Upon the notice of motion dated November 29, 2010 of defendants Philipp J. Houck, M.D., Jan M. Quaegebeur, M.D. and Columbia Presbyterian Medical Center, and the affirmations and exhibits submitted in support thereof; the notice of cross-motion dated January 6, 2011 of defendant William S. Schechter, M.D. and the affirmations and exhibits submitted in support thereof; plaintiff's affirmation in opposition dated February 24, 2011 and the affidavit submitted therewith; the reply affirmation dated March 9, 2011 of defendants Philipp J. Houck, M.D., Jan M. Quaegebeur, M.D. and Columbia Presbyterian Medical Center; the reply affirmation dated March 10, 2011 of defendant William S. Schechter, M.D.; and due deliberation; the court finds:

This action for medical malpractice arises out of the death of Christopher Dasent ("Christopher") on October 15, 2003 during surgery performed at defendant Columbia Presbyterian Hospital ("Hospital"). Surgery was performed by defendant Jan M. Quaegebeur, M.D. ("Dr. Quaegebeur"). Defendant William S. Schechter, M.D. ("Dr. Schechter") served as the attending anesthesiologist, and defendant Philipp J. Houck, M.D. ("Dr. Houck") served as the resident in anesthesia. Defendants Dr. Quaegebeur, Dr. Houck and Hospital (collectively "Presbyterian") move pursuant to CPLR 3212 for summary judgment on the grounds that they did not deviate from the accepted standards of medical care in treating Christopher and that Dr. Houck was a resident acting solely under Dr. Schechter's supervision. Dr. Schechter cross-moves for summary judgment on the basis that he did not deviate from the accepted standards of medical care in treating Christopher. Plaintiff does not oppose the motions for summary judgment made by Dr. Houck and Dr. Quaegebeur.

Christopher was diagnosed with supravalvular aortic stenosis and supravalvular pulmonary stenosis shortly after his birth in February 2003. After undergoing a cardiac catheterization in August, Christopher was admitted to Hospital in October for surgery to repair his aorta and pulmonary arteries. The medical records indicate that Christopher entered cardiac arrest shortly after being placed under anesthesia. His heart recovered after defendants performed chest compressions and administered cardiac resuscitation drugs. Christopher was then placed on a cardiopulmonary bypass machine. Surgery was performed once his heart had stabilized. After the procedure, defendants were unable to wean Christopher from the cardiopulmonary bypass machine. Several attempts to use extra corporeal membrane oxygenation, or ECMO, also failed. Dr. Quaegebeur's operative report shows that Christopher's heart was "very, very atrophied." The left ventricular function had severely deteriorated and pulmonary edema had developed.

Plaintiff claims in his supplemental verified bill of particulars that defendants, among other allegations, failed to conduct a proper pre-anesthesia evaluation, provide proper anesthetic agents under the circumstances and administer anesthetic agents. Plaintiff also alleges that surgery should not have been performed once Christopher entered cardiac arrest and that defendants failed to provide properly functioning medical equipment, specifically an ECMO machine.

A defendant moving for summary judgment in a medical malpractice action meets his burden by demonstrating his actions did not deviate from accepted medical standards. Bacani v. [*2]Rosenberg, 74 AD3d 500, 501, 903 N.Y.S.2d 30, 32 (1st Dep't 2010); see also Alvarez v. Prospect Hospital, 68 NY2d 320, 501 N.E.2d 572 (1986). Plaintiff in opposition must submit evidentiary facts sufficient to demonstrate a triable issue of fact. Wasserman v. Carella, 307 AD2d 225, 762 N.Y.S.2d 382 (1st Dep't 2003). Plaintiff may avert summary judgment by submitting an affidavit from a medical doctor attesting that the defendant departed from accepted medical practice and that the departure was the proximate cause of the injuries alleged. Roques v. Noble, 73 AD3d 204, 207, 899 N.Y.S.2d 193, 196 (1st Dep't 2010). However, where a defendant fails to make a prima facie showing, the motion must be denied and the sufficiency of plaintiff's opposition is immaterial. Wasserman v. Carella, supra at 226.

Presbyterian relies on the medical affirmation of Marc S. Kanchuger, M.D. ("Dr. Kanchuger"), who is board certified in Anesthesiology. Dr. Kanchuger states that, upon his review of Christopher's medical records, the type of anesthesia management was proper. An initial attempt for intravenous access was unsuccessful, and the drugs Ketamine and Atropine were properly administered. Additional anesthetic agents were also given. Once Christopher entered cardiac arrest, which Dr. Kanchuger opines is related to Christopher's underlying cardiac condition, resuscitative measures were appropriately carried out. Dr. Kanchuger also states the medical records and testimony reveal Dr. Houck was a resident under the instruction of Dr. Schechter. The records do not indicate Dr. Houck departed from those instructions, and Dr. Kanchuger concluded that Dr. Houck's actions did not depart from the accepted standards of care.

Presbyterian also submits the medical affirmation of Vincent A. Parnell, Jr., M.D., who is board certified in Thoracic Surgery and Surgery and practices in the area of Pediatric Cardiothoracic Surgery. Dr. Parnell states that supravalvular aortic stenosis and supravalvular pulmonary stenosis are conditions that can be fatal. As the conditions can only be corrected surgically, both the recommendation for surgery and the surgical procedure were appropriate. The medical records and depositions show that Christopher's parents were informed Christopher's underlying condition placed him at risk for death at the time of surgery, including from the anesthesia risks. Dr. Parnell opines that Christopher's cardiac condition deteriorated during the procedure due to the severity of his underlying disease in conjunction with the anesthesia necessary to perform the procedure. Defendants promptly corrected the cardiac condition sufficiently for the surgery to proceed. Dr. Parnell concluded that surgery became "emergently necessary" given the change in Christopher's status, and Dr. Quaegebeur properly inserted an arterial line to maintain hemodynamic stability during surgery.

The use of a cardiopulmonary bypass machine during this type of surgery was appropriate, and the decision to use ECMO to temporarily assist the heart was also appropriate. Dr. Parnell states that an ECMO machine will shut down as a safety measure for several reasons, including an obstruction in the cannula, insufficient venous flow from the patient, or an obstruction in the venous supply due to other physiologic reasons. The medical records show the ECMO machine was checked during the procedure and found to be fully operational. Dr. Parnell concluded that the ECMO machine failed due to insufficient venous flow from the patient. This conclusion is supported by Dr. Quaegebeur's operative report and testimony that the machine's plastic bladder collapsed because there was not enough venous return from the patient back towards the machine. Dr. Parnell attributed the failure of Christopher's heart to pump on its own after surgery to his underlying cardiac condition. [*3]

In support of his cross-motion, Dr. Schechter submits the affirmation of Ingrid Hollinger, M.D. ("Dr. Hollinger"), who is board certified in Anesthesiology. Dr. Hollinger states that, upon her review of Christopher's medical records, the anesthesia management was within good and accepted anesthesia practice. The anesthetic drugs were administered in appropriate, timely and proper dosages for someone of Christopher's size and weight. In addition, an echocardiogram revealed that the heart showed good functionality after resuscitative efforts were performed, including chest compressions and the use of cardiac resuscitation drugs, and the heart was not damaged by the cardiopulmonary arrest. Finally, the decision to use an ECMO machine to wean Christopher from the cardiopulmonary bypass machine was left to Dr. Quaegebeur, not Dr. Schechter.

Dr. Schechter testified that the resuscitative efforts were performed well based upon arterial blood gas levels and the short time period before Christopher was placed on bypass. An echocardiogram performed intraoperatively indicated that the contractility of the heart was fine. Dr. Schechter also testified that the ventricular hypertrophy was not caused by the period of cardiac arrest. Defendants' submissions demonstrate that they did not deviate from the accepted standards of medical practice and that their actions were not the cause of Christopher's death.

Plaintiff in opposition argues that Dr. Schechter and Hospital departed from accepted standards of medical practice by administering two improper anesthetic agents. Plaintiff argues that these two agents, combined with aortic stenosis, caused a sudden drop in blood pressure and systemic vascular resistance which then led to cardiac arrest and death. Plaintiff does not address any of the other allegations in his bill of particulars.

Plaintiff submits the medical affidavit of Robert Harris, M.D. ("Dr. Harris"), who is board certified in Anesthesiology. Dr. Harris opines that defendants failed to consider Christopher's prior medical history before administering sevoflurane and nitrous oxide. During the August procedure, Christopher was given sevoflurane, a vasodilator. However, Dr. Harris states that Christopher did not have a "normal pharmacodynamic sensitivity" to sevoflurane as he was also given phenylephrine, a vasoconstrictor. In October, defendants administered sevoflurane in an amount fourteen times greater than the amount Christopher received in August. Moreover, sevoflurane used in conjunction with nitrous oxide acted to lower Christopher's systemic vascular resistance, thus leading to his cardiac arrest.

However, Dr. Harris' position is not supported by the medical records or the evidence. See Frye v. Montefiore Med. Ctr., 70 AD3d 15, 888 N.Y.S.2d 479 (1st Dep't 2009); Parnell v. Montefiore Med. Ctr.,63 AD3d 573, 883 N.Y.S.2d 5 (1st Dep't 2009). Dr. Harris offers no objective basis for his conclusion that Christopher could not tolerate a higher dose of sevoflurane during the August catheterization, nor does he state whether a higher dose of sevoflurane is usually necessary to complete that procedure. Moreover, the Anesthesia Record pertaining to the August procedure indicates that nitrous oxide was also used in conjunction with sevoflurane. Dr. Harris does not account for this fact in his affidavit. The Cardiac Catheterization Report reveals that Christopher tolerated the procedure well.

As to the October surgery, the medical records show that defendants used epinephrine or phenylephrine to increase systemic vascular resistance and maintain cardiac output at or near the time nitrous oxide and sevoflurane were used. Notably, Dr. Harris does not object to the use of phenylephrine during the October surgery although he objects to its use during the procedure in [*4]August.

Dr. Harris' opinion is also contradicted by the record. See Fleming v. Pedinol Pharmacal, Inc., 70 AD3d 422, 893 N.Y.S.2d 551 (1st Dep't 2010). The first arterial blood gas was taken prior to the use of cardiopulmonary bypass, and the levels were found to be normal. In addition, the medical records and testimony reveal that Christopher's heart had regained full functionality prior to the procedure commencing.

Accordingly, it is

ORDERED, that the motion of defendants Philipp J. Houck, M.D., Jan M. Quaegebeur, M.D., and Columbia Presbyterian Medical Center for summary judgment is granted; and it is further

ORDERED, that the cross-motion of defendant William S. Schechter, M.D. for summary judgment is granted; and it is further

ORDERED, that the clerk of the court is directed to enter judgment in favor of defendants William S. Schechter, M.D., Philipp J. Houck, M.D., Jan M. Quaegebeur, M.D., and Columbia Presbyterian Medical Center and dismissing plaintiff's complaint and all cross-claims against them.

This constitutes the decision and order of the court.

Dated: March 23, 2011

____________________________

Lucindo Suarez, J.S.C.