Upon the following papers numbered 1 to 57 read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (001) 1-22; (002) 23-34; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 35-50; Replying Affidavits and supporting papers 51-51; 53-56; 57-no affidavit of service ; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that motion (001) by defendant Steven F. West, D.O. (incorrectly sued herein as Steven F. West, M.D.) pursuant to CPLR 3212 for summary judgment dismissing the complaint and any cross claims asserted against him, is denied; and it is further

ORDERED that motion (002) by defendant Raphael P. Davis, M.D. pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted against him is denied.

In this medical malpractice action, Kathleen Meade and James Meade seek damages personally and derivatively for injuries sustained by Kathleen Meade relating to the alleged negligent departures from good and accepted standards of care and treatment during the administration of a cervical epidural injection on July 22, 2008 by defendants J. Marc Yland, D.O. and Marc J. Yland, P.C., and relating to her care and treatment by the defendants thereafter. Following the administration of the cervical epidural injection, the plaintiff became

disoriented and experienced difficulty breathing, and then became unable to move her extremities. An ambulance was called to Dr. Yland's office, where the plaintiff was immediately intubated and taken to defendant Stony Brook University Hospital emergency department, where an MRI of her cervical spine was conducted. It is alleged that defendants Steven West, D.O., a neuroradiologist at Stony Brook University Hospital, and Arthur P. Rosiello, M.D., a member of New York Spine & Brain Surgery, University Faculty Practice Corporation (NYSBS), negligently interpreted the cervical MRI study as showing no abnormalities other than a possible disc herniation and degenerative changes, without evidence of any dramatic spinal cord injury or penetrating injury of [*2]the cervical spine.

Thereafter, Mrs. Meade was admitted into Stony Brook University Hospital where she received care and treatment by, among others, defendant Raphael Davis, M.D., president of and New York Spine & Brain Surgery, University Faculty Practice Corporation, as well as other members of NYSBS. It is alleged that defendant Davis and NYSBS negligently departed from good and accepted standards of care and treatment, and inter alia, failed to timely recognize, diagnose and treat the plaintiff for an epidural hematoma and (spinal) cord compression or contusion. As a result of the defendants' alleged negligence, the plaintiff sustained severe and serious injury, including, but not limited to, acute onset quadriplegia, respiratory failure, tracheotomy, ventilator support, gastric feeding tube, severe shock to her nervous system, severe physical pain, mental anguish, and confinement to hospital, bed, and home. It is further alleged that plaintiff has had to abstain from the duties of her vocation, as well as incur medical and other expenses. In addition to the cause of action asserting medical negligence, the plaintiff also asserts a cause of action for lack of informed consent.

In motion (001), defendant Steven F. West, D.O. seeks summary judgment dismissing the complaint as asserted against him on the bases that he did not incorrectly read and interpret the initial MRI performed on the plaintiff on July 22, 2008 at Stony Brook University Hospital.

In motion (002), Raphael Davis, M.D. seeks summary judgment dismissing the complaint as asserted against him on the bases, inter alia, that according to the information he received from his physician's assistant, Bryan Bobrowsky, in conjunction with the MRI interpretation, no neurosurgical treatment was indicated; that there was no need for him to come to the hospital to personally examine the plaintiff; and it was not his function nor responsibility as a neurosurgical consultant to order or implement an order for the steroid spinal cord injury protocol; and even if there was direct needle impact on the spinal cord, it is not the type of compressive or traumatic injury for which the 1980 spinal cord protocol would be implemented.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [1979] Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b] Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 AD2d [*3]1014, 435 NYS2d 340 [2d Dept 1981]).

In support of motion (001), defendant West submitted, inter alia, an attorney's affirmation; affirmation of Susan Lustrin, M.D. with curriculum vitae annexed; unauthenticated and uncertified copies of medical records on compact discs which are not in admissible form and no admissible paper copies have been provided to his court (Pastoriza v The New York City Housing Authority, 41 Misc 3d 1224 (A) [Sup Ct, New York County 2011] CPLR 3212 and 4518); copies of the summons and complaint, his answer, and plaintiff's verified bill of particulars; signed and certified copies of the transcripts of the examinations before trial of Steven West, M.D. dated December 9, 2011, Kathleen Meade dated October 26, 2010, James Meade dated October 28, 2010, Raphael Davis dated March 30, 2012; the unsigned but certified transcripts of Bryan Bobrowsky dated April 30, 2012, Galena Puschinska, M.D. dated January 15, 2013, and Michael Guido III dated November 27, 2012, without proof of service pursuant to CPLR 3116 but which are considered (Zalot v Zieba, 81 AD3d 935, 917 NYS2d 285 [2d Dept 2011]); and the unsigned and uncertified transcripts of Arthur Rosiello, M.D. dated January 27, 2012 which is not in admissible form and is not accompanied by proof of service pursuant to CPLR 3116 (see CPLR 3212, Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 850 NYS2d 201 [2d Dept 2008] McDonald v Maus, 38 AD3d 727, 832 NYS2d 291 [2d Dept 2007] Pina v Flik Intl. Corp., 25 AD3d 772, 808 NYS2d 752 [2d Dept 2006]), but has been considered.

Defendant West has submitted an affidavit, as well as the affirmation of Dr. Lustrin, in the reply papers received by this court on January 14, 2014, erroneously referred to as an affirmation in further support. Those affidavits submitted in the reply papers by the moving defendant do not resolve the factual issues and were improperly submitted with the reply. The function of a reply is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion (In the Matter of the Application of Veronica Montgomery-Costa v The City of New York, 2009 NY Slip Op 29461, 2009 Misc Lexis 3116 [Sup Ct, New York County 2009]). Nor does it avail defendant to shift to the plaintiff, by way of a reply affidavit, the burden to demonstrate a material issue of fact at a time when the plaintiff has neither the obligation nor opportunity to respond absent express leave of court (Winegrad v City of New York, supra; Azzopardi v American Blower Corportion, 192 AD2d 453, 596 NYS2d 404 [1st Dept 1992]).

In support of motion (002), defendant Davis submitted, inter alia, an attorney's affirmation; the affirmation of David S. Cohen, M.D.; copies of the summons and complaint, his answer, and plaintiff's verified bill of particulars; transcripts of the unsigned but certified transcript of the examination before trial of non-party witness Khyzar Chaudry, M.D. dated January 22, 2013 which is not in admissible form but is considered (see CPLR 3212, Martinez v 123-16 Liberty Ave. Realty Corp., supra; McDonald v Maus, supra; Pina v Flik Intl. Corp., supra); uncertified copy of two-pages of the emergency department medication order sheet which is not in admissible form pursuant to CPLR 3212 and 4518. It is noted that exhibit U, referred to by counsel as the consultation note of P.A. Bobrowsky, has not been included with the moving papers in that exhibit, although referenced. [*4]

Expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011] Marzuillo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000] Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988] O'Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984] Hornbrook v Peak Resorts, Inc., 194 Misc 2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]). The inadmissible compact discs submitted by defendant West, and uncertified records submitted by the moving defendants are not in evidence rendering both applications insufficient as a matter of law. It is determined that even if both motions (001) and (002) were properly supported with admissible medical records, the moving

defendants have failed to establish prima facie entitlement to summary judgment dismissing the complaint as asserted against them.

While the plaintiffs have provided redacted affirmations of their expert physicians in their opposing papers, they have not provided unredacted copies of the affirmation/affidavit to this court as required (Marano v Mercy Hospital, 241 AD2d 48, 670 NYS2d 570 [2d Dept 1998]). A redacted version of an expert affidavit lacks evidentiary value (Marano v Mercy Hospital, 241 AD2d 48, 670 NYS2d 570 [2d Dept 1998]). "A party may successfully oppose a summary judgment motion without disclosing the names of the party's expert witnesses. In opposition to such a motion the party defending against a summary judgment motion may serve the movant with a redacted copy of its expert's affirmation as long as an unredacted original is provided to the court for its in camera inspection" (Marano v Mercy Hospital, supra). This procedure preserves the confidentiality of the name of plaintiff's medical expert while also preserving plaintiffs' obligation in opposing defendant's motion, in that by submitting a redacted affirmation and by offering the original to the court for in camera inspection, plaintiff has opposed the motion by evidence in admissible form (Rubenstein v Columbia Presbyterian Medical Center, 139 Misc 2d 349, 527 NYS2d 680 [NY County 1988]). Copies of the affirmation/affidavit with notary with the experts' names and signatures have not been provided to this court under separate cover. Accordingly, plaintiffs' expert affirmation/affidavit are not in admissible form sufficient to raise a triable issues of fact as to the defendants' alleged malpractice (Rose v Horton Medical Center, 29 AD3d 977, 816 NYS2d 174 [2d Dept 2006]).

However, even considering all the moving papers in both the motions, supporting papers, and opposition, and the affirmations and affidavits submitted by both defendants and plaintiffs, it is determined that defendants have not established prima facie entitlement to summary judgment and plaintiffs have raised triable issues of fact which preclude summary judgment as to motions (001) and (002).

Kathleen Meade testified about her medical history and treatment for the pain in her neck and shoulder for which her treating physician, Dr. Carfora ordered MRI studies which were done in 2007. Prior to July 2008, she had never treated with a neurologist, but she had treated with Dr. Weiss, an orthopedist. In 2005, she went to Dr. Yland for a steroid epidural injection for the pain in her neck. Through 2006, she experienced no problems working due to her neck and right shoulder condition. In 2007, the pain and numbness in the right arm became worse, so she went for a second epidural steroid injection into the C7 area, under anesthesia, and returned to work as the executive assistant in the Building Division for the Planning and Building Commissioner for the Town of Islip. She still [*5]experienced pain, and her concentration at work was affected. She saw Dr. Yland in May or June of 2008, at which time they discussed her having another cervical epidural injection as she had numbness and tingling in her hand, and the pain was increasing. She was commuting back and forth to work and was having pain and trouble turning her neck while driving.

On July 22, 2008, her husband accompanied her for the epidural injection by Dr. Yland. Prior to the injection, she walked into his office. She had no difficulty breathing. She signed papers and her blood pressure was taken by Dr. Yland's assistants. She stated that Dr. Yland did not discuss the risk, benefits or alternatives to the procedure with her prior to the administration of the injection. In the procedure room, she was placed under anesthesia. Her first recollection was Dr. Yland saying, "Kathleen, stop squirming." She did not recall squirming, but recalled saying she couldn't breathe and feeling like she was going to die. She heard Dr. Yland said, "What," then heard him say, "Get me the intubation kit and call 911." That was the last thing she remembered. She stated she did not really remember her stay at Stony Brook Hospital or the names of the doctors who took care of her there. She was told that she had been placed on the ventilator at Stony Brook, and that she had a tracheotomy. She stated that Dr. Yland accompanied her to the hospital, and that he has never

contacted her since then. She was discharged to NYU for three weeks, unable to move her arms, legs or neck and experiencing pain all over. After three weeks, she was transferred to Mount Sinai Spinal Cord Injury Rehabilitation for six weeks, where she was eventually weaned off the ventilator and the feeding tube removed. The catheter remained in. From there, she went to Gurwin Nursing and Rehabilitation for seven weeks. She stated that there was never a time that she did not have pain until after she was at Gurwin. She stated that her prognosis was very dim from the beginning, but the real nightmare began when she was discharged home and tried to live in her own home.

Dr. Khyzar Chaudhry

Khyzar Chaudhry, M.D. testified to the extent that he completed his residency in emergency medicine at Stony Brook Hospital in June 2009, so that in June 2008, he was beginning his PGY-3 residency. He is licensed to practice medicine in New York State. He wrote a note in the emergency department record relating to Mrs. Meade on July 22, 2008, and indicated she was triaged at 11:52 a.m. on July 22, 2008. He learned from Dr. Yland that Lidocaine and triamcinolone were administered in the epidural injection, that she went into respiratory arrest, was intubated, and developed bilateral flaccid paralysis and quadriplegia. Dr. Venezia, the attending physician in the emergency department at the time, who supervised and directed his care and treatment of Mrs. Meade, saw and examined Mrs. Meade. He stated, in reading Dr. Venezia's note written at 12:15 p.m., that she spoke with neurosurgery. At 12:45 p.m., Mrs. Meade went for an MRI study, and the report from the neuroradiologist was generated at 2:38 p.m.. Dr. Chaudhry stated that he later learned that the MRI did not reveal any definitive evidence of cord injury. He wrote a note at 7:15 p.m. concerning her admission to MICU, however, it was felt she was not an optimal candidate for MICU, and was a more appropriate candidate for surgical team management. It was not until 10:30 p.m. that Mrs. Meade was transported to SICU for quadriplegia status, post cervical epidural [*6]anesthesia.

Dr. Chaudhry stated that in his note written at 7:15 p.m. on July 22, 2008, neurology was recontacted and ordered a repeat MRI for the morning of July 23, 2008, and also advised that intravenous steroids may be started. He also wrote that NSG (neurosurgery) was asked to physically come to evaluate Mrs. Meade and refused to, as indicated by his note: "[n]eurosurgery refusing eval of patient, report no neurosurgical intervention per conversation with Dr. Venezia, denied need for steroids, ..." The plaintiff was never admitted to the neurology service. Dr. Chaudhry did not remember if he referred to the Stony Brook handbook with regard to the spinal cord injury protocol during his care and treatment of Kathleen Meade. He recalled the order written at 7:30 p.m. for SoluMedrol 30 mg per kg to be given as a slow I.V. bolus, to begin as early as possible within three hours of injury, and thought Dr. Venezia may have directed him to order the steroids through her conversations with consultants with neurosurgical or the neurological team, or possibly both. He testified that there is no indication in the record that the SoluMedrol, which was ordered to be given immediately at 7:30 p.m., was given in the emergency department, and testified that it was not administered until 11:00 p.m. on July 22, 2008 in SICU.

P.A. Bryan Bobrowsky

Non-party witness Bryan Bobrowsky testified to the extent that he is a physician's assistant, and in 2008, was employed at Stony Brook University Hospital. As a physician's assistant, he could make diagnoses of medical conditions, order tests, consults, radiological studies, and medications. On July 22, 2008, he wrote a neurosurgery consultation note regarding Kathleen Meade, whom he saw in the emergency department at about 7:00 p.m., pursuant to the request of the emergency room physician, Dr. Venezia. Although he saw Mrs.

Meade around 7:00 p.m., he was unaware that neurosurgery was contacted by the emergency department about 12:15 that afternoon of July 22, 2008, and that they recommended not to start steroids, just get a cervical spine MRI. He was not aware of who from neurosurgery was contacted, or that SoluMedrol had been ordered that evening. Bobrowsky stated that he did not know who was being referred to in the note written in the emergency department which stated, "neurosurgery refusing eval of patient, report no NSG intervention, per conversation with Doctor Venezia." He stated that the routine medication sheet indicated that SoluMedrol was administered at 11:00 p.m. on July 22, 2008, to reduce swelling, and that it should be given as soon as possible after the injury. The protocol is for specific dosing in a setting of acute injury with either affixed or progressive neurologic deficit. He stated that quadriplegia would be an example of affixed deficit. He was not specifically aware that the protocol provided for the administration of the SoluMedrol within three to eight hours.

P.A. Bobrowsky reviewed the MRI study on the hospital's PAC, but did not speak with radiology about it. P.A. Bobrowsky stated that he performed a physical examination and then spoke with Dr. Davis by phone for about five minutes on July 22, 2008 that evening. He believed that they [*7]discussed that she could have had a stroke of her spinal cord, about whether she was in cardiac or respiratory arrest, and about loss of oxygen or hypoxia to the spinal cord. They did not discuss whether the stroke was ischemic or not. They discussed the imaging and the treatment plan, which was that there was no role for neurosurgical intervention, such as surgery, based upon the findings. The plan was to have her seen by a neurologist and that steroid medications were to be ordered by the emergency department. P.A. Bobrowsky testified that he imagined that he discussed, and that he was told, that spinal cord injury protocol steroid medications were ordered and that they agreed upon that. He was not sure which hospital service admitted the plaintiff, and thought it might have been the neurologist. He was not aware of the timing for the administration of the steroids. Upon reviewing the hospital record, it was noted that it appeared Dr. Chaudhry, also an emergency room physician, ordered SoluMedrol at 7:30 p.m.

Bobrowsky testified that the neurology consultation from 3:00 p.m. on July 22, 2008, by Dr. Guido, a resident, would have been available to him when he saw the plaintiff. When questioned about a high spinal block secondary to anesthetic, he stated that it means if the anesthetic was injected into the spinal cord, it can cause paralysis. He stated that a diffusion study MRI is employed to look for a stroke within the brain of the spinal cord. He did not recommend or order any additional radiological studies on July 22, 2008. He did not remember any discussion with Dr. Davis about repeating the MRI. His differential diagnoses were stroke of the spinal cord and direct trauma to the spinal cord by way of the epidural injection, which were ruled out by the MRI, so further MRI imaging would be done, presumably the following day. He did not see Mrs. Meade again after 8:00 p.m. that evening.

Dr. Galena Pushchinsk

Non-party witness Dr. Galena Pushchinsk, M.D. testified to the extent that in July 2008, she was 22 days into her first year of neurology training. She saw Mrs. Meade in the emergency room. She could not remember her exact conversation with Dr. Guido about having intravenous SoluMedrol administered to Mrs. Meade on July 22, 2008, but from the record she read, that was their final recommendation, which had to be approved by the attending. On her initial consult, she was not aware of the spinal cord protocol, but most likely learned about it from Dr. Guido. A diffusion MRI was recommended for the following morning for possible evidence of ischemia, as a stroke can take time to show up on the imaging.

Dr. Michael Guido

Non-party witness Michael Guido, III, M.D. testified to the extent he was board certified in psychiatry and neurology with subcertification in neurophysiology and vascular neurology, and was previously board certified in internal medicine which lapsed in 2011. After he finished his fellowship in 2003, his first hospital affiliation was with Stony Brook University Hospital, where he was an assistant professor of clinical neurology and is now an associate clinical professor of [*8]neurology. In 2008, he was paid by the State of New York and by the clinical practice management plan via the department of neurology for his duties as a neurologist as an employee. As a neurologist, his area of expertise or special interest is general neurology and strokes. He defined a stroke as a loss of brain tissue in response to a lack of blood flow, and may also include hemorrhages. From 2003 through July 2008, he treated one patient who was a quadriplegic, Kathleen Meade. Dr. Guido stated that he never administered an epidural steroid injection, or assisted in providing one, and was not aware of the different types of epidural steroid injections.

Dr. Guido testified that he learned that Mrs. Meade had undergone an epidural steroid injection by Dr. Yland, and that the symptoms of quadriplegia began in Dr. Yland's office. He finished writing his note at 4:30 p.m., July 22, 2008, approximately one hour after he saw her in the emergency room at Stony Brook Hospital, on neurology consult while covering for neurologist Dr. Coyle. He stated the resident's note indicated that Mrs. Meade received the epidural injection at 11:31. He did not remember inquiring about what level the injection was made into the cervical spine. He believed he spoke with Dr. Yland on July 22, 2008.

Dr. Guido testified that part of his differential diagnoses was that of spinal stroke, which he stated is the same as spinal cord infarct or spinal cord stroke. As an attending neurologist, he does not interpret MRI films and relies on neuroradiology. Although his differential diagnosis included spinal cord infarct or stroke, he thought it was less likely because, usually, with a spinal cord infarct, the patient is paralyzed, but they can still feel a tuning fork even if they can feel nothing else, and she did could not feel the tuning fork vibration. He ordered a repeat MRI for July 23, 2008 and recommended specifically defusion weighted images, which are used mainly to diagnose cerebral strokes, but he did not know if it were possible to do that in the spinal cord, but he could give it a try. A regular MRI can see a spinal cord stroke, but it can take up to a day or even longer to be certain, as nothing shows in the initial stages as it takes time for the cells to die and pathological changes to occur. It would then just show mostly swelling, indistinguishable from inflammation, and eventually settle into the appearance of chronic cord loss. The MRI of July 23, 2008, however, did not mention that it was a defusion weighted MRI. The July 28, 2008 MRI report did indicate that it was a defusion study.

Dr. Guido stated that his other differential diagnoses were those of spinal trauma because the symptoms of respiratory arrest and quadriplegia began contemporaneously with the procedure in the general vicinity of the cervical spine, and of spinal block. He stated that the MRI did not show the findings expected of a direct spinal injury. By spinal block, he meant spinal anesthesia from the epidural injection and the medication used by Dr. Yland as Lidocaine could have been injected into the thecal sac (the covering of the spinal cord and the spinal nerves before they exit to go into the body) which runs from the brain throughout the entire central nervous system to the conus medullaris (the bottom of the spinal cord at the level of the belly button) at L1, 2. Dr. Guido testified that if the symptoms were due to spinal block, he would have expected them to improve or resolve within a matter of days when the anesthetic wears off. Dr. Guido continued that a spinal stroke is a vascular event, and he was directed not to answer what the possible causes are. When he spoke with Dr. Yland, the possibility was discussed that the injection had entered the thecal sac and/or the [*9]subarachnoid space within the thecal sac. They also discussed direct trauma.

Dr. Guido testified that in 2008, Stony Brook Hospital did not perform SSEP (somatosensory evoked potentials) monitoring outside the operating room to determine if there is some kind of abnormality anywhere along the course of the peripheral nerve through the spinal cord up to the brain. From 2003 through 2008, he did order SSEP testing of patients, usually to look for evidence of clinically non-evident lesions, including the spinal cord, and would occasionally interpret the studies. He noted that on July 23, 2008, at 2:00 p.m., SSEP testing, both potentials, was ordered, but he did not know by whom. He stated his name appears on the report. He believed he spoke to a resident about the results of the test. He read the report for the lower extremities when asked by the neurology fellow, Dr. Zilberman. Dr. Guido interpreted the study of the lower extremities, and Dr. Andriola interpreted the study of the upper extremities. With regard to the lower extremities, he indicated that things were intact up to the L1 area, so the problem could have been anywhere between the L1 electrode and the brain. The test indicated no cortical response, but peripheral response was present. Dr. Guido stated that a spinal angiogram would not show spinal cord inflammation and he did not consider ordering the test on July 22, 2008. The MRI study of July 23, 2008, made block less likely and added inflammatory to the differential. This MRI contained new inflammatory findings, which were not shown on the first MRI, but he did not know why. He stated that he did not recall that anyone reported the July 28, 2008 MRI was reported as comparable with cord infarction with no mention of inflammatory changes.

Dr. Guido stated he had not become aware that steroid protocol was administered the evening of July 22, 2008 in the intensive care unit, and as a consultant, he did not order the steroid protocol as he was there only to provide guidance to the primary team. He added that he would have had to write out specifics, which is something he would not have known since he did not normally deal with the dosing and the time as in the trauma handbook. He further stated that it would not have been easy to find someone in the hospital to write the order, and this was out of his scope of practice. Dr. Guido stated that in the five page neuro note of July 22, 2008, written in part by the resident, Dr. Pushchinska, he wrote "would still give the spinal cord injury steroid protocol. May help even though there is no specific indication." He stated that he did not tell the neurology resident not to start or recommend not starting intravenous steroids at any time on July 22, 2008.

Dr. Guido read Dr. Venezia's note of July 22, 2008 at 7:15 which says in part, "neurology recapitulated. Told may start IV steroids, given risks, benefits." After colloquy, he answered that it appears to say that neurology was recontacted, and told they may start IV steroids. He continued that the note was almost certainly referring to conversations with the resident. He also stated that Dr. Coyle was still on call until 6:00 p.m. He did not learn that day that neurosurgery was refusing evaluation of Mrs. Meade. Dr. Guido testified that in 2008, he was aware of the steroid protocol with regard to a patient who had an acute spinal cord injury, but did not believe he ever reviewed the protocol or what it provided. He stated that steroids should be administered quickly, but could not quote a specific number of hours. However, when asked, he stated that three to eight hours sounded reasonable. Dr. Guido stated that as a neurologist, he does not usually treat spinal cord trauma. He did not recommend or call a consult with the orthopedic spine service, as it would not be his place [*10]to do so as a consultant, and there was no evidence there was boney issue involved. Dr. Guido said he would have sent this case back to the consult attending, who was Dr. Coyle, for continued neurology managment.

Steven F. West, D.O.

Dr. West testified to the extent that he is a neuroradiologist employed by Stony Brook Hospital since 2008, and that he became board certified in radiology in 2010. His primary responsibilities encompass reading CTs and MRIs of the brain, spine, neck, and orbits. He never met Kathleen Meade, but read the MRI performed on her on July 22, 2008. He stated that the study was started at 1:00 p.m. After he reviewed the films and prior

to dictating the report, he had a telephone conversation with Donna Venezia, an emergency room physician, but not with Dr. Yland. He stated that Dr. Venezia advised him that Mrs. Meade became symptomatic after the injection. They discussed the findings, and she advised that neurology and neurosurgery were being consulted with. Two days later, he noticed that the plaintiff had a follow up MRI study, so he reviewed it and noted the interval development of what looked like a cord infarct. Afterwards, he spoke with Dr. Peyster, the physician in charge of neuroradiology, and asked his opinion if there was anything present on the MRI of July 22, 2008, and was advised there was no evidence of a cord infarct.

Dr. West discussed the four sagittal images on the July 22, 2008 MRI, including the STIR sequence which is very sensitive for any pathology in the bone marrow, vertebral bodies, and within the cord. He discussed the STIR axial block imaging which is more sensitive of edema in the cord and within the vertebral bodies. Dr. West indicated that on the STIR sagittal sequence series 401, there was some increased signal in between the spinous-the soft tissues posterior to the spinal canal, posterior to the thecal sac, between the spinous processes of C5-6, C6-7, C7-T1, and T1-T2. When asked for his opinion concerning the increased signal, he testified that it depended on the clinical setting. He stated that one of the things to explain it would be a direct result of the injection, either from the medication that was administered, or from edema from the trauma of the needle being inserted into the soft tissues of the neck, or it could be artifactual. He continued that the interpretation of these findings are based primarily under clinical situations. He also noted some straightening of the cervical lordosis which could have indicated some muscle spasm. He also noted that the plaintiff had degenerative disc disease at several levels at C4-C5, and minimal disc bulge with some hypertrophic changes of the posterior end plate, bilaterally, and also a small posterior left disc herniation a little more asymmetrical near the left neuroforamen. Thus, he stated, he raised the possibility of a left posterior lateral disc herniation.

Dr. West continued that at C5-6, there was a minimal disc bulge in the midline with no significant spinal stenosis. At C6-7, there was disc bulge with a broad-based left posterior lateral disc herniation causing mild to moderate left neuroforamen with no significant central spinal stenosis and no nerve root compression. There was a high signal within the disc indicating the disc was well [*11]hydrated within the nucleus pulposus, or possibly discitis usually with osteomyelitis. In the thoracic spine, there was increased signal within the nucleus pulposus at the T3, T4, and T5 levels. He continued to explain his findings, and stated that he saw no evidence of anything pressing the cord. There was abnormal signal in the cord but nothing to suggest hematoma, edema from an infarct, cord contusion, or some other pathological process. Dr. West testified that an infarct could present on the MRI, usually after 24 hours, with an abnormal signal within the cord and some expansion of the cord, however, he did not see expansion within the cord on the July 22, 2008 MRI. He saw no evidence of air or contrast dye, or any collections of fluid in the spinal canal. He could not see any of the periaradicular arteries or anterior spinal artery. Dr. West continued that in July 2008, Stony Brook neurointerventional department may have been doing spinal angiograms. When asked if Stony Brook had the capacity to do an MRA of the spine, he indicated in the negative.

Dr. West stated that Dr. Peyster was the interpreting radiologist for Mrs. Meade's July 23, 2008 MRI, but he did review it himself on July 24, 2008. He stated that this MRI showed increased signal intensity on both the T2 and STIR sequences within the cervical spinal cord, from C2 down to C7-T1, as well as some enlargement of the cord indicating swelling of the cord. Superior to C2 appeared to him to be artifactual. At image ten, series 903, there was increased signal within the cord itself, and down lower about T1, is the normal appearance of the cord. He continued that as you go up from T1, there is increased signal and the cord is starting to increase in size. There was nothing else on the July 23, 2008 MRI that he saw which was relevant

to the plaintiff's condition and inability to move her extremities. With regard to the medulla, he pointed out that it was above the level of C1 and down to the tip of the odontoid process, and although there is an increase in signal in the medulla, he believed it is artifactual because it was separate from the rest of the cord infarction which was seen on the July 23, 2008 MRI study. Dr. West stated that it is his opinion that the cause of Mrs. Meade's paralysis is that she developed a cord infarct as evidenced on the July 23, 2008 MRI study, but he did not know the cause of the infarct.

Dr. West testified that a diffusion study is a sequence in MRIs, most commonly used in the brain to aid in the diagnosis of a number of conditions, including cerebral infarction. He continued that it is not used very frequently on the spine because a lot of neuroradiologists do not completely trust the diffusion imaging in the spine as it tends to have the potential for false positives or false negatives, leading the physician down the wrong path. A diffusion study was not utilized on the cervical MRI studies of July 22, or July 23, 2008.

Raphael Davis, M.D.

Raphael Davis, M.D. testified to the effect that since December 2004, he has been a professor of neurosurgery at Stony Brook Hospital, runs the department, does clinical neurological surgery, and teaches during rounds and intraoperatively. He stated he is board certified in neurological surgery. In 2008, he maintained offices in East Setauket and Riverhead. His group was called New [*12]York Spine and Brain Surgery, P.C., of which he has been president for ten years. The group provided emergency neurosurgery coverage 24 hours a day, seven days a week. In 2008, NYSBS employed physician extenders, also known as nurse practitioners and physician's assistants. Traditionally, the hospital employed the nurse practitioners. NYSBS employed the physician's assistants, including PA Bobrowsky.

Dr. Davis testified that on July 22, 2008, he spoke with PA Bobrowsky on the telephone concerning Kathleen Meade, but he had no recollection of any of the conversation. He did not have any recollection of the patient either. He did not know if, in 2008, Stony Brook Hospital had any written policies and procedures in a trauma handbook. When presented with a copy of the trauma handbook, he stated that he could not say he was aware of the book in 2008. He was shown page 53 where it stated "[b]egin steroid protocol (see quadriplegia and paraplegia) if neuro deficit is found." He stated that there was no neurosurgery spinal cord injury steroid protocol in 2008 specifically for the department, or any steroid spinal cord injury protocol. When shown P.A. Bobrowsky's consultation, which stated, "[a]gree with steroids STIR spinal cord injury protocol, D/W Dr. Davis," Dr. Davis stated that in general, patients that have traumatic spinal cord injuries with neurologic deficits can have a protocol related to the use of high-dose steroids in an effort to protect them and potentially improve their outcome from spinal cord dysfunction. However, departmentally, there was nothing in writing, or anywhere, other than the trauma handbook. Dr. Davis stated that high-dose steroids would include intravenous Solu-Medrol methylprednisolone. He stated, that based upon some studies, for certain patients with traumatic spinal cord injury, high-dose steroids were of some benefit. Administration of the high-dose intravenous steroids, stated Dr. Davis, was a guideline for traumatic spinal cord injury, but he could not answer if it was the standard of care. The high-dose steroid protocol involved administration of intravenous Solu-Medrol for traumatic spinal cord injuries usually within three, and under certain circumstance, up to eight hours. He described steroids as a very potent anti-inflammatory, and membrane stabilizing agent, and the presumption is that they prevent cell death by membrane stabilization and preventing additional cascade of events which lead to swelling and further deterioration of the neural elements.

Dr. Davis was on call for Tuesday, July 22, 2008 for part of the day from 6:00 p.m. until 6:00 a.m. July 23, 2008. He spoke with P.A. Bobrowsky at 7:00 p.m. on July 22, 2008, and did not go to the hospital, and did not consider going to the hospital to see Kathleen Meade after he spoke with him. He did not recall the conversation that he had with PA Bobrowsky at that time. P.A. Bobrowsky's note indicated that the plaintiff was a 53 year old white female who underwent cervical epidural injection and developed shortness of breath and respiratory arrest followed by quadriplegia immediately post-procedure in office. Dr. Davis testified that that did not indicate a traumatic spinal cord injury. He stated that he did not recall a discussion with PA Bobrowsky concerning commencement of administration of a steroidal spinal cord protocol on July 22, 2008 when he spoke with him. Dr. Davis stated that he would not have told P.A. Bobrowsky not to commence steroid spinal cord injury protocol based on the information provided by Bobrowsky and Dr. Davis' review of the July 22, 2008 MRI at home on his computer. He did not recommend to P.A. Bobrowsky that [*13]the MRI be repeated. He testified that he had no opinion concerning whether or not steroid spinal cord injury protocol should be initiated after he spoke with P.A. Bobrowsky, the information from the history and physical, and his review of the MRI film of July 22, 2008. He stated he did not recall seeing when the intravenous steroid was administered, or that he looked at the medication records.

Dr. Davis testified that after he reviewed the MRI scan and spoke with P.A. Bobrowsky, he determined that there was no indication for neurosurgical intervention. Dr. Davis testified that the MRI was unremarkable for pathology causing any compressive issues related to the spinal cord, and that there was no evidence of extrinsic damage to the spinal cord at that juncture. There was no evidence of hematoma, or spinal cord compression. He did not recall if there was a STAT order for Solu-Medrol issued at about 7:30 p.m. He did not see her on her date of admission on July 22, 2008 because she did not require urgent neurosurgical intervention; she was adequately evaluated by a P.A.; she was seen by numerous physicians in the emergency room; she had an ongoing evaluation; there was nothing in her evaluation to that juncture that required any neurosurgical intervention; and seeing her in the hospital was not necessary as there was no indication that there was an orthopedic injury that required attention.

Dr. Davis testified that he could not answer if the trauma could have potentially been from the performance of an epidural steroid injection. He could not say if he ever heard of a patient sustaining a spinal cord injury as a result of an epidural steroid injection. Dr. Davis stated that he looked at the report and study of the initial MRI, and the one done the following day. Dr. Davis believed that Dr. Rosiello saw the patient the next day and signed PA Bobrowski's note. Dr. Davis stated that he did not speak to the neurologist who examined Mrs. Meade. Dr. Davis stated that neurosurgical intervention was not required, or else he would have gone to see the plaintiff in the hospital. When Dr. Davis was read the July 22, 2008, at 12:15 p.m. emergency room physician note by Dr. Venezia, which indicated the case was discussed with neurosurgery who recommended not to start steroid, and to just get a stat cervical spine MRI, Dr. Davis testified that he had not read that note and did not know who the neurosurgeon was. The July 22, 2008, 7:15 p.m. emergency room note which indicated "[n]eurosurgery refusing eval of this patient report no NSG per conversation with Dr. Venezia," Dr. Davis said he did not know what the note was referring to. The note also indicated that "[n]eurology recapitulated and told may start IV steroids given risks/benefits," which Dr. Davis stated he had no memory of. He also testified that it is his opinion that there was no indication for the patient to receive steroids, and therefore, when the steroids were given, was of no consequence because Mrs. Meade had an ischemic infarct, a stroke of the spinal cord, and there is no literature supporting the use of intravenous steroid in high or low doses related to spinal cord or cerebral infarction, which is different from a traumatic spinal cord injury.

Dr. Davis testified that he looked at the report and study of the initial MRI, and the one done the following day. He stated that he did not speak to the neurologist who examined Mrs. Meade. Dr. Davis stated that neurosurgical intervention was not required, or else he would have gone to see the plaintiff in the hospital. Dr. Davis was questioned as he reviewed the compact discs on the [*14]computer of the MRI study of July 22, 2008. He testified that he saw no hematoma, spinal cord impingement, compression, spinal cord puncture, or spinal cord infarction. He stated that if a spinal cord insult occurred at 11:30 a.m., that two hours later when the MRI was being done, was insufficient time to show on the MRI. Dr. Davis stated that if a needle had gone through the dura and entered the spinal cord, it maybe could be seen on the MRI depending on the size of the needle bore, hemorrhage associated with the needle passing through the cord, and depending on the sensitivity of the MRI scan. He continued that the difference between ischemic and infarct is difficult to tell in 36 hours post-event, but there was a change in vasculature of the cord and some increase in the volume of the cord consistent with swelling. Ischemia would be diminished blood flow. Under certain circumstances, hypotension can be a potential cause of spinal cord ischemia. Dr. Davis reviewed the myelogram taken with the MRI which showed an increased signal within the spinal cord involving the cervical medullary junction at the T2 level, which he stated is the lower part of the brainstem which may represent some signal changes. He did not see the July 28, 2008 MRI report. Dr. Davis testified that he did not recall seeing the plaintiff at all during her hospitalization at Stony Brook University Hospital.

Arthur Rosiello, M.D.

Arthur Rosiello, M.D. testified to the extent that he has a lifetime board certification in neurological surgery since 1993. Since 1989 to present, he has been an assistant professor of neurological surgery, and since 2004, an assistant professor of orthopedic surgery, at Stony Brook University Hospital. In 2008, he considered himself to be an expert in CT scan and MRI guided brain and spinal surgery, and performed minimally invasive surgical techniques for brain and spinal conditions. He is a member of the professional corporation, New York Spine and Brain Surgery since 1999. University Faculty Practice Corporation is the billing entity, the overall practice plan through which departments such as neurosurgery via NYSBS are subsidiaries. He was paid from the practice plan for NYSBS and from New York State. The practice maintains outpatient office records, but he did not know if he had any records for Kathleen Meade.

Dr. Rosiello testified that when he was first called on July 22, 2008 about Mrs. Meade, the history was presented to him, including that she had been administered a cervical epidural injection and subsequently developed quadriplegia. He noted that the plaintiff was taken for an MRI withing 20 minutes of arriving at the emergency room. Dr. Rosiello stated that the purpose of the MRI was to make a diagnosis so that appropriate treatment could be recommended. The emergency department entry into the record at 12:15 p.m. indicated that "[d]iscussed with neurosurgery their recommendation not to start steroids just yet." When questioned about that, Dr. Rosiello stated that at that time, he believed the question was whether they should treat with high-dose steroids, but at that point, there was no diagnosis, so his recommendation was "[n]o, you should get an immediate MRI scan." He did not want high-dose steroids given as there was no diagnosis of closed traumatic spinal cord injury. He did not have a clear recollection of the events of that day. He thought that at some point he reviewed the MRI scan, but he did not know where he was, if anyone was with him, or when he reviewed it. He was looking for a penetrating injury to the spinal cord given the history of the cervical epidural, but he saw no evidence, such as an abnormal signal within the cord at the [*15]level of the injury, or some evidence of a blood clot (hematoma). Dr. Rosiello later testified that a spinal cord infarct would manifest itself on an MRI with an abnormal signal and cord swelling. When asked about the July 22, 2008 MRI, he stated that in the STIR sagittal, there were no abnormalities, but in the spinous ligaments or within the soft tissues between the

spinous processes of C5 to T2, he saw abnormal signal. He communicated his interpretation of that MRI the following day on July 23, 2008, in his progress note, but did not communicate it to the emergency room on July 22, 2008. He thought he most likely had a conversation with one of their physician extenders on July 22, 2008.

Dr. Rosiello stated that Bryan Bobrowsky, P.A. was an employee and physician extender of NYSBS. He countersigned P.A. Bobrowski's neurosurgery consultation note written July 22, 2008 at 7:00 p.m. Dr. Rosiello testified that P.A. Bobrowski, started work at 6:00 p.m., and saw Mrs. Meade for that consultation on July 22, 2008 because he himself was not there at that particular time as he was not on call. Dr. Rosiello testified that all questions at this particular time would have been directed to the on-call physician, Dr. Davis, who was the attending on call that night for their group. He stated that he did not see that any physician extender from NYSBS who made the entry into the emergency room record. Dr. Rosiello did not recall going to the hospital on July 22, 2008, and was not in the hospital when the consultation was done at 7:00 p.m. by P.A. Brobrowsky. He did not know which physician from his group, if any, saw the plaintiff on July 22, 2008 in the emergency room or when she was admitted.

The emergency department encounter treatment MDR and progress note written at 7:15 p.m., read into the record by Dr. Rosiello, indicates in part, "...neurosurgery refusing eval of patient, report no NSG intervention per conversation with Dr. Venezia. .... Neurology consult recommended repeat MRI in a.m.... neurology recontacted, told may start IV steroids..." Dr. Rosiello testified that he believed it was Dr. Guido from neurology who was contacted and ordered steroids to be started. The SoluMedrol was discontinued on July 28, 2008, as recommended by neurology.

Dr. Rosiello testified that it was his opinion that it was not a departure from accepted medical practice for him not to have ordered the administration of steroids when he had contact or conversations with any treating personnel on July 22, 2008, because Mrs. Meade had a condition that was outside his neurosurgical expertise. He continued that she had a rare condition, a spinal cord infarct, a condition which is not treated by neurosurgeons. Dr. Rosiello also opined that intravenous high-dose steroids were not indicated as Mrs. Meade did not have an acute closed traumatic spinal cord injury as of July 22, 2008, and that the administration of high-dose steroids within eight hours of her condition presenting would have made no difference in the outcome because steroids are used in the treatment of ischemic or acute infarction. He opined that it was not a deviation from standard medical practice not to have ordered a spinal angiogram during her admission, as the conditions for which it is used (spinal cord arteriovenous malformation and arteriovenous fistula) were not established until subsequent MRIs were performed on July 23, and July 28, 2008. [*16]

Dr. Rosiello defined a spinal cord injury as a broad term consisting of closed injuries, open injuries, and penetrating spinal cord injuries. He was familiar with the steroid protocol with reference to spinal cord injury in 2008 at Stony Brook University Hospital. He discussed the protocol as well as the recommendations based on the Multi-Center Spinal Cord Injury Study published in the New England Journal of Medicine in the late 80s or early 90s, but he did not consider that to be the standard of care as the recommendations were based on a subset of the study population, but he did not know what subset. When asked the standard of care to treat spinal cord injuries for the administration of steroids in 2008, Dr. Rosiello stated that there was substantial controversy about whether the use of high-dose steroids in spinal cord injury was effective with regard to patient outcome. The study demonstrated improvement in the level of the neurological deficit by only one or two spinal segments. When asked about the section which recommended that treatment with SoluMedrol should begin as soon as possible, Dr. Rosiello testified that the Stony Brook Hospital policy, and that of the neurosurgical department was, in closed spinal cord injuries, to treat with a high-dose steroid protocol within

three hours of injury. There are accommodations up to eight hours from the time of injury where it is not possible to treat the patient within three hours of injury. The protocol, he indicated, provided for the use of high-dose steroids over 24 to 48 hours. Stony Brook has never done any trials with regard to the issue of administration of high-dose steroids and spinal cord injury.

The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852, 678 NYS2d 503[2d Dept 1998], app denied 92 NY2d 818, 685 NYS2d 420). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury (see Derdiarian v Felix Contracting Corp., 51 NY2d 308, 434 NYS2d 166 [1980] Prete v Rafla-Demetrious, 221 AD2d 674, 638 NYS2d 700 [2d Dept 1996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury (see Fiore v Galang, 64 NY2d 999, 489 NYS2d 47 [1985] Lyons v McCauley, 252 AD2d 516, 517, 675 NYS2d 375 [2d Dept 1998], app denied 92 NY2d 814, 681 NYS2d 475; Bloom v City of New York,202 AD2d 465, 465, 609 NYS2d 45 [2d Dept 1994]).

"The affidavit of a defendant physician may be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care" (Toomey v Adirondack Surgical Assoc.,280 AD2d 754, 755, 720 NYS2d 229 [3d Dept 2001][citations omitted] Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853, 487 NYS2d 316 [1985] Machac v Anderson,261 AD2d 811, 812-813, 690 NYS2d 762 [3d Dept 1999]). [*17]

To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendant's acts or omissions were a competent-producing cause of the injuries of the plaintiff (see Lifshitz v Beth Israel Med. Ctr-Kings Highway Div., 7 AD3d 759, 776 NYS2d 907 [2d Dept 2004] Domaradzki v Glen Cove OB/GYN Assocs., 242 AD2d 282, 660 NYS2d 739 [2d Dept 1997]).

MOTION (001)

In motion (001), defendant West has submitted the affidavit of Elizabeth Susan Lustrin, M.D., a physician licensed to practice medicine in New York State and Florida who is board certified in radiology with subspecialty certification in neuroradiology. While she has submitted a copy of her curriculum vitae, she does not affirm the truth and accuracy of its content. It is Dr. Lustrin's opinion within a reasonable degree of medical certainty that Dr. West's interpretation of the MRI of Kathleen Meade's spinal cord, conducted on July 22, 2008, at Stony Brook University Hospital was reasonable and consistent with good and accepted standards of neuroradiology practice.

Dr. Lustrin indicated that on July 22, 2008, at the office of Dr. Marc Yland, Kathleen Meade was administered an injection by Dr. Yland into her cervical spine for the purpose of pain management. Shortly thereafter, Ms. Meade experienced difficulty breathing, went into respiratory arrest, was intubated and then transported by ambulance to Stony Brook University Hospital emergency department. At about 12:15 p.m., the cervical spine MRI was ordered and completed at about 2:00 p.m. Dr. West read and interpreted the images

from the MRI, which interpretation is contained in a report electronically signed by him on July 22, 2008 at 2:38 p.m. Dr. Lustrin stated that it was Dr. West's impression that the film revealed "degenerative changes," and "questionable left posterolateral disc herniation at C4-5." He further noted that there are areas of increased signal intensity on the STIR sequences only within the soft tissues between the spinous processes of C5-C6, C6-7, C7-T1, and T1-T2 which may represent failure of fat suppression on the STIR sequences, or may represent fluid within the soft tissues related to the patient's injection." She continued that Dr. West indicated that "[t]there is no evidence to suggest an epidural hematoma. There is no evidence of cord compression of (sic) cord contusion."

Dr. Lustrin opined that she agreed with Dr. West's impression and that his interpretation was proper and reasonable and was not a departure from good and accepted neuroradiology practice in any way. Based upon her own review, she concluded that the film was essentially normal; that there is artifact in the imaging that obscures some of the fine detail, but no overt signs of a cord infarction are visible in these images. Dr. Lustrin stated that the findings by Dr. West, the areas of increased signal intensity on the STIR sequences, appear to be artifact. It is noted, however, that Dr. Lustrin does not indicate what such findings would indicate if they were not artifact, raising factual issues. [*18]It is noted that she does not correlate this finding with the plaintiff's full clinical presentation, including quadriplegia, and necessity to be maintained on the ventilator. Dr. Rosiello testified that there was no abnormal signal within the spinal cord, while Dr. West reported increased signal intensity as set forth. Dr. Lustrin does not indicate at what level the epidural injection was placed, and the findings of possible fluid within the soft tissues, or the later diagnosed cord infarct, raising further factual issues.

Dr. Lustrin continued that imaging performed the following day, and thereafter, revealed a cord infarct as the cause of Mrs. Meade's breathing difficulties and quadriplegia, and that the infarct was not present in the study presented by Dr. West. Dr. Lustrin further stated that where there is cord infarct, evidence of the infarct is not radiologically detectable until a passage of time, often as long as 24 hours or more. It is noted that Dr. Guido testified that a regular MRI can detect a stroke, but probably not within 6 hours of the event. Dr. Lustrin does not indicate whether Dr. West recommended repeating the MRI before a 24 hour period, or recommended other diagnostic studies which may have been more specific based upon the plaintiff having been administered the cervical epidural injection and her subsequent clinical presentation. Dr. Lustrin failed to set forth the radiological standard of care relating to the foregoing. Thus, it is determined that Dr. Lustrin's affirmation is conclusory, and fails to address the standard of care and does not address the issue of informed consent, precluding summary judgment.

In opposing motion (001) by defendant Dr. West, the plaintiffs' expert affirmation provides that he/she is a physician currently licensed to practice medicine in New York State and is board certified in diagnostic radiology and pediatrics, with a CAQ in neuroradiology. He set forth the materials and records which he reviewed, and opined to a reasonable degree of medical certainty that Dr. West departed from accepted medical practice by failing to order a follow-up diffusion MRI on July 22, 2008, the day that Mrs. Meade was admitted to Stony Brook University Hospital, and this departure was a substantial factor in exacerbating the severity of the injury to her spinal cord and decreased her chances of a better outcome.

Plaintiffs' expert continued that on July 22, 2008 at approximately 11:22 a.m., Mrs. Meade underwent a cervical epidural steroid injection at C7-T1, posteriorly under fluoroscopic guidance, performed by Dr. Marc Yland. Shortly after the procedure was completed, Mrs. Meade experienced shortness of breath and went into respiratory arrest. By the time she reached Stony Brook Hospital emergency department at approximately 11:59

a.m., she had neurological deficits below disc level C4. At 12:15 p.m., Donna Venezia, M.D., the emergency room physician, ordered a stat non-diffusion MRI of the cervical spine without contrast, which was completed at approximately 2:00 p.m. Dr. West testified that he spoke with Dr. Venezia and learned that Mrs. Meade became symptomatic following the epidural injection. Dr. West was aware that she was suffering neurological deficits following the procedure, as evidenced in his report that by history, "[r]espiratory arrest and flaccid paralysis status post epidural in the cervical spine." [*19]

Dr. West relayed his findings that there was no evidence of cord compression, cord contusion, or an epidural hematoma indicated on the MRI. Inasmuch as the non-diffusion MRI demonstrated no evidence of compression, contusion, or hematoma, and therefore, no explanation for her paralysis, the likely cause of Mrs. Meade's paralysis was ischemic/infarction (an insufficient supply of blood/death of tissue) to the spinal cord. The neurological deficits continued, however, a follow-up non-diffusion MRI was not performed until the next day at 11:00 p.m., more than 30 hours later, and revealed an infarction from C2-T1. It is plaintiffs' expert's opinion that after the original MRI study showed no edema or evidence of infarction, and yet Mrs. Meade continued to suffer neurological deficits, that Dr. West should have ordered a follow-up diffusion MRI to rule out the presence of a cord infarct. Under the circumstances, an infarction or stroke of the spinal cord, most commonly due to an ischemic event, was a likely cause of her continuing neurological deficits.

The plaintiffs' expert stated that MRI studies are used to obtain information concerning the integrity and signal changes of the spinal cord, and that traditional, non-diffusion MRIs would not typically detect early signal changes only a few hours after an acute spinal cord injury, including an injury stemming from an ischemic event and infarction. He continued that diffusion MRIs, also known as diffusion weighted MRIs, detect diffusion of water molecules within the soft tissue, and are more sensitive in detecting early signal changes than traditional MRI studies. Any restriction of that diffusion, including restriction resulting from ischemia, would show up on a diffusion MRI firm as abnormally high signal intensity (hyperintensity).

The plaintiffs' expert continued, that in this case, an early diffusion MRI would have demonstrated that Mrs. Meade suffered an acute ischemic event/infarction, which was not detected by the non-diffusion MRI. Therefore, plaintiffs' expert states, Dr. West should have ordered a follow-up diffusion MRI study when the original MRI study demonstrated no compression, contusion, or hematoma, especially in light of Mrs. Meade's continuing neurological deficits, and that it was a failure for Dr. West not to order a follow-up diffusion weighted MRI immediately after the initial MRI upon learning of the ongoing neurological deficits. The plaintiffs' expert stated that this failure deprived Mrs. Meade of an earlier diagnosis, contributing to the severity of her infarction and decreased her chances for a better outcome.

Based upon the foregoing, it is determined that the plaintiffs' expert neuroradiologist has raised factual issues to preclude summary judgment. While Dr. West has submitted his affidavit in the reply, wherein he indicated that he was not the treating physician and his role was not to recommend other studies or treatment for Mrs. Meade. He continued that the diffusion weighted studies of the spine at Stony Brook Hospital were not done as a matter of routine at this time, however, there are factual issues concerning whether or not Mrs. Meade's condition was routine, and whether or not a benefit could have been derived in performing such study. Dr. West further indicted that Dr. Guido recommended the "so-call" steroid protocol at 3:00 p.m., regardless of whether or not diffusion weighted imaging studies were undertaken. However, this raises further factual issues, since the steroid therapy was not instituted until 11:00 p.m. on July 22, 2008, and whether or not reliance upon Dr. West's interpretation of the initial MRI, and not ordering the additional study contributed to the delay in treatment or to Mrs. Meade's injury.

Further factual issues are raised by Dr. West's expert, Dr. Lustrin, in the reply wherein she asserts that the diffusion weighted MRI was not the standard of care at the time. However, she still has not set forth the standard of care under the circumstances concerning a patient with an MRI study which Dr. West indicated no findings in a patient who developed respiratory arrest, required intubation, and presented with flaccid paralysis following a cervical epidural injection. It is also noted that Dr. Guido testified that he ordered a repeat MRI for July 23, 2008 and recommended specifically diffusion weighted images, however, only an MRI was done. Dr. Guido testified that the July 28, 2008 MRI report indicated that it was a diffusion study.

Accordingly, motion (001) by Steven F. West, D.O. for summary dismissal of the complaint as asserted against him is denied.

MOTION (002)

In motion (002), Dr. Raphael Davis has submitted the affirmation of his expert, Douglas S. Cohen, M.D., who affirms that he is licensed to practice medicine in New York State and is board certified in neurological surgery. He set forth his education and training and the materials and records which he reviewed. It is Dr. Cohen's opinion within a reasonable degree of medical certainty, that Dr. Davis read and interpreted the MRI of the cervical spine appropriately and in conformity with good and accepted standards of care. He continued that in conjunction with Mrs. Meade's clinical presentation at the time of Dr. Davis' involvement at or about 7:00 p.m. on July 22, 2008, neurosurgical treatment of any kind was not indicated nor required, and that there was no need for Dr. Davis to personally see her. Dr. Cohen continued that if Dr. Davis would have seen Mrs. Meade, it would not have added to information which would have changed the fact that there was no possible neurosurgical treatment or surgery for her at that point.

Dr. Cohen opined that the MRI did not provide any information based upon which Dr. Davis could have performed any surgical intervention or other invasive neurosurgical treatment which would have benefitted the patient. He continued that P.A. Bobrowsky saw Mrs. Meade at 7:00 p.m., well within the eight hour window for administration of the SoluMedrol spinal cord protocol, and agreed with the protocol. He stated that it was not the responsibility of the neurosurgery team, including Dr. Davis and P.A. Bobrowsky, to order the Solu-Medrol. Dr. Cohen stated that neurosurgery consultation under the circumstances of Mrs. Meade's presentation was to determine whether she was a candidate for neurosurgical treatment.

Dr. Cohen stated that it was not Dr. Davis' responsibility to implement a SoluMedrol order given by a physician of a different specialty. He also stated that the administration of high-dose steroids for patients with traumatic/compressive injuries to the cervical spine finds its roots in controversial studies published in the 1980s. Dr. Cohen stated that these studies were "mere" recommendations and were never established standards of care for traumatic spinal cord injuries. It is noted, however, that Dr. Cohen does not set forth the protocol established by Stony Brook University Hospital contained in the Trauma Handbook, and he has not demonstrated what it [*20]provided for, and whom should provide and implement the provisions. Dr. Cohen opined that Mrs. Meade did not suffer the type of spinal cord injury for which steroids were recommended, which raises factual issues with his opinion that the MRI did not provide any information upon which Dr. Davis could have performed either invasive or nonevasive neurosurgical treatment on July 22, 2008. Dr. Davis testified that the MRI study did not indicate a traumatic spinal cord injury, and that he did not recall a discussion with PA Bobrowsky concerning commencement of administration of a steroidal spinal cord protocol on July 22, 2008 when he spoke with him. Dr. Davis testified that he had no opinion concerning whether or not steroid spinal cord injury protocol should be initiated after he spoke with P.A. Bobrowsky. He stated he obtained the

information from the history and physical, and based upon his review of the MRI film of July 22, 2008. Dr. Davis stated he did not recall seeing when the intravenous steroid was administered, or that he looked at the medication records. He did not recall if there was a STAT order for Solu-Medrol issued at about 7:30 p.m. Based upon the foregoing, there are factual issues concerning the standard of care for the administration of steroids based upon Mrs. Meade's presentation, as the testimonies and the standard of care testified to by the various defendants and non-party witnesses appear to conflict with Dr. Cohen's opinion as to necessity and benefit.

Dr. Cohen stated that Dr. Davis had no responsibility to personally see Mrs. Meade. He testified that Dr. Davis did not see Mrs. Meade on the date of her admission on July 22, 2008 because she did not require urgent neurosurgical intervention; she was adequately evaluated by a P.A.; she was seen by numerous physicians in the emergency room; she had an ongoing evaluation; there was nothing in her evaluation to that juncture that required any neurosurgical intervention; and seeing her in the hospital was not necessary as there was no indication that there was an orthopedic injury that required attention. Dr. Cohen, however, does not set forth the standard of care surrounding Mrs. Meade's presentation and obvious serious condition, and whether the standard of care provided that a consulting physician should personally see the patient.

Dr. Cohen opined that when Dr. Davis became involved in his neurosurgical consultation, no further diagnostic imaging, including a spinal angiogram were demanded by the standard of care and would not have revealed any information or data which would have altered the care and treatment, nor the ultimate outcome. However, Dr. Cohen does not opine as to the standard of care concerning what other diagnostic studies he is making reference to, and he has not indicated the standard of care with regard to such diagnostic studies Dr. Davis had available to consider. Dr. Cohen's final opinion is that Dr. Davis' care and treatment of Mrs. Meade was appropriate and in conformity with good and accepted standards of neurosurgical practice, and that his treatment of Mrs. Meade was not the proximate cause, nor a substantial producing cause, of any injuries she is alleging.

Based upon the foregoing, it is determined that Dr. Cohen's opinions are conclusory and unsupported by the applicable standards of care, and that Dr. Davis has failed to establish prima facie entitlement to summary judgment dismissing the action as asserted against him. Dr. Cohen does not [*21]address the issue of informed consent. The foregoing issues preclude summary judgment.

In opposition to Dr. Davis' application, the plaintiffs have submitted the affidavit of their expert who avers that he is licensed to practice medicine in the State of Michigan and is board certified in neurosurgery. He set forth the materials and records reviewed concerning the care of the plaintiff from July 22, 2008 through July 28, 2008, and based upon review of those materials, opines within a reasonable degree of medical certainty that the care rendered to Kathleen Meade by Raphael Davis, M.D. departed from accepted standards of medical practice and was a proximate cause of her injuries insofar as it exacerbated her injuries and diminished her chance of a cure or for a better outcome. He set forth the history and presentation of the course of events from Mrs. Meade's cervical epidural injection by Dr. Yland, and admission at Stony Brook University Hospital.

Plaintiffs' expert neurosurgeon stated that Mrs. Meade suffered a large infarction (tissue death) in her cervical spine followed by quadriplegia, after undergoing a cervical epidural steroid injection by Dr. Yland, and that she was transferred to Stony Brook Hospital after the procedure. Dr. Davis was the on-call neurosurgeon the evening of her admission. The plaintiff's expert opined that Dr. Davis departed from accepted standards of medical practice in failing to come to the hospital to personally evaluate Mrs. Meade despite the fact that

she was paralyzed and showed no improvement since her admission. Dr. Davis, he stated, departed from the standard of care by relying on an examination performed by a physician's assistant, nothwithstanding that she presented in an emergency situation with a spinal cord injury. Dr. Davis stayed at home. The plaintiffs' expert stated that had he come to the hospital to see the plaintiff, he would have seen that the SoluMedrol first ordered at 3:00 p.m., almost four hours earlier, had yet to be administered. He could have then ordered such medication himself. He failed to ensure that the SoluMedrol was timely administered and further departed from the standard of care.

The plaintiffs' expert stated that although Dr. Davis' expert, Dr. Cohen, disagrees, SBUH's steroid protocol accurately reflected the standard of care at the time of Mrs. Meade's admission in 2008. The plaintiff's expert stated that Dr. Davis disregarded SBUH's steroid protocol in cases where neurological deficits are found. He set forth the protocol provided by SBUH's Trauma Handbook, for injuries related to the spinal cord, which was referable to any injury relating to the spinal cord, demonstrating how the protocol was not complied with. He continued that the administration of high dose steroids would have reduced the damage to the nerve cells in Mrs. Meades' spinal cord and decreased edema, which, left untreated, caused reduced blood flow and ischemia to the spinal cord. Prolonged ischemic of the spinal cord, in turn, caused a large infarction. Had Dr. Davis followed the SBUH protocol and timely ordered the SoluMedrol, and ensured it was delivered, the steroids would have reduced the edema and resulting infarction. The plaintiffs' expert also disagrees with Dr. Davis and Dr. Cohen, in that SBUH's protocol explicitly states that the steroid protocol was to be used "for any injury referable to the spinal cord," not just those injuries resulting form traumatic/compressive injuries. [*22]

The plaintiffs' expert stated that, under the circumstance, the likely cause of the continuing neurological deficits was ischemic/infarction when the non-diffuse MRI showed no evidence of cord compression, cord contusion or hematoma. There was no explanation for Mrs. Meade's paralysis. He opined that it was a departure from the standard of care by Dr. Davis in failing to order a follow-up diffusion MRI study when he started his on-call shift after learning that the earlier non-diffuse MRI showed no evidence of spinal cord compression, cord contusion, or an epidural hematoma, and that Mrs. Meade still continued to suffer neurological deficits. A diffusion MRI would have shown she suffered an acute ischemic event/infarction. The plaintiff's expert continued that diffusion weighted MRIs are highly sensitive in assessing spinal cord infarctions caused by ischemia, as opposed to non-diffuse MRI studies. He stated that non-diffuse MRI studies show contrast between soft tissues, whereas diffusion weighted MRIs detect diffusion of water molecules within the soft tissues. Any restriction of that diffusion, including a restriction resulting from an ischemic event, would show as hyper intense on the diffuse MRI films. Diffusion MRIs can detect ischemic changes in less than 24 hours, much more quickly than non-diffuse MRIs. Had Dr. Davis ordered a follow-up diffusion weighted MRI study, Mrs. Meade's ischemic would have been detected earlier. Early detection and treatment was imperative and would have lessened the severity of her injuries and increased her chances of a better outcome.

The plaintiff's expert stated that the progress noted at 7:15 p.m. by Dr. Chaudhry confirmed Dr. Davis' refusal to evaluate Mrs. Meade. At 7:30 p.m., almost eight hours after Mrs. Meade was admitted to Stony Brook, Dr. Chaudhry wrote the first order for stat SoluMedrol to be administered to Mrs. Meade. Notwithstanding the order, the steroids were not administered until 11:00 p.m. when she was transferred to SICU, well beyond SBUH's steroid protocol. At 9:45 a.m. the following day, Dr. Rosiello ordered a repeat MRI and SSEP testing, however, the MRI was not scheduled, and a second MRI order form was submitted at 3:20 p.m., but the MRI was not completed until 10:51 p.m., revealing a spinal cord infarction from C1 to T2.

The SSEP testing was not done until the following day although ordered for the previous day, and revealed abnormal results. Mrs. Meade, he stated, remains a quadriplegic.

Based upon the foregoing, it is determined that the plaintiffs' expert neurosurgeon has set forth the neurosurgical standards of care, and how Dr. Davis failed to comport with those standards of care. He set forth the disagreements between himself and Dr. Cohen with regard to the standards of care, and raised further factual issues concerning those consequences for failure to comport with the standard of care and steroid protocol, and the effects on the plaintiff who remains a quadriplegic, precluding summary judgment from being granted to Dr. Davis.

Accordingly, motion (002) by defendant Raphael P. Davis, M.D. for summary judgment dismissing the complaint as asserted against him is denied. [*23]

Dated: April 30, 2014__________________________________

J.S.C.

FINAL DISPOSITIONXNON-FINAL DISPOSITION