The following e-filed papers read herein: NYCEF Doc Nos.: Notice of Motion, Affirmations, and Exhibits 96-111 Affirmations (Affidavits) in Opposition, and Exhibits 115-117 Reply Affirmations and Exhibits 118 DECISION AND ORDER In this action to recover damages for medical malpractice and wrongful death, defendants Daniel G. Swistel, M.D., Edgar Argulian, M.D. (“Dr. Argulian”), Martin Y. Tabaksblat, M.D. (“Dr. Tabaksblat”), Robert A. Leber, M.D., Bette Kim, M.D. (“Dr. Kim”), Neda Sadeghi, M.D., Yang Chun, M.D., Vikram Agarwal, M.D., Irshad Bhatty, M.D., Marcelle Commissiong, R.N. (“RN Commissiong”), Peggy A. Trainor-O’Malley NP (“NP Trainor-O’Malley”), Chris Gasho, RN., Glenn Gamboa, R.N., Yvonne McKie, R.N., Kavita Ramrattan, RN., Mairead Mary Casey, R.N., and Mount Sinai St. Luke’s — Mount Sinai Roosevelt collectively moved for summary judgment dismissing all claims of Joseph A. Helferty, Jr., as Administrator of the Estate of his late mother, Gina Sorbera (“Plaintiff”). Plaintiff opposed the motion as against Dr. Argulian, Dr. Tabaksblat, and NP Trainor-O’Malley1. FACTS Plaintiff’s decedent, Gina Sorbera, age 50, sought treatment from Dr. Kim, a cardiology attending, who diagnosed her with hypertrophic cardiomyopathy and recommended a septal myectomy, which is an elective open heart procedure. The procedure was performed on June 18, 2014. After the surgery, the decedent was transferred to the Cardiac Care Unit where she received Heparin as well as a pneumatic sequential compression device that was placed on her legs for prophylaxis against deep vein thrombosis (“DVT”). On June 19, 2014, the day after the surgery, the decedent was examined by Dr. Kim, who noted that she was awake and complaining of pain at the incision site. She was hemodynamically stable, her heart rhythm was stable, and her vital signs were within the normal range. On June 20, 2014, the decedent was examined again by Dr. Kim, who noted that despite complaints of incision site pain, the decedent’s vital signs were within normal range without any shortness of breath or swelling in the lower extremities. On June 21, 2014, NP Trainor-O’Malley noted that the decedent had incision site pain, nausea, diminished breath sounds bilaterally, and “Extremities Exam: trace edema B/L (bilateral).” The plan was to administer iron for anemia, Reglan for nausea, monitor labs, and continue other medications. An hour and a half later, Dr. Argulian noted some mild persistent nausea, diminished breath sounds bilaterally and “Extremities Exam: trace edema B/L (bilateral).” On June 22, 2014, at 7:00 a.m. Dr. Tabaksblat examined the decedent and noted nausea, decreased breath sounds, and “EXT: trace edema lower extremities b/I (bilateral).” The plan was to continue monitoring labs, continue medications, and discharge planning. This examination was Dr. Tabaksblat’s only documented involvement in the decedent’s care. At 10:45 a.m. Dr. Argulian examined the decedent and noted complaints of nausea, fatigue, diminished breath sounds and “Extremities Exam: trace edema B/L (bilateral).” and planned to continue telemetry monitoring and fluids. On June 23, 2014, RN Commissiong took the decedent’s vital signs at 2:27 a.m. and again at 3:30 a.m., and noted they were within normal limits. At 4:30 a.m. the decedent’s heart rate rapidly spiked to 120, her pulse and respiratory rates were extremely high, and her blood oxygen level was excessively low. A rapid response team was called and began working on the decedent. Since the decedent’s response was minimal, she was intubated. At 4:48 a.m., the decedent went into cardiac arrest and a code was called. She was resuscitated with chest compressions, defibrillation, and medication. As the decedent was being transported to the Cardiac Care Unit for further treatment, she went into cardiac arrest a second time. Compressions were started, she was shocked twice, and resuscitative medications were given. After thirty-two minutes of resuscitative efforts, the decedent was pronounced dead at 6:12 a.m. An autopsy determined that the cause of death was an acute pulmonary embolism. LAW “Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact.” Goldin Real Estate, LLC v. Shukla, 227 A.D.3d 674, 212 N.Y.S.3d 117 (2d Dept. 2024). It is not the function of a Court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact, or point to the lack thereof. Abruzzi v. Maller, 221 A.D.3d 753, 766, 199 N.Y.S.3d 190, 202 (2d Dept. 2023). The Court is required to view the evidence in the light most favorable to the nonmovant. Silveri v. Glaser, 166 A.D.3d 1044, 87 N.Y.S.3d 254 (2d Dept. 2018). “The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury”. See Neumann v. Silverstein, 227 A.D.3d 914, 209 N.Y.S.3d 584 (2d Dept. 2024). “On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby.” See Sunshine v. Berger, 214 A.D.3d 1020, 1022, 186 N.Y.S.3d 326, 329 (2d Dept. 2023) Where a defendant makes a prima facie showing, “the burden then shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof.” Armond v. Strangio, 227 A.D.3d 758, 210 N.Y.S.3d 491, 493 (2d Dept. 2024). To rebut the defendant’s prima facie showing, plaintiff must submit an expert opinion that specifically addresses the defense expert’s allegations. Daniels v. Pisarenko, 222 A.D.3d 831, 832, 199 N.Y.S.3d 693, 694 (2d Dept. 2023). DISCUSSION Defendants established their prima facie entitlement to summary judgment as a matter of law through the submission of, inter alia, the affirmations of their experts, Dr. Christopher Lau (“Dr. Lau”), a surgeon board certified in surgery and thoracic surgery, Dr. Gerard Catanese (“Dr. Catanese”), a forensic pathologist, and Dr. Mark Silberman (“Dr. Silberman”), an expert board certified in Critical Care Medicine. Dr. Lau opined that, based on his review of the Bill of Particulars, the deposition testimony of all parties, and the medical records, the defendants met the standard of care in all respects and, in any event, that any departure was not the proximate cause of the decedent’s injuries. Specifically, Dr. Lau indicated that the administration of heparin and use of a pneumatic sequential compression device, which was employed post operatively were appropriate and consistent with the accepted standards of care for treatment following open heart surgery. See Noble v. Kingsbrook Jewish Med. Ctr., 168 A.D.3d 1077, 1079, 92 N.Y.S.3d 373, 376 (2d Dept. 2019). Dr. Catanese was of the opinion that the pathology slides from the autopsy revealed that the clot formed in either the pelvic or deep venous system in the legs. But since the clot did not have any reaction with the pulmonary artery then the clot “only arrive in the pulmonary artery second or at most minutes prior to Ms. Sorbera’s sudden decompensation.” Dr. Silberman found that the critical care response to the decedent’s sudden decline met the standard of care, and there was not time for imagining. Moreover, fibrinolytics, drugs used to disintegrate clots, was contraindicated because that would have adversely affected the decedent’s healing from open heart surgery. In opposition, plaintiff raised a triable issue of fact as to whether a doppler ultrasound should have been performed on June 21st and June 22nd and whether the administration of heparin should have been increased. Plaintiff’s expert, Dr. Gino Bottino (“Dr. Bottino”), a board-certified physician in internal medicine, hematology, and oncology opined that, “[defendants] departed from good and accepted medical practice by failing to order a doppler ultrasound of Ms. Sorbera’s lower extremities…” Dr. Bottino reasoned that, “if a post operative patient presents with lower extremity swelling the standard of care is to rule out a DVT by performing a doppler ultrasound study of the lower extremity…This is even more true when the swelling is accompanied by pain.” Dr. Bottino relied upon the decedent’s medical records as well as the deposition testimony of the plaintiff, wherein he testified that the decedent complained of leg discomfort, which was communicated to the doctors and nurses at the hospital. See Mora v. 1-10 Bush Terminal Owner, L.P., 214 A.D.3d 785, 787, 186 N.Y.S.3d 51, 54 (2d Dept. 2023) (hearsay evidence can be considered in opposition to a summary judgment motion); Cronin v. Jamaica Hosp. Med. Ctr., 60 A.D.3d 803, 875 N.Y.S.2d 222 (2d Dept. 2009); Johnson v. Pollack, 261 A.D.2d 585, 690 N.Y.S.2d 691 (2d Dept. 1999)( “…the Supreme Court properly determined that issues of fact existed as to whether the decedent complained to the appellant about back pain…”). It is pellucidly clear that, on summary judgment, this Court’s role is issue finding and not issue determination. Silveri v. Glaser, 166 A.D.3d 1044. The decedent’s medical records indicating that she had swelling in her legs coupled with plaintiff’s testimony that the decedent complained of discomfort in her legs, raises an inference that this Court must render in favor of the plaintiff. Id. CONCLUSION Based upon the foregoing, it is ORDERED that the motion for summary judgment as against Daniel G. Swistel, M.D, Robert A. Leber, M.D., Bette Kim, M.D., Neda Sadeghi, M.D., Yang Chun, M.D., Vikram Agarwal, M.D., Irshad Bhatty, M.D., Marcelle Commissiong, R.N., Chris Gasho, R.N., Glenn Gamboa, R.N., Yvonne McKie, R.N., Kavita Ramrattan, R.N., Mairead Mary Casey, R.N., and Mount Sinai St. Luke’s — Mount Sinai Roosevelt is granted as unopposed, and the complaint is dismissed as against those defendants, and the Clerk shall amend the caption accordingly, and it is further ORDERED that motion for summary judgment as against Dr. Edgar Argulian, Dr. Martin Y. Tabaksblat and Nurse Practitioner Peggy A. Trainor-O’Malley is denied, and it is further ORDERED that plaintiff’s counsel is directed to electronically serve a copy of this Decision and Order with notice of entry on the other parties’ respective counsel and to electronically file an affidavit of service thereof with the Kings County Clerk, and it is further ORDERED that the remaining parties are directed to appear virtually for an Alternative Dispute Resolution Conference on September 30, 2024, at 12:00PM. This constitutes the Decision and Order of the Court Researched and drafted with the assistance of Noora Fawzi, a rising 2L at St. John’s University School of Law. Dated: July 16, 2024
