The following e-filed documents, listed by NYSCEF document number (Motion 001) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, defendants’ motion for summary judgment is granted to the extent that the complaint is severed and dismissed as against the defendants The Mount Sinai Medical Center, Inc., The Spine Center at the Mount Sinai Hospital, and Mount Sinai Doctors Faculty Practice1. The balance of the motion is in all respects denied. The defendant The Mount Sinai Hospital remains in this case only as to its vicarious liability for the alleged negligent conduct, if any, of the defendant, Sheeraz Qureshi, M.D. This matter arises out of alleged medical malpractice rendered to plaintiff regarding two surgeries to his lumbar spine: a July 1, 2016, transforaminal lumbar interbody fusion (“TLIF”) at L5-S1 with placement of an interbody cage, and a revision surgery performed and on January 9, 2017. In a complaint alleging medical malpractice and lack of informed consent, the plaintiff, Gurpreet Singh Walia, sets forth that defendants’ negligence occurred between May 20, 2016 and February 8, 2018, when Dr. Qureshi: (1) negligently performed and improperly placed the hardware during the July 1, 2016 TLIF: (2) failed to diagnose and investigate neurological signs and symptoms to the plaintiff’s right lower extremity following the July 1st surgery; (3) failed to obtain appropriate post-surgical diagnostic testing (i.e., no lumbar MRI was ordered in response to a “limited and distorted” July 9, 2019 lumbar CT scan); (4) failed to timely diagnose and investigate the migration of the interbody spacer as described in an August 25, 2016 lumbar CT scan, causing the spacer to compress the nerve root and neural structures at L5-S1 over the course of six months, and (5) negligently performed a contraindicated revision surgery on January 9, 2017. Plaintiff alleges that because of defendants’ negligence, he suffered prolonged compression to the L5-S1 nerve root and neural structures, permanent damage to the right side L5-S1 nerve root, permanent motor weakness, pain, paresthesia, and sensory deficit to his lower extremity, right foot drop, decreased mobility, and the likely need for further surgical interventions. It is undisputed that plaintiff fell at his home on July 8, 2016, seven days post-surgery. Defendants maintain that this fall disrupted the healing process and caused the spacer to slowly shift over time, creating instability within the fusion (see EBT of Dr. Qureshi, pp. 118-119). To prevail on a motion for summary judgment, the proponent must make prima facie showing of entitlement to judgment as a matter of law, through admissible evidence demonstrating the absence of any material issue of fact (see Klein v. City of New York, 89 NY2d 833 [1996]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]; Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). “Since summary judgment is the equivalent of a trial, it has been a cornerstone of New York jurisprudence that the proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law” (Ostrov v. Rozbruch, 91 AD3d 147 [1st Dept. 2012]). In support of the motion defendants submit, inter alia, the expert affirmation of an orthopedic surgeon, Mark Weidenbaum, M.D. (see NYSCEF Doc. No. 40), who opines, within a reasonable degree of medical certainty, that the “treatment rendered by defendants was within the standards of good and acceptable medical practice at the time of the care, did not deviate from the accepted standards of care, and did not proximately cause or contribute to the alleged injuries” (id., para. 5). According to Dr. Weidenbaum: (1) Dr. Qureshi appropriately obtained informed consent for the L5-S1 posterior lumbar decompression with laminectomy and interbody fusion with cage implant performed on July 1, 2016, as evident from plaintiff’s signed consent form, medical records, and his extensive email correspondences with Dr. Qureshi “as to the nature of the procedure as well as risks and complications, which include infection, neurological injury, and incomplete relief of symptoms and/or hardware complications” (id., para. 16-17); (2) the July 1, 2016 surgery was indicated, based upon the severity of plaintiff’s pain and the surgery was properly performed; (3) the intervertebral spacer was placed in a good position and did not cause or contribute to any neurological deficits; (4) a lumbar MRI was contraindicated because the plaintiff had an implanted neurostimulator device which prevented the MRI from being safety performed, and there was no indication to obtain further diagnostic testing after the surgery (id., para. 27); (5) Dr. Qureshi did not fail to investigate the migration of the interbody spacer as described in the August 25, 2016, lumbar CT scan, but “appropriately considered treatment options and charted a plan to treat plaintiff’s symptoms” (id., para. 32); (6) the January 8, 2017, revision surgery was indicated based on plaintiff’s ongoing signs and symptoms including the narrowing of the foramina and lack of effectiveness of conservative treatment options, and (7) Dr. Qureshi properly obtained informed consent and properly performed the revision surgery. In Dr. Weidenbaum’s opinion, plaintiff’s fall on July 8, 2016, seven days post-surgery, “was a pivotal event that broke the chain of causation” creating “trauma to the surgical region and instability” (id., paras. 28-34). “The affirmation of defendant’s expert was sufficient to meet defendants’ prima facie burden of establishing the absence of a departure from good and accepted medical practice, or that any such departure was not a proximate cause of plaintiff’s alleged injuries (Einach v. Lenox Hill Hosp., 160 AD3d 443 [1st Dept. 2018]). “An expert’s opinion must be based on facts in the record or personally known to the witness, and in the absence of such record support, an expert’s opinion is without probative force” (Pascocello v. Jibone, 161 AD3d 516 at 516 [1st Dept. 2018]; [internal citations omitted]). “Where a defendant makes a prima facie case of entitlement to summary judgment dismissing a medical malpractice action by submitting the affirmation from a medical expert establishing that the treatment provided to the injured plaintiff comported with good and accepted practice, the burden shifts to the plaintiff to present evidence in admissible form that demonstrates the existence of a triable issue of fact” (Bartolacci-Meir v. Sassoon, 149 AD3d 567 at 570 [1st Dept. 2017]; see also DeCintio v. Lawrence Hosp., 25 AD3d 320 [1st Dept. 2006]; Ducasse v. New York City Health & Hosps. Corp., 148 AD3d 434 [1st Dept. 2017]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In opposition to the motion, plaintiff submits, inter alia, the affirmation of orthopedic surgeon Thomas Kramer, M.D. (see NYSCEF Doc. No. 72), who is unequivocal that “a spacer compressing a nerve root does not permit a wait-and-see approach…[and] it is a departure from the standard of care to wait and see rather than proceed, then, with surgical decompression” (id., para. 46). Dr. Kramer is emphatic that the limited medical records do not reflect that Dr. Qureshi discussed or offered treatment options aside from surgery itself (id., para. 18). Dr. Kramer points to the absence of a medical note memorializing the purported consent discussion: “In this case, neither the medical chart, the consent form, nor the emails reflect appropriate consent was obtained regarding the risks that ultimately manifested and beset Mr. Walia — the risk of hardware migration leading to nerve root compression, radiculopathy, and neurological injury” (id., para. 21; emphasis supplied). Relying on the medical records, Dr. Kramer points to the absence of the diagnosis of “radiculopathy” as indication for the July 1, 2016, surgery. He specifically disagrees with Dr. Weidenbaum’s opinion that plaintiff’s post-operative symptoms did not indicate neurological issues or nerve impingement and opines, rather, that Mr. Walia’s prolonged neurological symptoms, extending beyond the typical window of post-op inflammation, suggested another etiology. Further, diagnostic testing to assess whether the newly implanted spacer was the cause of plaintiff’s new onset post-op right lower extremity symptoms may have been performed by “a repeat CT, CT myelo, and/or EMG” if it was not safe to perform the MRI (id., para. 38). Critically, Dr. Kramer points to Dr. Qureshi’s acknowledgment that the spacer had evidently begun to migrate as early as July 9, 2016, as depicted in the July 9th CT scan: “[G]ood practice dictates that Dr. Qureshi should have placed ‘spacer migration potentially causing right lower extremity symptoms” at the top of the differential (id., para. 36). “Acknowledging this differential as early as July 9th could have led to an earlier, more thorough workup; it could have led to earlier surgical decompression; it could have led to mitigation and avoidance of permanent right lower extremity neurological injury from prolonged spacer compression” (id.). The foregoing expert affirmation raises clear questions of fact sufficient to defeat summary judgment. “The medical experts’ conflicting opinions…raise issues of fact that must be resolved at trial” (Hendricks v. Transcare New York Inc., 158 AD3d 477, 478 [1st Dept. 2018]). The conflicting evidence sub judice provides the quintessential reason for the denial of summary judgment. As such, that branch of the motion for summary judgment by the defendants Sheeraz A. Qureshi, M.D., and The Mount Sinai Hospital is denied. Accordingly, it is ORDERED that that branch of the motion for summary judgment by the defendants The Mount Sinai Center, Inc., The Spine Center at the Mount Sinai Hospital and Mount Sinai Doctors Faculty Practice is granted; and it is further ORDERED that that branch of the motion for summary judgment by the defendants Sheeraz A. Qureshi, M.D., the Mount Sinai Hospital, pursuant to CPLR 3212 is denied as previously delineated in this Order; and it is further ORDERED that the Clerk enter judgment in favor of defendants The Mount Sinai Center, Inc., The Spine Center and the Mount Sinai Hospital and Mount Sinai Doctors Faculty Practice dismissing the complaint; and it is further ORDERED that any and all additional requests for relief are hereby denied; and it is further ORDERED that the parties shall appear for a virtual pre-trial conference via Microsoft Teams on March 19, 2024 at 10:00 a.m. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: January 9, 2024
