The following e-filed documents, listed by NYSCEF document number (Motion 001) 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, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 90 were read on this motion to/for JUDGMENT — SUMMARY. DECISION ORDER ON MOTION Upon the foregoing documents and after oral argument, defendants JOSEPH TSENG, M.D. (“Dr. Tseng”) and RETINA ASSOCIATES OF NEW YORK (“Retina Associates”) move for an order granting summary judgment, pursuant to CPLR §3212, dismissing the complaint, with prejudice, and amending the caption and severing/removing defendants JOSEPH TSENG, M.D. and RETINA ASSOCIATES OF NEW YORK from the caption, and directing the Clerk to enter judgment accordingly. Plaintiff opposes the motion. Plaintiff Larry Pearson commenced this action against Dr. Tseng and Retina Associates, as the Administrator of the estate of decedent, Ruby Pearson (“Pearson”). Dr. Tseng is a retinal specialist and ophthalmologist who joined Retina Associates in 2013. Plaintiff’s Bill of Particulars alleges that Dr. Tseng was negligent after he elected to proceed with elective ophthalmic surgery on April 25, 2019 of Pearson and in discharging Pearson from Lenox Hill Hospital. Further, the plaintiff claims, inter alia, that based on the alleged medical malpractice of the moving defendants, Pearson sustained injuries, including myocardial infarction, bronchopneumonia, anoxic brain injury and death. Other than the claims against Dr. Tseng, there are no separate claims of negligence against Retina Associates. BACKGROUND On April 1, 2019, Pearson presented to Dr. Tseng with complaints of intermittent blurry vision in both eyes after cataract surgery in February and March of 2019. It was noted that her past medical history was significant for congestive heart failure, type 2 diabetes, hypercholesterolemia, hypertension and kidney disease. Her past surgical history included coronary artery disease requiring stent placement in 2015. After performing the appropriate testing, Dr. Tseng determined that Pearson had diabetic eye disease and indicated that there was a panretinal endolaser photocoagulation (“PPV”) surgery that could be performed to attempt to correct her vision. Dr. Tseng advised plaintiff that it was necessary to obtain medical clearance in order to proceed with the PPV. On April 11, 2019, Pearson presented to Dr. Yakubov, her primary care physician and co-defendant, for pre-operative clearance. Upon physical examination, Dr. Yakubov cleared Pearson for surgery, noting “no contradictions”. Thereafter, on April 15, 2019, panretinal photocoagulation (“PRP”), a laser treatment, was performed on Pearson in order to stabilize the retina prior to surgery. Following the PRP laser treatment performed by Dr. Tseng on April 15, 2019, he determined that Pearson’s condition remained unchanged and that the PPV was indicated. On April 23, 2019, Pearson filled out a pre-procedure form at Manhattan Eye, Ear and Throat/Lenox Hill Hospital wherein she noted her history of high blood pressure, type 2 diabetes and stent placement, and denied any neurological, psychiatric, musculoskeletal, respiratory and hematologic problems. On April 25, 2019, Pearson was admitted to Manhattan Eye, Ear and Throat/Lenox Hill Hospital to undergo the PPV procedure. Anesthesia was administered by codefendant Biserka Kargacin, M.D. (“Dr. Kargacin”), who noted that Pearson had severe systemic disease. At 6:30 a.m., the medical record indicates that Pearson’s vital signs and oxygen saturation level (“O2″) were normal. At 7:30 a.m., when she was first brought into the operating room, Dr. Kargacin documented that plaintiff decedent’s O2 level had dropped to 83 percent. Additional oxygen was administered and her O2 level increased to 90 percent, and the procedure began at 8:00 a.m. The procedure concluded at 8:43 a.m. According to Dr. Tseng’s deposition testimony, he was not advised of the decreased oxygen saturation and documented that the procedure was performed without complications. Pearson was transferred to the Post-Anesthesia Care Unit (“PACU”) in stable condition. At 8:46 a.m. it was documented that she was alert and oriented and her respirations were unlabored. Her O2 level was measured as 92 percent, and Dr. Kargacin prescribed oxygen. At 9:30 a.m., Pearson’s O2 was measured at 95 percent. She was discharged from the PACU by non-party Dr. Richard Lem at 10:20 a.m., without any complaints of pain, shortness of breath or respiratory distress. According to the record, Dr. Tseng had last seen Pearson after he discharged her from surgery to the PACU. According to the deposition testimony of Pearson’s son, Larry Pearson, she was discharged accompanied by her grandson. During the ride home from the hospital, she passed out in the taxi. The taxi took her to New York Presbyterian Hospital (“NYPH”), and at approximately 10:56 a.m., when she presented to NYPH, she was noted to be unresponsive, pulseless and unconscious, at which time CPR was initiated. Pearson was diagnosed with cardiac arrest of unknown cause and remained unresponsive until her death on May 10, 2019. DISCUSSION It is well settled that a party moving for summary judgment “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” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). The “facts must be viewed in the light most favorable to the non-moving party” (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted]). Once the moving party has met this prima facie burden, the burden shifts to the nonmoving party to furnish evidence in admissible form sufficient to raise a material issue of fact (Alvarez, 68 NY2d at 324). The moving party’s “[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Id.). In a medical malpractice action, plaintiff must show, through a medical expert, both a deviation from accepted standards of medical care and that the treatment rendered by the moving defendant was a proximate cause of plaintiff’s injuries (see e.g., Kaffka v. New York Hosp., 89 NY2d 913 [1996]; Ferrara v. South Shore Orthopedic Assoc., 178 AD2d 364 [1st Dept 1991]). In the absence of evidence that defendant’s conduct was a proximate cause of plaintiff’s injury, summary judgment must be granted to defendant as a matter of law. In support of the motion, the defendants submit the expert affirmation of Danielle S. Strauss, M.D. (“Dr. Strauss”), a board-certified Ophthalmologist, and Elias G. Sakalis, M.D. (“Dr. Sakalis”), a board-certified Internist. Both experts opine to a reasonable degree of medical certainty, based upon a review of the pleadings, relevant medical records, and deposition testimony. Dr. Strauss opines that the ophthalmological treatment rendered to Pearson by defendantDr. Tseng in April 2019 was within the standard of care and did not cause any of the alleged injuries. Specifically, Dr. Strauss opines, inter alia, that: 1) Dr. Tseng appropriately referred Pearson for medical clearance prior to performing the elective procedures; 2) Dr. Tseng appropriately relied on the medical clearance provided by plaintiff decedent’s primary care physician, Dr. Yakubov, and that if cardiology clearance were deemed necessary it was the responsibility of Dr. Yakubov and not Dr. Tseng; 4) Dr. Tseng had no duty or obligation to monitor Pearson’s respiratory status prior to, during or following the procedure, since it was the standard of care of the anesthesiologist and hospital staff to assess and monitor vital signs, including O2 levels, once Pearson was admitted to the hospital for surgery; 5) Dr. Tseng’s responsibility was to ensure the ophthalmological surgical procedure was performed correctly, and that any decisions or additional treatment indicated related only to plaintiff decedent’s ophthalmological condition; 6) it was within the standard of care for Dr. Tseng to rely upon Dr. Kargacin’s assessment and medical judgment, and if there was any reason not to proceed with the surgery it was Dr. Kargacin’s responsibility to advise Dr. Tseng; 7) Dr. Tseng did not deviate from the standard of care in discharging Pearson, since the determination whether it is appropriate to discharge a patient from the PACU following ophthalmological surgery is the responsibility of hospital staff and anesthesiologists, and in the case at bar, anesthesiologist Dr. Richard Lem discharged Pearson. Further, Dr. Strauss opines that, to the extent that the Bill of Particulars contains allegations regarding treatment provided by Dr. Tseng, which are not addressed in the affirmation, that Dr. Tseng did not depart from accepted standards of care and that his care was not a proximate cause of plaintiff decedent’s injuries. Dr. Sakalis concurs with the opinion of Dr. Struass, and also opines that the care and medical treatment rendered to Pearson by Dr. Tseng in April 2019 was within the standard of care and did not cause any of plaintiff’s alleged injuries. In this regard, Dr. Sakalis opines that: 1) Dr. Tseng appropriately sought medical clearance prior to the procedures, and that it was within the standard of care for him to rely on the determination of Dr. Yakubov, who medically cleared plaintiff’s decedent to undergo the surgery; 2) it was the responsibility of Dr. Kargacin and not Dr. Tseng, to monitor plaintiff decedent’s respiratory status prior to, during or following the procedure; and 3) Dr. Tseng was not responsible for determining whether Pearson should be discharged from the hospital. Notably, Dr.Sakalis opines that the management of plaintiff decedent’s cardiovascular condition and other underlying medical conditions was outside of Dr. Tseng’s field of expertise, and if any cardiac or other medical clearance was necessary it was the responsibility of Dr. Yakubov. Dr. Tseng has demonstrated his prima facie entitlement to summary judgment as a matter of law through the expert affirmations of Dr. Strauss and Dr. Sakalis, that he did not depart from good and accepted standards of medical care in treating Pearson in April 2019, and that the alleged departures did not proximately cause plaintiff decedent’s claimed injuries. In opposition, plaintiff submits the affidavit of Neal Brown, M.D. (“Dr. Brown”), an Ophthalmologist, and the affirmation of Kenneth Pinsker, M.D. (“Dr. Pinsker”), a Professor of Medicine at the Albert Einstein College of Medicine, whose background includes pulmonology and internal medicine practice. Plaintiff’s experts opine to a reasonable degree of medical certainty based upon review of the same documents reviewed by the defendants’ experts. Dr. Brown opines that: 1) Dr. Tseng had or should have had available to him, all the information required for him to decide, in accordance with the prevailing standard of care, whether he should abort the elective procedure; 2) both Dr. Tseng and Dr. Kargacin were responsible for making the decision whether to proceed with the surgery, and contrary to the defendants’ experts’ opinion, it was not solely Dr. Kargacin’s determination; 3) Dr. Tseng departed from good and accepted medical care in failing to abort the surgery in light of an unexplained oxygen saturation of 83 percent, increased blood pressure from 135/69 to 178/88, a glucose of 200, and swollen ankles in a 74-year-old patient with a history of congestive heart failure. According to Dr. Brown, an O2 saturation level of 83 percent constitutes a medical emergency and would ordinarily require immediate hospitalization, and in view of Pearson’s circumstances and medical history, which Dr. Tseng was aware of prior to the surgery, a thorough workup was required before proceeding with an elective ophthalmologic procedure. Dr. Brown notes that neither of the defendants’ experts render an opinion as to whether the procedure should have proceeded based on the symptoms presented by Pearson just prior to the surgery. Dr. Brown concludes in his affirmation that “it is my opinion that the defendant, Dr. Joseph Tseng, deviated from the accepted standard of care by proceeding with the elective ophthalmological surgical procedure on April 25, 2019. The accepted standard of care mandated that the procedure be aborted. Ms. Pearson required further work-up and evaluation before proceeding to optimize her condition and insure, as best possible, her safety.” Similarly, Dr. Pinsker opines that Dr. Tseng deviated from the standard of care in proceeding with the surgery, based on Pearson’s drop in O2 and known past medical history, which required immediate cancellation of the surgery, and an evaluation to determine the cause of her worsening cardio-respiratory status. Dr. Pinsker opines that “[w]hile it is accepted practice for a surgeon to rely on the anesthesiologist for immediate pre-operative evaluation, that standard does not apply in a case such as this where the patient has multiple medical issues which are unstable at the time of surgery.” He points out the conflicting deposition testimony of Dr. Tseng and Dr. Kargacin as to whether Dr. Tseng was told about Pearson’s drop in O2 level to 83 percent prior to the start of the surgery. Dr.Pinsker further opines that Dr. Tseng’s decision to operate, “along with the concurrent use of anesthetic drugs placed an increased metabolic burden on [Pearson's] already compromised heart. These actions worsened her existing cardiac ischemia as shown by the presence of a fresh myocardial infarction as found by the pathologist…at autopsy.” The Court finds that plaintiff’s experts have raised genuine triable issues of fact as to whether it was solely Dr. Tseng’s responsibility to proceed with the April 25, 2019, elective surgery, and whether the duty to proceed was a deviation from the standard of care. Since the opinions of plaintiff’s experts are in direct contravention to the opinions of the defendants’ experts, summary judgment is not warranted. “Summary judgment is not appropriate…[when] the parties [submit] conflicting medical expert opinions because [s]uch conflicting expert opinions will raise credibility issues which can only be resolved by a jury” (Cummings v. Brooklyn Hosp. Ctr., 147 AD3d 902, 904 [2d Dept 2017], quoting DiGeronimo v. Fuchs, 101 AD3d 933 [2d Dept 2012] [internal quotation marks omitted]; see Elmes v. Yelon, 140 AD3d 1009 [2d Dept 2016]; Leto v. Feld, 131 AD3d 590 [2d Dept 2015]). As to defendant Retina Associates, since plaintiff has raised a question of fact as to the medical care and treatment provided by Dr. Tseng, an employee of Retina Associates, all allegations against Retina Associates sounding in vicarious liability arising from the actions or inactions of Dr. Tseng, cannot be dismissed. It is well settled that a hospital or other medical facility is liable for the negligence or malpractice of its employees (see Hill v. St. Clare’s Hosp., 67 NY2d 72 [1986]). Similarly, any derivative claim sounding in wrongful death of plaintiff’s decedent cannot be dismissed. The courts have consistently held that a derivative action cannot survive dismissal of the underlying action and stand on its own. (see DeAngelis v. Lutheran Medical Center, 84 AD2d 17 [2d Dept 1981]). Lastly, the Court notes that the plaintiff’s experts fail to rebut the defendants’ experts’ opinion that Dr. Tseng did not deviate from accepted standards of medical care in permitting Pearson’s premature discharge from the hospital, and therefore that claim is dismissed. Accordingly, it is hereby, ORDERED that defendants Joseph Tseng, M.D. and Retina Associates of New York’s summary judgment motion is granted to the extent of dismissing the allegation of premature discharge and in all other aspects, is denied, and it is further, ORDERED that the moving defendants serve a copy of this order, together with notice of entry on plaintiff, within 30 days of the date of this order, and it is further, ORDERED, that an in-person settlement conference is scheduled for July 16th, 2024, at 10:30 am, Part 6, 60 Centre Street, Room 351. This constitutes the Decision and Order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: June 11, 2024
