On July 9, 2001 plaintiff, Moshe Assaf underwent a four-vessel coronary artery bypass graft with defendant Dr. Craig Smith as his cardiothracic surgeon. The surgery took place at New York Presbyterian Hospital.

Immediately, things did not go well for Mr. Assaf, beginning with a chest wall bleed which led to a re-exploration and repair procedure during the early morning hours of July 10, 2001. From July 9 to August 4, 2001 Mr. Assaf was under the care of physicians and employees of the hospital in the critical care unit ("CT-ICU"). On August 4, he was transferred to the 11th floor step down unit, and from there he was transferred to a rehabilitation floor where he remained until August 20, 2001 when he was discharged home.

During the nearly one month's time spent in the CT-ICU, Mr. Assaf experienced a number of serious medical setbacks which allegedly impeded a full and speedy recovery. He attributes many, if not all, of these setbacks to the negligence of the various doctors who staffed the unit and supervised his care. Thus, in this action sounding in medical malpractice, Mr. Assaf has named not only his surgeon Dr. Smith and the hospital, but also the CT-ICU attending physicians; specifically, Drs. Deborah Doreen Brathwaite, Terry Lina Koch, Peter Lloyd Salgo, Robert Neil Sladen, and Staffan B. Wahlander. Mr. Assaf also claims that Dr. Michael H. Wechsler, a consulting urologist during this period, committed malpractice. Finally, he has charged Dr. Dudley Keith Angell, a rehabilitation medicine specialist, with negligent care during the time [*2]spent in rehabilitation.

All the attending physicians and the rehabilitation specialist, represented by one counsel, have filed a joint motion for summary judgment dismissing the action following the conclusion of discovery, and plaintiffs have opposed. The co-defendants, the surgeon Dr. Smith and the hospital, represented by separate counsel, have not taken a position on the motion, nor have they moved on their own behalves. After lengthy submissions and oral argument on the motion, plaintiffs' counsel does not oppose granting judgment in favor of Drs. Brathwaite, Koch and Angell. Therefore, all claims vis-a-vis these doctors are dismissed with prejudice. The dispute regarding the remaining moving defendants is resolved below.

The Competing Expert Affirmations regarding the IV Placement

In support of the motion by Drs. Salgo, Sladen, Wahlander and Wechsler, counsel has submitted four affirmations from various physicians, each one attesting to the accepted standards of care provided by each of the moving doctors. First, there is an affirmation from Dr. Burt M. Greenberg, who is board certified in both Plastic and General Surgery and has received special training in the field of Hand Surgery at Massachusetts General Hospital. These credentials are important because Dr. Greenberg limits his opinions to the injury Mr. Assaf allegedly suffered to his right hand and forearm. In this regard, the plaintiff claims that a peripheral IV (PIV) for the infusion of Vancomycin and Calcium Chloride to treat a gram positive infection reported at 9:10 p.m. on July 18 should not, in the first place, have been used instead of a central line, and further that the PIV was negligently placed. Plaintiff asserts that when a darkened discoloration on his hand near the line was noted during the late evening and early morning hours of July 18 - 19, 2001, when Dr. Wahlander was the attending physician, immediate steps should have been taken to deal with this problem before the right hand became ulcerated and necrotic.

In his affirmation, Dr. Greenberg reviews the records from July 18 through July 27. He first notes that at 8:30 p.m the nursing notes "show the only IV access the patient had then was a left peripheral IV." At 9:10 p.m. when the hospital lab notified Dr. Wahlander of a gram positive blood infection, the doctor ordered Vancomycin which was "administered through the only available line, the PIV in the patient's right hand." (page 3). Calcium Chloride was then administered through this line at 11:00 that night. Dr. Greenberg opines here that if there had been a misplacement of the line, certain clear signs, such as the build-up of fluid on the top of the hand, redness, swelling, and interference with the flow, would have been immediately apparent, but were not. Even at 4:30 a.m. when a nurse noted a darkened discoloration, the IV was noted to have blood return, indicating that the IV was functioning properly.

At 7:56 a.m., because of a newly observed purplish discoloration at the site of the PIV, the IV was stopped. But Dr. Greenberg still believes these early morning signs were not clear signs that the medications had extravasated, or flowed, outside the vein and infiltrated surrounding tissues because other signs pointing to such a problem were not seen. In fact, he asserts that all of the nursing notes reflect that the IV was functioning properly during the night and morning of July 18 -19, 2001.

With regard to the days following the 19th, Dr. Greenberg comments that the nursing notes reflected that Mr. Assaf's skin was checked twice daily and that no [*3]mention appears of any deterioration of the hand on July 20, 21 or 22. It was only at 7:30 a.m. on July 23, when a nurse described an open blister on the back of the patient's right hand, that a problem became evident. After that, Dr. Greenberg opines that treatment for this condition was appropriate, with the use of Bacitracin ointment on the 23rd followed by Silvadene cream. On July 26 when Mr. Assaf's wrist was described as ulcerated and necrotic, Dr. Sladen called in a plastic surgery consult, who continued the Silvadene therapy. All of this treatment was appropriate and proper, according to Dr. Greenberg.

Not surprisingly, the extensive affirmation from the plaintiffs' unnamed expert takes a very different view of the injury to Mr. Assaf's right hand. This expert (apparently a woman) begins her discussion with the comment (¶17, p. 3): "The wound on Mr. Assaf's hand is a classic example of an untreated extravasation of caustic medications such as Vancomycin and/or Calcium Chloride from a peripheral IV line." Earlier, however, this doctor opines that Mr. Assaf's central IV line was discontinued prematurely, making the peripheral IV the only available line, and that it was a departure from good and accepted practice to administer caustic medications such as these through a peripheral IV into the small veins in the dorsal part of the hand, rather than through a central line. The expert holds Dr. Wahlander, as the attending overseeing plaintiff's care on the night of July 18, 2001, responsible for failing to start a central line, which would have avoided any injury.

Plaintiffs' expert then opines that the attending doctors were negligent in not immediately recognizing the extravasation, despite the blood return. The first note of this problem was on July 19 at 4:30 a.m. when the nurse observed a darkened discoloration that she had reported to the doctor. Yet there is no sign that an attending responded by actually examining the site, the expert notes. The intubation was not stopped until 7:56 a.m. by a nurse who also advised the doctor of the problem, but apparently without any intervention by a doctor. The nurse wrote "will continue to monitor." The opposing affirmation from plaintiffs' expert also speaks of the failure to immediately obtain an extravasation kit and use it. These kits contain drugs that speed the removal of the offending infiltrate to minimize damage to the surrounding tissue. Apparently, the unit did not have such a kit.

Regarding the days after July 19 when the IV was stopped, the expert notes that there was no mention for over four days of the condition of the hand and wrist until July 23, when a nurse wrote "right hand blister open." The expert here accuses the ICU attendings of failing to observe and treat this condition which arguably did not suddenly develop into an open blister and which by July 26 became an "ulcerated, necrotic lesion," according to a note by Dr. Sladen.

Therefore, in summary, plaintiff's opposition argues that defendants erred in placing a peripheral IV instead of a central line, the negligent placement caused an extravasation, the problem was not noted until it had worsened, it was not then adequately treated with an extravasation kit, and the condition was not properly monitored and treated for a number of days until it became an ulcerated necrotic lesion extending from plaintiff's right hand to his forearm with the need for surgery and permanent disfigurement. I think enough has been shown here to retain this element of damages against the various attendings, including Dr. Wahlander.

[*4]The Dispute regarding the Chest Bleed

Defendants' second expert affirmation supporting the motion is from Dr. Brian Kaufman. Dr. Kaufman is board certified in Internal Medicine, Anesthesiology and Critical Care Medicine and is co-director of Critical Care Medicine and Director of the Surgical Intensive Care Unit at Tisch Hospital in New York. In a very lengthy affirmation of 17 pages, Dr. Kaufman discusses 6 areas of alleged negligence. His overall opinion, not surprisingly, is that the care rendered to Mr. Assaf between July 9 to August 4, 2001 was rendered within good and accepted standards of care and was appropriately documented. He finds no deviations from accepted standards of care in the treatment by the various attendings that caused or contributed to the plaintiff's injuries.

Dr. Kaufman first opines about the alleged delay in detecting the hemothorax (blood in the chest cavity) after the bypass surgery, a delay which for the most part plaintiffs lay at the doorstep of defendant Dr. Peter Salgo. Dr. Kaufman notes that after 2:50 p.m. when the patient first arrived in the CT-ICU following bypass surgery, his hematocrit, hemoglobin and blood pressure dropped over the first three hours. Kaufman says this condition was properly treated with fluids, medication and blood products. Also, the surgeon Dr. Craig Smith was called soon after 9:00 p.m. and he ordered a chest x-ray and blood transfusion. At 2:00 a.m., Dr. Smith ordered the placement of a right chest tube which extracted 1,850 cc's of blood. Meanwhile, the resident, Dr. Morales was kept apprised of the situation. Finally, Dr. Smith directed that the patient be returned to the operating room where he reexplored the surgical site, found a chest wall bleed, and repaired it.

Defendants' expert opines that this re-exploration is a surgical judgment best left to Dr. Smith. In very general terms he concludes that "the care and treatment provided by Dr. Salgo in the hours after the patient returned from the operating room following the July 9, 2001 bypass surgery was appropriate in all respects".

However, the opposing affirmation by plaintiff's expert takes sharp issue with this opinion. She says that Dr. Salgo deviated from accepted medical practice by failing to properly identify an active arterial bleeding site for almost 6 hours, beginning at 3:00 p.m, despite evidence of falling blood pressure that did not adequately respond to vasopressurs, decreasing hematocrit, and a major thoracic bleed on the chest x-ray. The expert notes here that during the re-exploration surgery, which did not take place until 3:00 a.m., 15 units of blood were removed from Mr. Assaf's chest. The expert then opines in some detail that the entire course of the plaintiff's hospitalization was adversely affected in multiple life-threatening ways by this bleeding. She concludes that "the bleeder' was the catalyst that sentenced Mr. Assaf into a very complicated and dangerous ICU course."

Enough has been presented here, between Kaufman's general opinion that all was handled well and the opposing opinion that clear signs of a significant bleed should have been recognized and dealt with earlier, to allow this claim to go forward against Dr. Salgo.

The Issue of Respiratory Management

The second deviation addressed by Dr. Kaufman, also primarily leveled against Dr. Salgo, was Mr. Assaf's respiratory management, primarily on July 12 and 17, 2001. The allegations here center on the removal, pursuant to Dr. Salgo's orders, of the [*5]patient's endotracheal tube on those two days, both of which were followed by reintubations.

The first extubation took place around noon on July 12. Mr. Assaf was then reintubated at 7:40 p.m. because of shortness of breath due to airway secretions he could not clear. Dr. Kaufman says that the extubation earlier in the day was supported by the patient's vital signs. He "was a good candidate for extubation". He adds that there are many risks, which he enumerates, associated with long-term intubation which support early extubation.

On July 17 at about 5:35 p.m., Dr. Salgo again ordered extubation, and Dr. Kaufman again opines that Mr. Assaf met all the criteria for this action. But on the morning of July 19, plaintiff was reintubated on the orders of Dr. Sladen, because again the patient had developed respiratory distress. The two extubations, according to Dr. Kaufman, were appropriate and caused no injury to the plaintiff.

However, again there is sharp disagreement provided in the opposition. In great detail, plaintiff's opining doctor discusses why on both July 12 and July 17 it was a mistake to attempt extubation. "The patient should be recovering from critical illness or injury and hemodynamically stable before weaning [but] in fact, Mr. Assaf was getting worse," the doctor explains.

On July 12, plaintiff's expert notes, Mr. Assaf was still "critical" and did not meet the criteria for extubation. He had diaphragmatic weakness from phrenic nerve injury and he was also developing pneumonia as documented by the nurses from July 12 through July 17. He was noted to have moderate amounts of thick yellowish secretions and thick green sputum plus fever and an increasing white blood count. This worsening condition argued against extubation on both days, the expert asserts. The plaintiff's doctor also opines that the extubations, which were followed by two necessary reintubations, increased the patient's risk for infection and respiratory compromise and was a substantial factor in causing his pneumonia. Also, according to this doctor, the serial extubations caused Mr. Assaf to have respiratory muscle fatigue, requiring him to fail weaning and further requiring a tracheotomy on July 23, 2001.

I find that here again that enough has been presented to have this claim go forward, but only against Dr. Salgo. While it is true that it was Dr. Sladen who reintubated the patient on July 19, 2001, I see nothing but conclusory statements from the opposition on why this decision and procedure was negligent.

Plaintiff's Genitourinary Management

The next issue discussed by Dr. Kaufman relates to plaintiff's genitourinary management. In this regard, on behalf of the ICU attendings and Dr. Michael Wechsler, the consulting urologist at the hospital, defendants submitted an affirmation from Dr. Elliot Cohen, a board certified Urologist. Dr. Cohen first opines, along with Dr. Kaufman, that there is no evidence to support the allegation that a Foley catheter was improperly placed in Mr. Assaf's urethra rather than in his bladder. In the opinion of Dr. Cohen, Dr. Wechsler responded to the consulting assignment appropriately. He then spends much of his affirmation disputing plaintiff's claim that he suffered from hydronephroses, pointing to a July 20, 2001 sonogram in particular. Nor does Dr. Cohen believe that Mr. Assaf now suffers from an atonic bladder, arguing instead that virtually all of Mr. Assaf's problems in this area are caused by his documented enlarged [*6]prostate.

Dr. Kaufman's analysis of why the ICU care in this area met acceptable standards focuses primarily on the patient's continuing ability to pass urine, despite increasing creatinine and BUN levels. These factors did, however, provide reason for Dr. Sladen to work the patient up for renal failure on July 19. When the urine production stopped late on the 19th, Dr. Sladen had already left for the day, but he promptly called in Dr. Wechsler the following day.

But once more, the opposition takes issue with the opinions of Drs. Cohen and Kaufman. She says that in the first instance, there was a failure by several of the attendings and Dr. Wechsler to vigilantly monitor Mr. Assaf's impending renal failure. She accuses Drs. Salgo, Sladen and Wahlander of having over-prescribed the diuretics Lasix and Bumex to the extent that Mr.s Assaf's creatinine increased dangerously from 1.6 on July 16, 2001 to 4 on July 19, 2001 and to 5 on July 20, 2001. Plaintiffs' expert asserts, contrary to the defendants' deposition testimony, that the creatinine increase from 1.5 to 2.0 is equivalent to the loss of approximately 50% of renal function and suggests acute renal failure.

Also, plaintiffs' expert does believe that the Foley catheter was misplaced, causing urethral obstruction. She points to evidence in the record supporting this opinion and the injuries caused by it, such as severe urinary retention. She also takes issue with the quality of care given by Dr. Wechsler, calling it inadequate: "Once a consult assumes responsibility for a patient, he must see the patient every day." Wechsler testifies that his resident did follow up daily, but the opposition points out that there is only one resident's note on July 20, and Dr. Wechsler did not document any treatment at all between July 17 and July 25, 2001.

With regard to injuries, plaintiffs' expert physician opines that Mr. Assaf suffered a grossly distended bladder which stretched to the extent of developing an atonic bladder. Upon discharge he had to self-catheterize. Finally, this doctor disagrees with Dr. Cohen that all the plaintiff's genitourinary problems are due to his enlarged prostate.

Again I believe in this area, there are sufficient issues relating to Mr. Assaf's renal management to allow the claims to go forward vis-a-vis the attendings and Dr. Wechsler.

Plaintiff's Gastrointestinal Condition

Dr. Kaufman next discusses the gastrointestinal allegations against the defendants.^[FN1] First, in a general way Dr. Kaufman contends that the gastrointestinal care was appropriate in all respects. He opines that Mr. Assaf did not develop an ischemic bowel, but rather was diagnosed on July 19 with a suspected ileus, a well-recognized phenomenon known as Ogilive Syndrome. Once this condition was recognized, Dr. Sladen requested a nutrition and gastroenterology consult. The patient's condition improved and his ileus began to resolve after July 20. He had a bowel movement following an enema on July 21. Finally, his bowel was manually disimpacted on July 31 [*7]and this function continued to improve.

But the plaintiffs' expert disagrees and argues that Mr. Assaf's bowel functions were not properly monitored. She notes that the patient did not have a full bowel movement until July 31, more than three weeks after admission. The injury suffered by the failure to properly monitor and treat caused the patient to suffer pain and discomfort from this long period of impacted bowel.

I find the opposition here is somewhat conclusory as to what alternative treatment should have been provided and it is a close question as to whether the defendants departed from accepted standards of care with respect to the ileus and its management. However, since issue finding, and not issue determination, is the court's function on summary judgment, I will allow this claim to go forward as well.

The Plaintiff's Infections and Haldol

The claims relating to Mr. Assaf's multiple infections and the one-time administration of Haldol cannot proceed. As to the former, defendants submit as part of the moving papers an affirmation from Dr. William Mandell, board certified in Internal Medicine and Infectious Diseases. The plaintiff's claim is that Mr. Assaf was negligently infected with bacteria found in hospitals known as Methicillin-Resistant Staphylococcus Epidermides or MRSE. Dr. Mandell states that it is simply impossible to maintain a completely antiseptic environment in any hospital setting and that the contraction of this infection is almost inevitable in long- term ICU care and does not prove negligence. The organism is an opportunistic pathogen and critically ill patients, such as Mr. Assaf, are particularly susceptible to it. Finally, Vancomycin is the antibiotic of choice.

The opposition does not really challenge the above assertion. It merely reiterates that there was negligence in other areas that resulted in a prolonged stay in ICU, and asserts that the prolonged stay put the patient at greater risk for the infection. I find that plaintiffs have not presented enough to defeat defendants' request for summary judgment dismissing these claims regarding infection.

Likewise, vis-a-vis the administration of Haldol on July 24 "for agitation pin," the plaintiff and his physician urge that this was an inappropriate and illegal use of a chemical restraint. Dr. Kaufman, however, denounces this charge as baseless. He points out that this anti-psychotic medication was not used in place of pain medication and was not used as a chemical restraint. In any event, since no injury as a result of this single administration of Haldol is claimed, the charge fails.

The Dispute regarding Expert Credentials

One final issue should be addressed now, the alleged insufficiency of the plaintiffs' expert affirmation in opposition to defendants' motion. Since virtually no identifying information was provided about this physician in the first instance, I directed plaintiffs in an interim decision dated February 27, 2007 to supplement their opposition. This was done, and it appears that the plaintiffs' expert physician is a recent medical school graduate (from Sackler School of Medicine/New York Program at Tel Aviv University) who received her New York State license to practice medicine in June of 2004. She completed a three year residency in Internal Medicine in June 2006 at Jacobi-Einstein Medical Center. She is board eligible, but not yet board certified, and is planning to take her Board this summer of 2007. Finally, she states that most of her rotations took place in the Intensive Care Unit and Cardiac Care Units where she was [*8]often Unit Chief. For most of her third year of residency, she was Senior Medical Resident overseeing patient care and responsible for the entire Internal Medicine Service.

Defense counsel, in a final supplemental reply, argues that these credentials are still insufficient. Specifically, he asserts that the physician fails to persuade that she is qualified to comment on the standard of care in New York in 2001, noting that in 2001, the doctor was still a medical student in Israel. Counsel also cites cases to support his argument.

However, I disagree. A doctor does not need to be a specialist in a particular field to be considered a medical expert. Humphrey v. Jewish Hospital and Med'l Ctr, 172 AD2d 494 (2nd Dep't 1991). Although a doctor's knowledge and level of experience and expertise is typically something that a jury must evaluate, the opinion in the first instance is admissible. Keane v. Sloan Kettering Institute for Cancer Research, 96 AD2d 505 (2nd Dep't 1983).

The cases cited by the defense are distinguishable. For example, in Romano v. Stanley, 90 NY2d 444 (2005) and Behar v. Coren, 21 AD3d 1045 (2nd Dep't 2005), the courts found that the proffered expert had failed to assert what specialized training he had in the area about which he was giving opinions. In Behar, a medical malpractice case, plaintiff presented an affirmation from a pathologist who unsatisfactorily contested the opinions of surgical and gastroenterological experts regarding treatment given to a child.

Finally, a very recent case on this issue from the First Department is cited, Browder v. New York City Health and Hospitals Corp., 2007 WL 583007. There, the Appellate Division upheld the trial court's decision granting the defendant's motion for summary judgment. Both courts there found the affirmation submitted by the plaintiff, in opposition to one from the defendant's expert pediatric urologist, was insufficient because it did not indicate the affiant's specialty or that he or she possessed the requisite background and knowledge to furnish a reliable opinion. The Court further found the affirmation deficient because it failed to address the detailed affirmation of the defendant's expert, it addressed the alleged departures and causation only in conclusory terms, and facts relied upon were contradicted by the record.

None of that can be said here. While it is true that the plaintiff's physician is somewhat new to the practice of medicine, she has set out her very recent experience in Intensive Care and Cardiac Care Management, the area at issue here. And as discussed in the body of this decision, the proffered affirmation, 13 pages in length, is extremely detailed and particularized, often referring to specific pages in the record and the deposition testimony of the defendant doctors. In fact, in certain instances the plaintiffs' expert affirmation was more detailed and less conclusory than the affirmations offered by the defendants' experts. Plaintiffs' expert certainly displayed an intense familiarity with the hospital record's documentation (or absence of documentation) of the various aspects of the medical care provided, as well as a corresponding conversance with the medical issues.

Accordingly, the motion is granted to the extent provided above, and otherwise denied. The Clerk is directed to sever and dismiss all claims against defendants Deborah Doreen Brathwaite, MD, Terry Lina Koch, MD,, and Dudley Keith Angell, MD, [*9]and to also dismiss the respiratory claim against Dr. Salden and the infection and the Haldol claims against all moving defendants. The remaining claims against the remaining defendants shall continue. Counsel should appear before the Court in Room 222 for the selection of a trial date on Wednesday, May 9 at noon.

Dated: March 16, 2007

___________________________

J.S.C.