Upon the foregoing papers, defendant Shahin Ayman, M.D. (Dr. Shahin) moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff Elpidia Burgos' (plaintiff) complaint against him. In the alternative, Dr. Shahin moves for an order striking the errata sheets for Jesusita Burgos' (plaintiff's mother) deposition testimony, compelling plaintiff to supplement her bill of particulars, and sanctioning plaintiff's counsel, pursuant to 22 NYCRR 130-1.1. Defendant Imad John Bakoss, M.D. (Dr. Bakoss) cross-moves for summary judgment dismissing plaintiff's complaint against him, or, alternatively, for an order striking the errata sheets for Jesusita Burgos' deposition testimony and precluding plaintiff from testifying at the time of trial. Defendants Rami Khairallah Daya, M.D. (Dr. Daya) and Brian Flaherty, M.D. (Dr. Flaherty) cross-move for summary judgment dismissing plaintiff's complaint against them, or, in the alternative, for an order striking Jesusita Bugos' errata sheets and compelling plaintiff to supplement her bill of particulars.

On March 5, 2001, plaintiff went into labor and was admitted to Lutheran Medical Center (the hospital) at approximately 8:35 p.m. with Dr. Shanin as her attending obstetrician. Throughout the day of March 6, 2001, plaintiff experienced mild irregular contractions and complained of lower back pain. On March 7, 2001, at approximately 1:55 a.m., plaintiff (who had a history of kidney stones) complained of pain in the area of her right kidney and a urine analysis, urine culture, and nephrology consult were ordered. At approximately 1:00 p.m. on the same day, Pitocin was administered in order to induce labor. At approximately 2:30 p.m., plaintiff was placed on prophylactic antibiotics (Ampicillin). At approximately 11:45 p.m. on March 7, 2001, it was noted that plaintiff's temperature was 102 degrees Fahrenheit. On March 8, 2001, at approximately 3:17 a.m., Dr. Shanin performed a Cesarean [*2]Section delivery with epidural anesthesia because of "failure of induction and variable decelerations" in the fetal heart rate.^[FN1] Shortly after delivery, plaintiff had a 101.3 degree fever. Antibiotics covering both aerobic and anaerobic bacteria were administered

On March 9, 2001, plaintiff's condition appeared to be progressing normally. However, at approximately 9:00 p.m. on that date, plaintiff began to complain of a headache and experienced shortness of breath, and a chest x-ray was ordered. At approximately 11:00 p.m., plaintiff's oxygen saturation was measured at 46% on room air and she was placed on oxygen by defendant Dr. Colado. A series of "Progress Notes" beginning at 8:00 a.m. on March 10, 2001 state, in part:

"received patient this a.m., orally intubated with 7.0 ET Tube. Ventilator, on oxygen, saturation decreasing. Patient ambued with 100%. Ventilator changed. Patient agitated and restless. Versed 5 mgs IVP given. Versed drip increased 14 cc. ET Tube pulled back 22 centimeters. Tube slipped in to 25 centimeters. Balloon not holding. Anesthesia paged to reintubate patient. Dr. Abraham at bedside. Returned to OR to obtain ET changer. 02 sat. less than 60 despite 100% bagging. ET tube removed. Ambued on 100%. FIO2 sat. decreasing to 42%. Pulse Oximeter with good wave form. Second anesthesiologist at bedside. Sat. Remains 40 to 50%. Patient not fighting at present. Multiple attempts to reintubate with No. 7.5 ET tube inserted with thin watery secretions. Patient placed on ventilator. 100/700/PRUC 21 P5. O2 Sat 67%. Temp 102.8. Continuous sats monitored. Patient's respiratory rate decreased 16 plus, PEEP increased 10. Consent obtained for TLC and arterial line from patient's Mother."

A further Progress Note, dated March 10, 2001 at approximately 10:00 a.m., written by Dr. Colado and cosigned by Dr. Shahin states:

"1. Status Post C-Section Post Operative Day No.2 complicated by respiratory failure secondary to massive bilateral pneumonia. Patient transferred to MICU where she is intubated and treated with IV antibiotics (Zosyn).

2. No current gynecological active problems as for her post C-Section status.

3. Will follow up daily."

Thus, plaintiff was transferred to the hospital's Medical Intensive Care Unit (MICU) for treatment of her pneumonia/lung infection. Although Dr. Shahin "checked in" on plaintiff's care and treatment following her transfer to the MICU, he was no longer an active participant in her care. On March 18, 2001, a CT scan performed on plaintiff revealed that she had suffered a stroke and heart attack. As a result, plaintiff sustained permanent neurological injuries. While in the MICU, plaintiff was attended by several doctors including Dr. Bakoss, defendants Mahmoud Rateb, M.D., Pierre Zalzal, M.D., and John Sayad, M.D. [*3]

By summons and complaint dated August 8, 2003, plaintiff brought the instant medical malpractice action against numerous doctors who treated her during her time at the hospital including Dr. Shahin, Dr. Daya, Dr. Flaherty, and Dr. Bakoss. In an order dated June 21, 2006, Hon. Donald S. Kurtz of this court directed that the defendants appear for depositions on various dates. However, prior to appearing for his scheduled deposition, Dr. Shanin moved for summary judgment. The instant motions are now before the court.

In moving for summary judgment dismissing plaintiff's complaint against him, Dr. Shahin maintains that his prenatal, intrapartum, and postoperative care of plaintiff conformed to applicable standards of care and that nothing he did, or failed to do, proximately caused the injuries sustained by plaintiff some 8 days after she was transferred to the MICU. In support of this argument, Dr. Shahin submits an affirmation by Steven J. Millim, F.A.C.O.G., F.A.C.S, a physician licenced to practice medicine in New York. In particular, Dr. Millim states that "the care and treatment rendered to the plaintiff by Dr. Shahin was in accordance with good and accepted medical practice. Nothing that Dr. Shahin allegedly did, or allegedly failed to do, was a substantial contributing factor or a proximate cause, of any injuries alleged in plaintiff's complaint or bill of particulars." In this regard, Dr. Millim avers that Dr. Shahin's decision to perform a C-section was proper and that the surgery was performed in accordance with applicable standards. Dr. Millim also maintains that Dr. Shahin properly evaluated plaintiff for the source of her fever on March 8. Specifically, Dr. Millim notes that given plaintiff's complaint of pain in her right kidney, and history of kidney stones, Dr. Shahin appropriately ordered a urology consult to determine if plaintiff had kidney stones. Furthermore, Dr. Millim points out that, when plaintiff began to exhibit symptoms of a respiratory infection at the end of March 9th (i.e., shortness of breath), Dr. Shahin's care was in accordance with accepted medical standards inasmuch as a chest x-ray was ordered, plaintiff's blood-oxygen level was monitored, and plaintiff was transferred to the MICU when it was determined that she had a lung infection.

In opposition to Dr. Shahin's motion, plaintiff submits an affirmation by Bruce L. Halbridge, M.D. a physician board certified in Obstetrics and Gynecology. Dr. Halbridge maintains that, based upon his review of plaintiff's medial records both before and after delivery:

"I state with a reasonable degree of medical certainty that Ayman Shanine [sic], M.D., departed from standards of good and accepted medical practice, as such standards existed in 2001, by failing to take proper cognizance of [plaintiff's] fever both before the performance of the cesarean section procedure and afterwards, and by failing to perform a chest x-ray and sputum "Gram Stain" test on March 8, 2001. Additionally, based upon my review of the documents stated above, and based upon my training and experience as an Obstetrician & Gynecologist, I state with a reasonable degree of medical certainty that the staff of Lutheran Medical Center, including Ayman Shanin [sic], M.D., departed from standards of good and [*4]accepted medical practice, as such standards existed in 2001, by failing to timely and properly intubate [plaintiff] and allowing her oxygen saturation level to drop below 85%."

Thus, Dr. Halbridge maintains that Dr. Shahin departed from acceptable standards in two ways: by failing to order a chest x-ray and Gram Stain test when plaintiff developed a fever on March 7, 2001 and by failing to promptly and properly intubate plaintiff when her oxygen saturation level dropped early on the morning of March 10, 2001. In addition, Dr. Halbridge avers that, "with a reasonable degree of medical certainty . . . the departures . . . were an actual and proximal cause of Adult Respiratory Distress Syndrome and subsequent hypoxic/anoxic neurological injury to [plaintiff]."

In reply to plaintiff's opposition papers, Dr. Shahin submits an additional affirmation by Dr. Millim in which he disputes the claims set forth in Dr. Halbridge's affirmation. In particular, Dr. Millim avers that Dr. Halbridge's claim that plaintiff should have been given a chest x-ray and Gram Stain test on March 7, 2001 when her fever first appeared is baseless given the fact that there were no clinical indications of a lung infection at that point. Specifically, Dr. Millim notes that plaintiff did not register any lung complaints, did not complain of shortness of breath, and her respiratory rate was normal until late in the day on March 9th. In addition, Dr. Millim contends that a Gram Stain test may have been skewed since plaintiff had been on antibiotics beginning on March 7th. Dr. Millim also contends Dr. Shahin did not depart from accepted standards in relation to the slippage of plaintiff's tube on the morning of March 10, 2001 since Dr. Shahin was not involved in this "event" and the tube merely moved because of plaintiff's movements.

Finally, Dr. Millim maintains that, even assuming that Dr. Shahin did depart from accepted standards with respect to the failure to order a chest x-ray and to promptly and properly intubate plaintiff, Dr. Halbridge's affirmation completely fails to draw any link between these departures and the underlying injuries which plaintiff suffered over a week after she was transferred from Dr. Shahin care to the MICU. Specifically, Dr. Millim avers that, inasmuch as the source of plaintiff's infection and the bacteria involved were never identified, Dr. Halbridge's claim that performing a chest x-ray on March 7, 2001 would have prevented the injuries sustained by plaintiff on March 18, 2001 is "rank speculation." In addition, Dr. Millim maintains that there is no causal link between any alleged failure to promptly and properly intubate plaintiff on March 9th and 10th and her subsequent neurological injuries since plaintiff was evaluated after this and found to be "alert and oriented."

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of injury or damage (Wiands v Albany Med Ctr., 29 AD3d 982, 983 [2006]; Furey v Kraft, 27 AD3d 416, 417-418 [2006]). Once a defendant makes of prima facie showing of his or her entitlement to summary judgment, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez [*5]v Prospect Hosp., 68 NY2d 320, 324 [1986]). In a medical malpractice action, this means that "a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury" (Domaradzki v Glen Cove Ob/Gyn Assocs., 242 AD2d 282 [1997]). Furthermore, conclusory and unsupported allegations contained in an expert affidavit submitted by a plaintiff do not constitute a basis for denying the summary judgment motion (Micciola v Sacchi, 36 AD3d 869 [2007]; Li v Yang, 36 AD3d 642 [2007]).

Initially, the court notes that Dr. Shahin moved for summary judgment prior to appearing for a deposition that was directed in Justice Kurtz's June 21, 2006 order. This may have required the denial of Dr. Shahin's motion without prejudice to renewal upon the completion of said deposition (see WPP Group USA, Inc. v Interpublic Grp., 228 AD2d 296, 297 [1996]; Campbell v City of New York, 220 AD2d 476, 477 [1995]). However, although plaintiff's opposition papers make note of Dr. Shahin's conduct in this regard,^[FN2] plaintiff does not oppose the motion based upon Dr. Shahin's outstanding deposition or otherwise claim that said deposition is necessary in order for her to oppose Dr. Shahin's summary judgment motion. Instead, plaintiff's opposition is based strictly on the merits. Accordingly, the court will decide the motion on its merits.^[FN3]

Here, Dr. Shahin has made a prima facie showing of his entitlement to summary judgment. In particular, Dr. Millim's affirmations are sufficient to demonstrate that Dr. Shahin did not depart from accepted standards of medical practice during his prenatal, intrapartum, and postoperative care of plaintiff. Dr. Millim's affirmations are also sufficient to demonstrate that nothing Dr. Shahin did, or did not do, was a proximate cause of the injuries sustained by plaintiff on March 18, 2001, some eight days after plaintiff was transferred to the MICU. Accordingly, the burden shifts to plaintiff to submit evidence which raises a triable issue of fact regarding these matters.

Plaintiff has failed to meet this burden. Dr. Halbridge's affirmation alleges that Dr. Shahin treatment of plaintiff deviated from accepted medical standards in two (and only two) ways. First, Dr. Halbridge alleges that Dr. Shahin should have ordered a chest x-ray and Gram Stain test performed on plaintiff when her fever first manifested itself on March 7-8, 2001 in order to rule out the possibility of a lung infection. However, Dr. Halbridge's affirmation fails to account for the fact that plaintiff exhibited no clinical indications of a [*6]lung infection at this time such as shortness of breath or an irregular respiratory rate, but instead complained of pain in the area of her right kidney. Dr. Halbridge fails to provide any medical explanation as to why a chest x-ray or Gram Stain test should have been ordered under these circumstances. Moreover, assuming that Dr. Shahin did deviate from accepted treatment standards by failing to order a chest x-ray and Gram Stain test at this point, Dr. Halbridge's affidavit fails to adequately draw a causal link between this deviation and the injuries sustained by plaintiff over one week later. In this regard, the court notes that plaintiff was placed on antibiotics when her fever first appeared, a chest x-ray was ordered some 24 hours thereafter (when plaintiff began to exhibit symptoms of respiratory distress), plaintiff was treated for her lung infection in the MICU for over a week before suffering a stroke and heart attack, and the bacteria involved in plaintiff's infection were never identified. Thus, Dr. Halbridge's conclusory claim that performing a chest x-ray and Gram Stain test approximately one day earlier would have somehow prevented the injuries ultimately sustained by plaintiff is entirely speculative.

Dr. Halbridge also contends that Dr. Shahin deviated from accepted medical standards in failing to promptly and properly intubate plaintiff when her blood oxygen saturation level was measured at 46% at approximately 11:00 p.m. on March 9, 2001. However, Dr. Shahin was not at the hospital at this point in time, and by the time Dr. Shahin's notes next appear on plaintiff's progress notes, plaintiff had already been intubated. More importantly, Dr. Halbridge fails to cite to anything in plaintiff's medical records that establishes a causal link between the events that occurred between 11:00 p.m. on March 9 and plaintiff's transfer to MICU the following morning, and the neurological injuries sustained by plaintiff over one week later. In this regard, plaintiff was found to be alert and oriented after these events.

Accordingly, Dr. Shanin's motion for summary judgment dismissing plaintiff's action against him is granted.

Dr. Shahin is not entitled to sanctions under the circumstances of this case. Although the court determined that Dr. Shahin is entitled to summary judgment, it cannot be said that plaintiff's claims against him were so completely without merit so as to warrant sanctions (Carella v Reilly and Assoc., 22 AD3d 623, 624 [2005]). Furthermore, plaintiff has not opposed the motions to strike her mother's errata sheets.

Dr. Bakoss cross-moves for summary judgment dismissing plaintiff's complaint against him. In the alternative, Dr. Bakoss seeks for an order striking the errata sheets for [*7]Jesusita Bugos' deposition testimony and precluding plaintiff from testifying at the time of trial due to his failure to submit the subject errata sheets in a timely manner.

Dr. Bakoss has failed to submit any evidence in support of his cross motion for summary judgment. Indeed, it is unclear from the record before the court what role Dr. Bakoss played in plaintiff's treatment. Accordingly, this branch of his cross motion must be denied. With respect to the remainder of Dr. Bakoss' cross motion, plaintiff has indicated that she has no opposition to the striking of the subject errata sheets. Accordingly, the errata sheets for Jesusita Burgos' deposition testimony are hereby stricken.

Dr. Daya and Dr. Flaherty cross-move for summary judgment dismissing plaintiff's complaint against them. In the alternative, these cross movants seek an order striking the errata sheets for Jesusita Burgos and compelling plaintiff to supplement her bill of particulars to delineate the alleged departures from accepted medical practices committed by them.

As is the case with Dr. Bakoss' cross motion, Dr. Daya and Dr. Flaherty have failed to submit any evidence which indicates that they are entitled to summary judgment in this case. Consequently, that branch of their cross motion which seeks this relief is denied. With respect to the errata sheets for Jesusita Burgos, as the court noted above, plaintiff does not oppose the striking of these sheets. Accordingly, that branch of Dr. Daya and Dr. Flaherty's cross motion which seeks an order striking these errata sheets is granted.

Finally, Dr. Daya and Dr. Flaherty seek an order compelling plaintiff to supplement her bill of particulars so as to specifically delineate the alleged departures from accepted standards of medical care allegedly committed by them. In so moving, Dr. Daya and Dr. Flaherty note that the allegations set forth in plaintiff's bill of particulars as against the defendants are virtually identical. Plaintiff has failed to offer any opposition to this branch of Dr. Daya and Dr. Flaherty's cross motion. Accordingly, the court grants this portion of Dr. Daya and Dr. Flaherty's cross motion and plaintiff is hereby directed to provide a supplemental bill of particulars which specifically delineates the alleged departures from accepted standards of medical care allegedly committed by Dr. Daya and Dr. Flaherty.

In summary, the court rules as follows: (1) Dr. Shahin's motion for summary judgment dismissing plaintiff's complaint against him is granted; (2) that branch of Dr. Shahin's motion which seeks sanctions against plaintiff's attorney is denied; (3) that branch of Dr. Bakoss' cross motion which seeks summary judgment dismissing plaintiff's complaint against him is denied; (4) that branch of Dr. Bakoss' cross motion which seeks an order precluding plaintiff from testifying at trial or striking Jesusita Burgos' errata sheet is granted to the extent that said errata sheet is stricken; (5) that branch of Dr. Daya and Dr. Flaherty's cross motion which seeks summary judgment dismissing plaintiff's complaint against them is denied; (6) that branch of Dr. Daya and Dr. Flaherty's cross motion which seeks an order striking Jesusita Burgos' errata sheet is granted; and (7) that branch of Dr. Daya and Dr. [*8]Flaherty's cross motion which seeks an order directing plaintiff to serve a supplemental bill of particulars is granted.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.