refer the patient to the emergency department for further workup and evaluation when the patient’s father called and relayed the patient’s complaints, Dr. Makari departed from good and accepted standards of medical care. The expert adds that in order to evaluate these potentially fatal conditions, imaging studies such as chest/abdominal x rays are required followed by CT scans. Furthermore, Dr. Makari did not examine the patient at all, making a referral to the hospital more important. Specifically, Plaintiff’s expert disagrees with Dr. Walmsley that Dr. Makari made the appropriate recommendation considering he could not see the patient in person. According to Plaintiff’s expert, this fact only heightens the importance of referring the patient to a medical professional in person, and that because Dr. Makari could not see the patient in person, he should have issued a referral to the emergency department. The expert opines certainty that the approximate 19 hour 40 minute and 5 hour delays caused by Defendants Makari and Brady, respectively, were substantial factors in causing an overall delay of approximately 48 hours in the diagnosis of Vincent Marino’s bowel obstruction and perforations and were substantial factors in significantly reducing the success rate of treatment of the perforations. The expert states that the longer it takes to decompress the intestine, the higher the chance of bowel ischemia, which occurred in this case requiring resection. Furthermore, Plaintiff’s expert in surgery disagrees with defendants’ experts as to what the decedent’s complaints indicated and whether there was a need to send him to the emergency room after calls made to Dr. Makari and Nurse Brady and opines that the delays caused by defendants Makari and Brady caused injury to the decedent. The conflicting opinions between experts raises an issue of fact precluding summary judgment. Although Dr. Makari referred the patient to the ER if his symptoms progressed, plaintiff’s expert opined that based on the history and symptoms and that he didn’t (could not) perform do a physical examination, thus incapable of the knowing whether or not the patient should have gone to the ER that night. It is clear that both experts raise triable issues of fact regarding the care rendered by Dr. Makari on August 7th, 2017. Considering the foregoing conflicting opinions, which are detailed and not speculative, summary judgment is denied as to all claims sounding in medical malpractice relating to defendant Dr. Makari. Shields v. Baktidy, 11 AD3d 671, 672 [2d Dept. 2004]. In Sequence 10, Defendant R.N. Brady moves pursuant to CPLR §3212 for summary judgment in their favor. R.N. Brady, who works as a registered nurse for PUA and deals with post-surgical pediatrics urology patients, answered a phone call from the patient’s father on August 8th regarding the patient’s post-op symptoms. The patient’s father had previously spoken with Dr. Makari on August 7th but called again and spoke with R.N. Brady due to continued concern over his son’s vomiting, nausea and intermittent abdominal pain. To support this motion of summary judgement in the favor of R.N. Brady, defendant offers the expert affirmation of John Connor, M.D., a physician board certified in Urology and Pediatric Urology. Dr. Connor opines that because the patient’s father reported no pain near the incision, no wound infection, and that the patient was able to tolerate food, there was no indication for emergency treatment needed. He further opines that it was an appropriate recommendation by R.N. Brady to advise the patient’s father to continue light meals and increase fluid intake, and to see the pediatrician or go to the emergency room if fever develops or pain worsens. Plaintiff, in opposition, offers the expert testimony of a board certified surgeon. This expert opines that R.N. Brady’s report documents more severe symptoms than Dr. Makari had noted, in that she acknowledges that the patient had vomiting, nausea, and intermittent abdominal pain for 2-3 days at the time of their August 8th phone call. This severity, the expert opines, suggests that an in-person evaluation was warranted no matter what the cause. A three-day period of gastrointestinal symptoms like the ones presented in the patient, they opine, warrants an evaluation even if the diagnosis was gastroenteritis as R.N. Brady had reported. Additionally, the expert opines that this phone call, and recommendation to wait and see if fever develops or pain worsens, was a substantial factor in the overall delay of the patient’s diagnosis and success rate of treatment. While Defendant Brady establishes their prima facie burden on summary judgment, Plaintiff raises issues of fact precluding same. As discussed in relation to Dr. Makari’s motion, Plaintiff submits well detailed, non speculatory expert affirmations as to liability and proximate cause. Summary judgment may not be awarded in medical malpractice action where parties adduce conflicting opinions of medical experts, and moreover, contrary to the appellants’ contentions, where the opinions of the plaintiffs’ expert were based upon facts in evidence and were not conclusory or otherwise insufficient. Shields v. Baktidy, 11 AD3d 671, 672 [2d Dept. 2004]. As it undisputed that Defendant Brady was an employee of PUA at the time of the alleged malpractice, they are vicariously liable for the acts of Nurse Brady. It is well established that a professional corporation may be held vicariously liable for the tort of its employee committed within the scope of the corporation’s business. Monir v. Khandakar, 30 A.D.3d 487, 489 [2d Dept 2006]; Connell v. Hayden, 83 A.D.2d 30, 46 [2d Dept 1981]. The request for summary judgment on behalf of PUA is consequently Denied. Accordingly, the motion seeking summary judgment on behalf of Defendants Patricia A. Mullen, M.D. and Staten Island Hospital (Sequence 8) is DENIED. That branch of the motion seeking summary judgment as to Defendant, John H. Makari, M.D. (Sequence 9) is DENIED. That branch of the motion seeking Summary Judgment as to Defendant, R.N. Peggy Brady and Pediatric Urology Associates (PUA) (Sequence 10) is DENIED. Those branches of the motions seeking summary judgment on behalf of Defendants Erick Nelson, M.D. (Sequence 9) and Steven C. Friedman, M.D. (Sequence 10) are GRANTED, without opposition, and the action is dismissed as against them. The Clerk is directed to enter judgment in favor of ERICK NELSEN, M.D. and STEVEN C. FRIEDMAN, M.D. This constitutes the decision and order of the court. Dated: December 18, 2023
