The following e-filed documents, listed by NYSCEF document number (Motion 004) 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 140, 142, 147, 148, 149, 151, 156, 157 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION Upon the foregoing documents, defendants Anupkumar Patel, M.D. (“Dr. Patel”) and Beth Israel Medical Center (“BIMC”) (collectively “defendants”) move, pursuant to CPLR §3212, for an order seeking summary judgment dismissing the complaint.1 Plaintiff Bukurie Vucetaj (“plaintiff”) opposes the motion. BACKGROUND FACTS Plaintiff’s medical history includes a diagnosis of scoliosis and repetitive stress injuries which began on March 26, 2008. Plaintiff’s history also indicates that she worked seven hours per day, four to five days a week, for at least 12 years, standing and tweezing eyebrows with her right arm. In 2011 and 2012, the plaintiff presented to her primary care provider, Dr. Jeanne Travis, with complaints of hip pain and aches in her shoulders and upper back. On February 12, 2014, plaintiff began treating with Ear, Nose, and Throat Surgeon Dr. Linda Dahl for complaints related to sinus congestion. Dr. Dahl recommended septoplasty, turbinoplasty, and sinus surgery with the removal of polyps. On October 2, 2014, plaintiff presented to BIMC for a deviated septum repair by Dr. Dahl. Previously, in a September 24, 2014 pre-operative visit, the plaintiff saw Dr. Vincent Yen and complained of muscle pain and upper extremity myalgia and weakness lasting about one month, as well as tingling and paresthesia in both hands and lower extremities. Plaintiff presented to Tomo Ando, M.D., for an EKG and pre-operative clearance for the deviated septum repair. At that visit, she complained of tenderness and weakness in her arm. On the day of the procedure, Anesthesiologist, Dr. Patel, examined and assessed the plaintiff, and completed the Anesthesia Pre-Operative Evaluation form. Dr. Patel explained the risks, benefits, possible complications and alternatives of anesthesia to plaintiff. She signed a form entitled, “Request and Authorization for Operation and/or Procedure,” in which she authorized Dr. Dahl to perform the sinus surgery. The form also states that plaintiff consented to the administration of anesthetics and recognized that there are “always risks to life and health” associated with anesthesia, and that the risks, benefits and alternatives had been fully explained. Upon plaintiff’s arrival to the operating room, she was asked to lie down in the supine position where her arms were secured using Velcro straps at her wrists and elbows. A draw sheet was wrapped around her body and arms, and the sheet was then tucked under her body. A safety strap was also placed around her thighs to ensure that she remained safely on the bed. Dr. Patel administered anesthesia, and throughout the procedure, he monitored plaintiff’s vital signs, and recorded the information every five minutes. Dr. Dahl removed the nasal polyps, and the septum was corrected without complication. After the procedure was completed, the plaintiff was transferred to the Post-Anesthesia Care Unit, where Dr. Patel examined plaintiff, and she expressed no complaints other than itchiness. He testified at his deposition that if he had any reason to suspect she experienced any pain or stiffness, such a concern would have been recorded. On October 8, 2014, the plaintiff had a follow-up appointment with Dr. Dahl and reported that she had soreness in her right arm. Dr. Dahl diagnosed the plaintiff with possible bursitis and referred her to an Orthopedic Surgeon. On October 9, 2014, the plaintiff saw Orthopedic Surgeon Dr. Aruna Seneviratne. She complained of right shoulder pain, which began several months prior, and an MRI of the right shoulder at Lenox Hill Hospital revealed “a torn rotator cuff and “no significant atrophy or rotator cuff muscle edema.” On October 17, 2014, the plaintiff saw Orthopedic Surgeon Dr. Frank Cordasco at the Hospital for Special Surgery, and complained of upper and lower extremity discomfort. On January 8, 2015, plaintiff underwent a right shoulder rotator cuff repair by Dr. Charles Jobin and a revision surgery by Dr. Jobin on January 19, 2017. On October 12, 2017, the plaintiff saw Benjamin Oshlag, M.D., and was diagnosed with trochanteric bursitis of the right hip. Thereafter, plaintiff commenced the underlying action sounding in medical malpractice, wherein plaintiff alleges that the defendants negligently positioned her for a septoplasty at BIMC on October 2, 2014, thereby causing her to sustain a torn rotator cuff and hip bursitis. As a result of the alleged injury to her rotator cuff and tear of her right shoulder, plaintiff claims that she required an arthroscopic repair on January 8, 2015, and a subsequent revision surgery on January 19, 2017. Plaintiff’s complaint also includes a cause of action for lack of informed consent, and negligent hiring and credentialing as to BIMC. DISCUSSION In support of their motions for summary judgment, defendants argue that plaintiff’s claims lack merit, that there are no material issues of fact, and that plaintiff’s complaint should be dismissed pursuant to CPLR §3212. It is well settled that “[t]o 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 [1st Dept 2010]; Elias v. Bash, 54 AD3d 354 [2d Dept 2008]; DeFilippo v. New York Downtown Hosp., 10 AD3d 521 [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 Roques v. Noble, 73 AD3d at 206; Joyner-Pack v. Sykes, 54 AD3d 727 [2d Dept 2008]; Koi Hou Chan v. Yeung, 66 AD3d 642 [2d Dept 2009]; Jones v. Ricciardelli, 40 AD3d 935 [2d Dept 2007]). 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]). In support of their motion, defendants submit the expert affirmations of board-certified Orthopedic Surgeon Ramesh Gidumal, M.D. (“Dr. Gidumal”) and board-certified Anesthesiologist Marc Kanchuger, M.D. (“Dr. Kanchuger”), respectively, who opine to a reasonable degree of medical certainty, based on the pleadings, plaintiff’s medical records, and deposition transcripts of the plaintiff, Drs. Dahl and Patel, and Anne Romano, R.N. Dr. Gidumal opines that Dr. Patel performed within the standard of care at all times and that the plaintiff was properly positioned for the septoplasty procedure in the supine position, lying flat on her back with her arms resting at her sides properly secured to arm boards using Velcro straps, and that a draw sheet was appropriately secured around the plaintiff to ensure she remained in the same position throughout the procedure. As a result, Dr. Gidumal opines that the plaintiff could not have sustained any injury to her shoulder or hip from lying in the supine position with her arms at her side, particularly for such a short period of time. Based upon Dr. Gidumal’s review of the record, it is his opinion that Dr. Patel did not proximately cause the injuries to plaintiff’s shoulder or hip during the October 2014 septoplasty. It is Dr. Gidumal’s opinion that the plaintiff had a pre-existing degenerative shoulder injury related to her age and many years of repetitive movements and stress on her right shoulder from her work as an eyebrow specialist. His opinion is consistent with the October 9, 2014 MRI, which revealed degenerative tears that were pre-existing from before the October 2014 septoplasty and the medical record of Dr. Cordasco, wherein he told plaintiff that “she likely had a rotator cuff tear before her surgery, which has been an ongoing process over the course of years, given her work-related and life-related activities.” In this regard, Dr. Gidumal also opines that the plaintiff developed hip bursitis years after the October 2014 septoplasty, likely due to her age and many years of working while standing on her feet. He finds that there is no indication in the records or in the deposition testimony of any event which could have caused the plaintiff to sustain an acute tear at any time during the BIMC admission. Dr. Gidumal opines that there is no indication that the plaintiff expressed any complaints related to her hip or shoulder at any time during the BIMC admission. Notably, he opines that the plaintiff also contacted the hospital the day following the surgery, and did not express any complaints related to her hip or shoulder. Similarly, Dr. Kanchuger opines that plaintiff was appropriately positioned for the septoplasty procedure, and that the anesthesia services provided were entirely within the standard of care. He further opines that if the plaintiff had woken abruptly, even though there is no record that it did occur, she could not have injured her shoulder or hip because she was properly secured to the bed. He further opines that the plaintiff was not repositioned due to the length of the procedure, and contrary to plaintiff’s contentions, the lack of repositioning was appropriate. Dr. Kanchuger opines that the plaintiff was appropriately assessed by Dr. Patel throughout the administration of anesthesia, and during and after the procedure. He notes that she reported itchiness on her abdomen and back, but she was otherwise comfortable and expressed no other complaints. Defendants also contend that plaintiff’s claim for lack of informed consent must be dismissed. To have a valid claim for lack of informed consent, plaintiff must establish that pursuant to an order “(1) the defendant physician failed to disclose the material risks, benefits, and alternatives to the contemplated medical procedure which a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation, and (2) a reasonably prudent person in the patient’s position would not have undergone the procedure if he or she had been fully informed.” (Public Health Law §2805- d) (Rodriguez v. New York City Health & Hosps. Corp., 50 AD3d 464 [1st Dept 2008] [internal citations omitted]). Firstly, the record demonstrates that the consent form signed by plaintiff establishes that she consented to the administration of anesthetics and recognized that there are “always risks to life and health” associated with anesthesia, and that the risks, benefits and alternatives had been fully explained by Dr. Patel. Plaintiff identified her signature on this consent form at her deposition. Both experts opine that Dr. Patel properly discussed the possible risks, benefits, and alternatives of anesthesia with the plaintiff and advised her of the potential complications of anesthesia. It is well settled that a defendant establishes prima facie entitlement to judgment as a matter of law dismissing a cause of action of a lack of informed consent by demonstrating the patient signed a consent form after being informed of the procedure and alternatives, as well as the reasonably foreseeable risks and benefits (Ortaglia v. Scanlon, 35 AD3d 421 [2d Dept 2006]; Ericson v. Palleschi, 23 AD3d 608 [2d Dept 2005]; Wilson v. Buffa, 294 AD2d 357 [2d Dept 2002]). In addition to plaintiff’s signed consent form, the experts also opine that any injury to the plaintiff’s shoulder or hip, such as a torn rotator cuff and hip bursitis, are not known risks or complications of anesthesia, and therefore did not need to be discussed by Dr. Patel. Specifically, Dr. Kanchuger opines that it was outside the scope of Dr. Patel’s duties as an anesthesiologist to obtain informed consent for any portion of the surgery beyond the anesthesia services that he provided. Based on the expert affirmations, Dr. Patel has established prima facie entitlement to summary judgment as a matter of law as to plaintiff’s claim for malpractice and lack of informed consent. Since the Court finds that dismissal is warranted as to Dr. Patel, there can be no vicarious liability for plaintiff’s injuries as to BIMC (see Kukic v. Grand, 84 AD3d 609, 610 [1st Dept 2011]). Dismissal is also warranted as to plaintiff’s claim of negligent hiring as to BIMC since plaintiff fails to particularize or even address her claim for negligent hiring in any of the pleadings. Where a plaintiff cannot offer any proof to show that the employer knew or should have known of the employee’s propensity for the conduct causing the injury, a negligent hiring claim must be dismissed (see Shewbaran v. Laufer, 177 AD3d 510 [1st Dept 2019]). Lastly, as to plaintiff’s negligent credentialing claim, each respective expert opines that both Dr. Patel and Ann Romano, R.N. were properly credentialed. To establish a negligent credentialing claim, a plaintiff must prove that the hospital failed to develop and adhere to reasonable procedures for reviewing a physician’s qualifications (see Ortiz v. Jaber, 44 AD3d 632 [2d Dept 2007]). Thus, defendants have established prima facie that plaintiff has failed to plead a cause of action sounding in negligent credentialing as to defendant BIMC. 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 opposition to the defendants’ motion, plaintiff submits the affirmation of a boardcertified Anesthesiologist who opines that her rotator cuff tear was the result of the surgery performed by Dr. Dahl, and that Dr. Patel deviated from the good and accepted medical practice by failing to take measures to protect the plaintiff’s shoulders during the procedure, which was the proximate cause of plaintiff’s injuries. While plaintiff’s expert concedes that plaintiff was properly positioned in the supine position, he opines that Dr. Patel deviated from the standard of care by failing to utilize contoured arm board pads during the surgery to support plaintiff’s shoulders, and to provide adequate pressure release during the procedure. The Court notes that plaintiff’s expert did not demonstrate how pressure was applied to the plaintiff’s shoulders during the septoplasty, or how pressure should have been applied. Accordingly, the Court finds the expert’s opinion on this issue is conclusory and legally insufficient to rebut defendants prima facie showing that plaintiff was properly positioned for the septoplasty. It is well-settled that an expert opinion that is not supported by an evidentiary foundation or one based on speculation lacks probative value (Park v. Kovachevich, 116 AD3d 182, 191 [1st Dept 2014], lv denied 23 NY3d 906 [2014]). Significantly, plaintiff’s expert based his opinion on a new theory of liability, since the failure to provide arm padding is not asserted in the complaint or bill of particulars. Plaintiff cannot defeat a summary judgment motion by asserting a new theory of liability for the first time in opposition papers (Keilany B. v. City of New York, 122 AD3d 424, [1st Dept 2014]; Ostrov v. Rozbruch, 91 AD3d 147 [1st Dept 2012]; Abalola v. Flower Hosp., 44 AD3d 522 [1st Dept 2007]). Additionally, plaintiff’s expert failed to sufficiently refute or address defendants’ expert’s opinion on the issue of plaintiff’s rotator cuff tear. Dr. Gidumal opines that the plaintiff had a complete tear of the supraspinatus tendon, and also had a partial tear of the infraspinatus tendon. According to Dr. Gidumal, rotator cuff tears are caused by either acute injuries or degeneration. Here, Dr. Gidumal opines that the plaintiff had degenerative tears due to wearing down of the tendon caused by the repetitive motion and stress on her shoulders from her occupation, and that there were documented complaints of shoulder pain six (6) years before the October 2014 septoplasty. By contrast, plaintiff’s expert opines that plaintiff did not have a complete tear of her rotator cuff prior to the surgery performed by Dr. Dahl, since the pain experienced by plaintiff was not constant throughout her pre-operative exams. Plaintiff’s expert fails to specifically address Dr. Gidumal’s opinion that in order to sustain an acute tear, plaintiff’s arm would have to have been pulled away from her body with such force to cause the tendons to tear away from her humerus, and there is no evidence that this occurred. The Court finds that plaintiff failed to raise a triable issue of fact to rebut defendants’ prima facie showing of summary judgment as to medical malpractice, and any claims arising therefrom including vicarious liability. The Court notes that plaintiff’s claims of lack of informed consent and negligent credentialing, hiring and/or supervision are also dismissed since plaintiff did not oppose the branch of defendants’ motion seeking dismissal of these claims. Based on the foregoing, it is hereby ORDERED AND AJDUDGED, that the defendants’ motion seeking dismissal of all claims against defendant Dr. Patel and BIMC are granted, and it is further, ORDERED that the defendants are directed to serve this order with notice of entry on the plaintiff and the Clerk of New York County within twenty (20) days of the date of this order; and it is further ORDERED, that the Clerk of the Court of New York County, is directed to enter judgment in accordance with this order. This constitutes the Decision and Order of the Court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: December 13, 2023
