Jean Elizabeth
Augustin II, Administrator d.b.n. of the
Estate of Carine Gustave, Deceased, Plaintiff,
against
David Barney, M.D., Raouf Hanna, M.D., Miroslaw
Wojciula-Tomaszewski, M.D.,
Kingsbrook Jewish Medical Center, and Julio Rimarachin, M.D.,
Defendants.
|
Index No. 516481/2019
For Plaintiff:
Gary Alan Zucker of Zucker & Regev, P.C.
186 Joralemon
Street, Suite 1010
Brooklyn, NY 11201
718-624-1211
[email protected]
For Defendants Kingsbrook Jewish Med. Ctr. et al.:
Chelsea Gallay of Kaufman Borgeest & Ryan LLP
875 Third Ave. 5th Fl.
New York, NY 10022
212-994-6513
[email protected]
For Defendant Julio Rimarachin, M.D.:
Rosemary Cinquemani of Kerley
Walsh Matera & Cinquemani, P.C.
2174 Jackson Ave.
Seaford, NY 11783
516-409-6200
[email protected]
Patria Frias-Colón, J.
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers
considered on review of this motion:
NYSCEF Doc #s 88-108; 149-150 by KJMC Defs
NYSCEF Doc #s 109-130; 147 by D
Rimarachin
NYSCEF Doc #s 135-145 by PlaintiffUpon the foregoing cited papers and
after oral argument on March 18, 2025, pursuant to CPLR § 3212(b), the joint motion for
summary judgment filed by emergency attending Defendants David Barney, M.D., Raouf Hanna,
M.D., Miroslaw Wojciula-Tomaszewski, M.D., and their employer Kingsbrook Jewish Medical
Center (collectively "the KJMC Defendants") (Motion Sequence # 4) is DENIED.
The motion for summary judgment filed by obstetrician/gynecologist Defendant Julio A.
Rimarachin, M.D. (Motion Sequence # 5) is GRANTED in part, to the extent that Plaintiff's
medical malpractice claims arising from treatment rendered by this Defendant prior to July 21,
2018 are dismissed,[FN1]
and otherwise DENIED.
BACKGROUND [FN2]
As administrator of the estate of deceased mother Carine Gustave, Plaintiff commenced this
action sounding in medical malpractice and wrongful death against the KJMC Defendants and
Dr. Rimarachin.[FN3]
The claims arise out of medical care rendered in 2018 between July 20th and the 23rd, when the
decedent, a 39-year-old multigravida in her first trimester with a significant history of large
uterine leiomyomas,[FN4]
persistent bleeding, and anemia, presented with conditions that placed her at high risk for venous
thromboembolism (VTE) and pulmonary embolism (PE). As Ms. Gustave's fetus grew, her
already large uterine leiomyomas were [*2]compressing
surrounding structures,[FN5]
including the pelvic venous system, which led to stasis (congestion and slowing of circulation in
veins due to obstruction)[FN6]
and in turn, to VTE/PE.[FN7]
Plaintiff contends that both the KJMC Defendants and Dr. Rimarachin failed to properly
evaluate and diagnose the decedent's developing VTE/PE despite signs and symptoms including:
an abnormal ECG showing sinus tachycardia with McGinn-White sign;[FN8]
persistent shortness of breath;[FN9]
ongoing lower abdominal pain attributable to uterine compression;[FN10]
and continued uterine bleeding [FN11]
with worsening anemia.[FN12]
The decedent was discharged from KJMC on July 21, 2018 with a diagnosis of threatened
abortion,[FN13]
and was seen later the same day by Dr. Rimarachin (unaffiliated with KJMC),[FN14]
who concurred with that diagnosis and began arranging a termination of pregnancy.
According to the patient's family, Dr. Rimarachin advised the patient to take the
over-the-counter Tylenol for pain in the meantime.[FN15]
According to the patient, Dr. Rimarachin was to telephone the patient on Monday, July 23rd,
with the hospital arrangements.[FN16]
Dr. Rimarachin testified that the "patient never complained of shortness of breath [to
him],"[FN17]
although he conceded that gravidas (pregnant women) "are more likely to have problems of that
nature [i.e., an increased risk of having a PE]."[FN18]
On July 23, 2018, the decedent exchanged text messages with Dr. Rimarachin concerning
scheduling of the procedure.[FN19]
Within hours, she collapsed at home,[FN20]
was transported to Brookdale Hospital.[FN21]
Attempts at the patient's resuscitation at Brookdale failed, and she was pronounced dead at 5:48
p.m. on July 24, 2018.[FN22]
The autopsy attributed her death to pulmonary thromboembolism due to pelvic vein thrombosis
caused by compression from uterine leiomyomas during pregnancy.
The patient initiated the below text exchange with Dr. Rimarachin:
[Patient:] Good afternoon. This is your patient Carine Gustave[,] date of birth
[xx/xx/xx]. I was at your clinic on Saturday [July 21st] with the discharge paper from the
[KJMC] ER, [with the] diagnosis of [a] threatened abortion. I was expecting you [to] call today
and I did not hear from you. I am not having any extra bleeding, but I wanted to make
sure you did not forget about my situation.
[Dr. Rimarachin:] Of
course I didn't. I am making arrangements to get your [curettage] done in the hospital. We called
the insurance today. Since you are doing okay[,[FN23] ] it's giving [us] time to go that
route.
[Patient:] Ok. Hopefully I get it done by this week.
Thanks.
[Dr. Rimarachin:] That's the idea. Anything you need[,]
please call or text.
[Patient:] Thanks."[FN24]
According to Dr. Rimarachin, the patient "was supposed to come to [his] office in two or
three days to finalize the arrangement for the [curettage]."[FN25]
By Dr. Rimarachin's calculation, he was to perform the curettage on Wednesday, July
25th.[FN26]
After having been informed by Emmanuel of the patient's re-hospitalization, Dr. [*3]Rimarachin made a short visit to Brookdale to "show [his] support
and sympathy for whatever [the patient and her family] were going through."[FN27]
During his brief visit to Brookdale, Dr. Rimarachin spoke only to Emmanuel, nor did he identify
himself to any of the Brookdale staff.[FN28]
The Office of Chief Medical Examiner (OCME) performed the autopsy.[FN29]
The official cause of the patient's death was "pulmonary thromboembolism due to pelvic vein
thrombosis, due to vascular compression by uterine leiomyomas and intrauterine pregnancy (14
weeks gestation)."[FN30]
The official final diagnoses at the autopsy were an "enlarged uterus due to uterine leiomyomas
and intrauterine pregnancy (14 weeks gestation), complicated by...compression of pelvic veins
[with] thrombosis of the left internal iliac vein [resulting in the] bilateral pulmonary
thromboembolism."[FN31]
As relevant herein, OCME's autopsy report found that:
"Cardiovascular System:...The pulmonary arteries are partially occluded by
fragmented dark-red and tan firm thrombo-emboli extending to the small arterial vessels in the
lung parenchyma. The left common iliac vein and branches are compressed by the enlarged
uterus. There is a red-tan thrombus in the wall of the left internal iliac vein attached to the
endothelial wall. There [is] no evidence of hemorrhage or inflammation surrounding the
vessels. The veins of the lower extremities are unremarkable with no
thrombosis.
"Genitourinary System:...The uterus is markedly
enlarged and weights 2670 g[rams] [or 5.9 pounds]. There are numerous intramural and
subserosal leiomyomas measuring up to 9 cm [or 3.5 inches] in diameter. There is an
intrauterine male fetus measuring 11.5 cm, 39.84 g in the intact amniotic sac."[FN32]
To the KJMC Defendants, the autopsy report presented both favorable and unfavorable
findings. Dr. Barney testified that a clot in the iliac vein would typically manifest with "swollen
legs, edema, possible pain to the groin, [and] the legs."[FN33]
Yet, the autopsy expressly noted that the decedent's "veins of the lower extremities are
unremarkable with no thrombosis,"[FN34]
directly undermining his opinion. Although Dr. Barney professed uncertainty as to whether
leiomyomas [*4]could "compress pelvic vasculature,"[FN35]
deferring that issue to a surgical resident,[FN36]
he acknowledged that decedent's lower abdominal pain was consistent with "a blood clot or a
thrombus in the pelvic vein system,"[FN37]
which the autopsy confirmed was a contributing cause of death. Nevertheless, Dr. Barney
attempted to distance himself from the immediate cause of death, offering the unsupported view
that a 39-year-old gravida with leiomyomas and lower abdominal pain was "not how a
pulmonary embolism, or PE would present."[FN38]
In so doing, however, Dr. Barney disregarded objective evidence, including the abnormal ECG
showing tachycardia with the McGinn-White sign suggestive of PE, as well as the decedent's
persistent complaints of shortness of breath during her ER stay.[FN39]
By contrast, Dr. Hanna categorically denied that leiomyomas could exert pressure on uterine
or pelvic vasculature.[FN40]
He further testified that he excluded thrombosis from his differential diagnosis because the
patient "denie[d] chest pain , , , shortness of breath , , , leg pain , , , calf pain , , , hypoxia, [and]
denie[d] any complaints."[FN41]
On that basis, Dr. Hanna concluded that during his night shift, the decedent could not have been
suffering from PE or pelvic thrombosis, repeating that she had "no chest pain, no shortness of
breath, no leg pain, no calf pain, [and] no hypoxia."[FN42]
Similarly, his day-shift successor, Dr. Wojciula-Tomaszewski, attributed his lack of hospital
documentation of symptoms, such as shortness of breath, to their alleged absence. As he
explained, "[i]f there were anything wrong, I would have documented and addressed
it".[FN43]
He [*5]testified that the patient had "no complaints" and appeared
"comfortable on the stretcher" during his bedside examination, concluding there was "no
indication" to consider any pulmonary process.[FN44]
In Dr. Wojciula-Tomaszewski's opinion, "[t]here was no indication" to consider any pulmonary
process.[FN45]
After discovery was completed and the note of issue was filed,[FN46]
the KJMC Defendants jointly, and Dr. Rimarachin separately, moved for summary judgment
dismissing the claims against them. The Court heard oral argument on March 18, 2025 and
reserved decision.
STANDARD OF REVIEW
Summary judgment is a "drastic remedy" that should be granted only where no triable issue
of material fact exists. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404
(1957) (internal quotation marks omitted), rearg denied 3 NY2d 941 (1957). The
evidence must be viewed in the light most favorable to the nonmovant, with all reasonable
inferences drawn in that party's favor. De Lourdes Torres v. Jones, 26 NY3d 742, 763 (2016). Where
expert affidavits conflict in a malpractice action, issues of credibility are for the jury. Feinberg v. Feit, 23 AD3d 517,
519 (2d Dept. 2005) (internal citation omitted).
The application of the foregoing principles requires the following:
1. The record must be viewed in the light most favorable to Plaintiff as the
non-movant.
2. The deposition testimony of Drs. Barney, Hanna,
Wojciula-Tomaszewski, and Rimarachin—denying that decedent complained of persistent
shortness of breath, lower abdominal pain, or uterine bleeding—should not be accorded
probative weight at this stage of the litigation to the extent that: (a) such testimony conflicts with
that of the decedent's daughter (the Plaintiff herein) and/or the decedent's live-in boyfriend
(Emmanuel); and (b) such testimony is unsupported by contemporaneous entries in KJMC's
medical records or Dr. Rimarachin's office records,[FN47] and is therefore barred by CPLR § 4519
(the Dead Man's Statute), as further detailed in the margin.[FN48]
3. Where the parties' respective experts' disagreements presented a credibility
battle, the issues of credibility are properly left to a jury for
resolution.
DISCUSSION
A. The KJMC Defendants
The KJMC Defendants failed to establish, prima facie, that their treatment comported
with good and accepted standards of emergency care or that any departures were not a proximate
cause of the patient's death. Their expert, Dr. Robert H. Meyer,[FN49]
either did not address or summarily rejected critical indicia of PE, including the abnormal
ECG,[FN50]
shortness of breath,[FN51]
[*6]lower abdominal pain,[FN52]
and persistent uterine bleeding with anemia.[FN53]
Such omissions render his affirmation conclusory and non-probative. Sanchez v. Ashraf, 238 AD3d 793,
794 (2d Dept. 2025); see also In v.
Maimonides Med. Ctr., 240 AD3d 764, 765 (2d Dept. 2025) (defense expert's opinion
regarding proximate cause was conclusory and insufficient to meet the defendants' burden as the
parties moving for summary judgment); Couch v. County of Suffolk, 296 AD2d 194, 198
(2d Dept. 2002) ("The proffered medical expert merely recounted the plaintiff's complaints to
[defendant hospital] and the treatment rendered, and opined in a conclusory manner that such
treatment did not depart from good and accepted medical practice.").
The autopsy findings further supported plaintiff's experts' conclusion that decedent's death
was caused by VTE/PE arising from uterine compression. See Mehtvin v. Ravi, 180
AD3d 661, 663 (2d Dept. 2020).[FN54]
Plaintiff's experts in emergency medicine and pulmonology—each [*7]qualified by training and experience—opined that the KJMC
Defendants departed from accepted practice by failing to perform a proper workup, failing to
refer for appropriate studies, and failing to treat emergent VTE/PE. These conflicts raise triable
issues of fact precluding summary judgment. See Chillious v. Edouard, 234 AD3d 737, 741 (2d Dept. 2025); Clarke v. New York City Health &
Hosps., 210 AD3d 631, 633 (2d Dept. 2022); Ivey v. Mbaidjol, 202 AD3d 1070, 1072 (2d Dept. 2022); Estate of Simeone v. Intermed Med. of
NY, Inc., 237 AD3d 666, 668-669 (2d Dept. 2025); Maestri v. Pasha, 198 AD3d 632, 635 (2d Dept. 2021).
Inasmuch as the cause of action alleging wrongful death is premised on the KJMC
Defendants' alleged medical malpractice, the same conclusions apply to both causes of action. See Powell v. Oudkerk, 237 AD3d
992, 995 (2d Dept. 2025) (declining to dismiss a wrongful death claim where there were
triable issues of fact as to whether defendant committed medical malpractice).
Contrary to the KJMC Defendants' contention,[FN55]
Plaintiff's experts in the fields of in emergency medicine and internal medicine/pulmonology
were each qualified to render opinions within their respective fields of expertise. Both experts are
licensed physicians in the State of New York. One is board certified in emergency medicine,
while the other is board certified in internal medicine and pulmonary disease.[FN56]
Plaintiff's expert in emergency medicine avers they serve as an attending physician in an
emergency department, is the director of quality for that department, and holds an academic
appointment as an assistant professor of emergency medicine.[FN57]
This expert further states that they evaluated and treated numerous patients with pulmonary
embolism and is familiar with the applicable standards of care for the evaluation, diagnosis, and
treatment of that condition. Id.
Similarly, Plaintiff's internal medicine and pulmonology expert attested to having evaluated
and treated many patients with pulmonary embolism and being fully familiar with the [*8]standards of care governing its diagnosis and
management.[FN58]
Accordingly, each of Plaintiff's experts established an adequate foundation for their opinions,
based on their clinical experience and their familiarity with the applicable standards of care. See Moon Ok Kwon v. Martin, 19
AD3d 664, 664 (2d Dept. 2005) ("A physician need not be a specialist in a particular field to
qualify as a medical expert and any alleged lack of knowledge in a particular area of expertise
goes to the weight and not the admissibility of the testimony."). Moreover, because the experts'
opinions were confined to their respective areas of specialization, they were not required to
produce official medical guidelines or other external materials to establish the reliability of those
opinions. See Mehtvin v. Ravi, 180 AD3d 663, (2d Dept. 2020).
Accordingly, summary judgment is denied as to the KJMC Defendants.
B. Defendant Dr. Rimarachin
Dr. Rimarachin established a prima facie case for dismissal of the malpractice and
wrongful death claims by submitting, among other things, the affirmation of expert Dr. Andrew
W. Menzin,[FN59]
who opined that his evaluation on July 21, 2018 was appropriate and did not deviate from
obstetrical/gynecological standards.[FN60]
See Paglinawan v. Jeng, 211 AD3d
743, 745 (2d Dept. 2022); Pettway
v. Vorobyeva, 202 AD3d 1116, 1117 (2d Dept. 2022). The "complaints [the patient] , , ,
reported to Dr. Rimarachin were consistent with her history of uterine fibroid and with urinary
tract concerns," rather than with the ongoing (or already developed) VTE and/or PE.[FN61]
However, Plaintiff's expert in obstetrics/gynecology [FN62]
raised triable issues of fact by opining that Dr. Rimarachin departed from accepted medical
standard of care by failing to obtain a thorough history and refer the decedent for immediate
pulmonary or emergency evaluation.[FN63]
The expert concluded such failures were substantial factors contributing to her death from PE.
See Valerio v. Chaudhry, 2025 NY Slip Op. 04594 (2d Dept. 2025); Chillious v. Edouard, 234 AD3d
737, 740-741 (2d Dept. 2025); Joyner v. Middletown Med., P.C., 183 AD3d 593 (2d Dept.
2020).
Given these competing expert opinions, the scope of Dr. Rimarachin's responsibility, if [*9]any, is an issue for the jury. See Adams v. Pilarte, 152 AD3d 97, 102 (1st Dept. 2017).
CONCLUSION
For the foregoing reasons:
• The motion by the KJMC Defendants (Mot. Seq. 4) is
denied.
• The motion by Defendant Dr. Rimarachin (Mot. Seq.
5) is granted in part to the extent Plaintiff's medical malpractice claims against him for treatment
prior to July 21, 2018 are dismissed, and the remainder of his motion is
denied.
The Court has considered the parties' remaining contentions and finds
them unpersuasive or academic.
This constitutes the Decision and Order of the Court.
Dated: September 13, 2025
Brooklyn, New York
Hon. Patria Frias-Colón,
J.S.C.
Footnotes
Footnote 1: Plaintiff abandoned her medical
malpractice/wrongful death claims, insofar as they were predicated on the patient's visits to Dr.
Rimarachin before July 21, 2018, by failing to address such visits in her opposition papers. See Powell v. Oudkerk, 237 AD3d
992, 995 (2d Dept. 2025); Spiegel
v. Beth Israel Med. Ctr.-Kings Highway Div., 149 AD3d 1127, 1130 (2d Dept. 2017).
Footnote 2: When quoting from the medical
records, the Court spelled out all abbreviations, corrected typographical errors, and omitted
unnecessary capitalization. Further, when quoting from the deposition transcripts, the Court
incorporated the deponent's post-deposition corrections.
Footnote 3: NYSCEF Doc. # 92, Summons
and Verified Complaint dated July 26, 2019; Amended Verified Complaint dated July 13, 2022.
Footnote 4: A leiomyoma is defined as "[a]
benign neoplasm derived from smooth (nonstriated) muscle [tissue]." Stedman's Medical
Dictionary, Entry # 486540 (emphasis added). Although a fibroid is often used as a synonym for
a leiomyoma, the two are not the same. A fibroid is "[a] benign neoplasm derived from fibrous
connective tissue." Stedman's Medical Dictionary, Entry # 331480 (emphasis added).
Whereas muscle tissue can contract and relax, connective tissue is unable to do so because it
lacks the contractile properties. For consistency and accuracy, the word "leiomyomas" is used in
place of "fibromas" whenever they appear in KJMC's medical chart and in Defendants' pretrial
testimony.
Footnote 5: NYSCEF Doc. # 96, KJMC's
medical chart, page 000015, Transabdominal Ultrasound dated July 20th at 8:09 p.m.
("Uterus/cervix: The uterus is enlarged...and contains [leiomyomas;] measured [leiomyomas] are
respectively 4.9 cm posterior fundal intramural[,] and 5.3 cm anterior fundal intramural."); page
000008, Dr. Barney's Review of Systems dated July 20th and timed at 7:23 p.m.
("Abdomen:...mild-moderate tenderness in the suprapubic area[;] [13] week gravid uterus from
[leiomyomas]."); page 000022, nonparty general surgery resident Omar Wain, M.D.'s Consulting
Note dated July 20th at 10:20 p.m. ("Abdomen:...palpable [leiomyomas] at the level of
umbilicus"), which was cosigned by nonparty obstetrics/gynecology attending Frank
Kwakye-Berko, M.D.
Footnote 6: NYSCEF Doc. # 103, Dr.
Barney's EBT transcript, page 13-17 (acknowledging that stasis of blood in deep veins was a
predisposing factor to developing VTE or PE).
Footnote 7: Stasis and hypercoagulability
are two of the three elements of the "Virchow triad," which is a "functional triad concerned with
the pathogenesis of [blood] thrombosis, following this order: 1. changes in the vessel wall; 2.
changes in the pattern of blood (flow volume); and 3. changes in the constituents of blood
(hypercoagulability)." Stedman's Medical Dictionary, Entry # 936020.
Footnote 8: NYSCEF Doc. # 96, KJMC's
medical chart, page 000023, ECG report, taken on July 20th at 8:55 p.m. This was the only time
that anyone at KJMC took the patient's ECG during her overnight stay. Not only did Dr.
Rimarachin fail to take the patient's ECG at the July 21st visit, but he also failed to take her vital
signs. According to Plaintiff's expert in emergency medicine, the patient's McGinn-White sign
(as reflected in KJMC's ECG of the patient) was "suggestive of a pulmonary embolism."
NYSCEF Doc. #127, Plaintiff's Expert Emergency Medicine Affirmation dated February 27,
2025, ¶ 13.
Footnote 9: NYSCEF Doc. # 96, KJMC's
medical chart, pages 000007-000008, Dr. Barney's Physician History & Physical (Medical)
note dated July 20th at 7:10 p.m. ("Patient feels...short of breath...."; "Review of
Systems:...positive for shortness of breath...."). See NYSCEF Doc. # 102, Plaintiff's EBT
transcript, page 30, line 20 to page 31, line 19 ("[In the course of her pregnancy, the patient] said,
multiple times, that she was short of breath.***[She first complained of shortness of breath] a
week before she went to [KJMC].***[I was with the patient] when she experienced the shortness
of breath....She was gasping. You could hear it in her voice.***She was [lying] down [when she
made those complaints of shortness of breath]"; page 32, lines 6-14 ("[Y]ou could hear [the
patient] being short of breath...[e]very day for that week up until the day she passed [on Tuesday,
July 24th]"; page 33, line 10-15 and page 40, lines 9-13 (testifying that plaintiff heard the patient
tell an emergency physician at KJMC that she was short of breath); page 35, line 10-21 (the
patient experienced "the shortness of breath" the day before she went to KJMC's ER and told her
daughter, Plaintiff herein, to call 911 "[b]ecause she [the patient] couldn't breathe"); page 42,
lines 13-22 (while the patient remained at KJMC, Plaintiff "hear[d] [patient] having shortness of
breath"); page 46, lines 2-7 (at the time the patient was discharged, patient complained to the
doctors that "it was hard [for her] to breathe"); page 79, lines 11-19 (testifying that "[the patient]
was still out of breath" at the time of her discharge from KJMC); page 48, lines 9-16 (testifying
that the patient "was still experiencing shortness of breath" after her visit with Dr. Rimarachin on
July 21st). See also NYSCEF Doc # 101, Emmanuel's EBT transcript, page 46, lines 7-10
(testifying that the first time the patient experienced shortness of breath "would be more than a
week before she died"); page 47, lines 12-16 (testifying that he first observed the patient short of
breath "about a week before she died"); page 47, lines 21-23, and page 48, line 10 to page 49,
line 2 (testifying that he observed that "[the patient] couldn't breathe..., and she was perspiring,
and you could see that she [had] difficulty breathing"); page 78, lines 16-19 (confirming that he
heard the patient complain to a nurse about difficulty breathing).
Footnote 10: NYSCEF Doc. # 96,
KJMC's medical chart, page 000005, Nursing Triage Note dated July 20th at 6:41 p.m. (the
patient presented with the "complaint of lower abdominal [pain]...for about 2 days"); page
000007, Dr. Barney's Physician History & Physical (Medical) note dated July 20th at 7:10
p.m. ("since yesterday[,] low abdominal pain worsening today***Location: low abdomen;
Duration: 2 days; Severity: moderate; Timing: progressively increasing; Quality: cramping;
Context: at rest."); page 000003, Vital Signs (documenting patient's pain score at 6/10 at 6:44
p.m. and, again, at 7:58 p.m., on July 20th); page 000004, Current Orders (documenting that the
administration of Morphine 2 mg IV push to the patient at 7:58 p.m. of July 20th); page 000003,
Vital Signs (documenting that the patient's next measured pain score, at 6:19 a.m. the following
morning, July 21st, was 2/10). See NYSCEF Doc. # 103, Dr. Barney's EBT transcript,
page 26, line 8 to page 28, line 24 (concurring with the contents of the Nursing Triage Note).
See also NYSCEF Doc. # 102, Plaintiff's EBT transcript, page 34, line 9 to page 35, line
9 (testifying that the patient started experiencing severe abdominal pain the day before she went
to KJMC's ER, and that her abdominal pain was getting worse). See also NYSCEF Doc.
# 101, Emmanuel's EBT transcript, page 55, lines 2-3 ("[the patient] had always pain the pelvic
region"); page 55, lines 17-21 (the patient first complained of pain in the pelvic region "probably
a month, month and a half after the pregnancy started; about a month and a half"); page 88, lines
7-25 (testifying that the patient experienced "constant" pelvic pain); page 89, lines 14-15 ("it's
only the pelvic pain [which] was constantly present").
Footnote 11: NYSCEF Doc. # 96,
KJMC's medical chart, page 000007, Dr. Barney's Physician History & Physical (Medical)
note dated July 20th at 7:10 p.m. ("On arrival to [the] Emergency [Room,] more vaginal bleeding
with clots."); page 000008, Dr. Barney's Assessment/Plan dated July 20th at 7:23 p.m. ("Patient
with active vaginal bleeding."); page 000007, Nurse Cynthia Wright's note dated July 21st at
2:26 a.m.) ("patient passed large clots[;] [night-shift emergency attending] Dr. Hanna informed");
page 000009, Dr. Hanna's "MD Note" dated July 21st at 6:54 a.m. ("I was informed by RN
Cynthia Wright that [the] patient is still in the Emergency [Room] with vaginal bleed; she [Nurse
Cynthia Wright] decided to repeat her CBC for follow[-] up...this time...."). See NYSCEF
Doc. # 101, Emmanuel's EBT transcript, page 62, lines 8-10 ("every time [the patient]
urinated,...it's like a bunch of blood clots that followed"); page 62, lines 15-17 (questioning a
nurse's decision to discharge the patient, "How [can] you discharge her? She is bleeding. Every
time she urinates, it's all blood, blood, blood clot"); page 66, line 23 to page 67, line 3 ("I was the
one that the nurse said...go get the bedpan [for the patient]. I went to look for the bedpan for her
because she is [bleeding], too much blood."); page 71, line 15 to page 72, line 13 (When the
patient was urinating, there was "[a] lot of blood[;] a blood clot, dark blood.***And they were
big, big clots.***[The blood clots were] [b]igger than a quarter."); page 72, lines 14-17 (every
time the patient urinated her "urine was complete[ly] red"); page 76, lines 8-11 ("[The patient]
was putting blood when urinating...only the blood, urine and blood clot."); page 80, lines 4-5
("every time [the patient] urinate[d] [,] there was blood").
Footnote 12: NYSCEF Doc. # 96,
KJMC's medical chart, pages 000012 and 000014, Lab Results (reflecting patient's Hemoglobin
reading was low at 11.1 on July 20th at 6:49 p.m., and that her Hemoglobin reading was even
lower at 9.2 on July 21st at 5:44 a.m., with the normal range of 12-16, indicative of her ongoing
uterine bleeding during her overnight stay in KJMC's ER). Dr. Barney, however, characterized
her initial blood test reports as "[s]light abnormalities in general." See NYSCEF Doc. #
103, Dr. Barney's EBT transcript, page 67, line 23 to page 68, line 7. As noted, Nurse Cynthia
Wright ordered a repeat of the patient's complete blood count. See NYSCEF Doc # 96,
KJMC's medical chart, page 000009. Although the repeated blood count, reported at 5:44 a.m. on
July 21st, showed that the patient's Hemoglobin fell to 9.2 from 11.1 (representing a 20% drop),
neither Dr. Hanna nor Dr. Wojciula-Tomaszewski modified Dr. Barney's original plan of
discharging the patient home. See NYSCEF Doc. # 104, Dr. Hanna's EBT transcript,
page 80, lines 19-24 (testifying that he ordered a repeat complete blood count because of Nurse
Cynthia Wright's concerns); page 70, lines 11-13 (further testifying that he reviewed the repeat
complete blood count lab report before the patient was discharged from KJMC). See also
NYSCEF Doc. # 105, Dr. Wojciula-Tomaszewski's EBT transcript, page 33, lines 17-21
(describing the patient's further reduced Hemoglobin level of 9.2 on the repeat complete blood
count as a "slight anemia"); page 34, lines 11-15 (attributing the patient's anemia to her
leiomyomas, as well as to her menstrual bleeding even though the patient, at the time, was
amenorrheic [i.e., no menstrual periods for three or more months] due to her ongoing
pregnancy); page 37, lines 10-11 (acknowledging a drop in Hemoglobin on the repeat complete
blood count, while testifying that such drop did not "warrant[ ] any action").
Footnote 13: NYSCEF Doc. # 96,
KJMC's medical chart, page 000016, Disposition Summary, dated July 21st and timed at 8:01
a.m. According to the Discharge Instructions at KJMC's medical chart, page 000020, Dr. Barney
pre-signed the patient's discharge the night before, July 20th at 9:47 p.m., shortly before the end
of his daytime shift at 10 p.m. See NYSCEF Doc. # 103, Dr. Barney's EBT transcript,
page 20, lines 2-3 ("My shift that day [July 20th] would've been from 10 a.m. to 10 p.m."); page
54, lines 13-14 (acknowledging that he "officially discharged [the patient]"; page 54, line 24 to
page 55, line 5 ("I [Dr. Barney] discharged the patient. I ordered [a particular medication]
because she was Rh-negative[,] and I discharged the patient. The patient stayed overnight
because [the medication at issue]...[was]...difficult...to acquire from the pharmacy."). Dr.
Barney's official discharge of the patient from KJMC's ER in the evening of July 20th was
thereafter concurred to by his night-shift (7 p.m. to 7 a.m.) successor, emergency attending Dr.
Hanna, and concurred to (and continued) by Dr. Hanna's daytime-shift (7 a.m. to 7 p.m.)
successor, emergency attending Dr. Wojciula-Tomaszewski. In that regard, Dr.
Wojciula-Tomaszewski testified (at page 24, lines 5-8, and at page 26, line 17 to page 27, line 6
of his EBT transcript at NYSCEF Doc. # 105) that "there were no abnormal findings in the
patient's physical status at the time [he] saw the patient [at bedside], [and] there was no reason to
consider any other diagnosis [except for a threatened abortion]." As a sign-out of the patient from
Dr. Hanna to Dr. Wojciula-Tomaszewski, the latter testified (at page 47, lines 12-16 of his
deposition at NYSCEF Doc. # 105) that he "physical[ly] discharge[d]" her home from KJMC's
ER at 8:12 a.m. on Saturday, July 21st, according to Nurse Bernadette Udeozor's note.
See NYSCEF Doc. # 96, KJMC's medical chart, page 000011 (Final Emergency Room
Chart).
Footnote 14: As noted, Plaintiff
abandoned her medical malpractice/wrongful death claims, insofar as they were predicated on the
patient's visits to Dr. Rimarachin before July 21st.
Footnote 15: NYSCEF Doc. # 101,
Emmanuel's EBT transcript, page 90, line 23 to page 91, line 4 ("[Dr. Rimarachin] released [the
patient] with only one prescription, Tylenol. He said don't take anything for the whole weekend,
only Tylenol, until he gets [her] a place in a hospital to remove the baby on Monday [July
23rd]."); page 91, lines 20-22 ("[Dr. Rimarachin] told [the patient] not to take any other
medication; just Tylenol for the whole weekend.").
Footnote 16: NYSCEF Doc. # 101,
Emmanuel's EBT transcript, page 92, line 19 to page 93, line 6 ("[W]e were waiting on
Monday...the 23rd of July, for a call from [Dr. Rimarachin] to let us know where that abortion
was going to take place. At 12 noon, [Dr. Rimarachin] never called, never called. Then at this
moment, I [Emmanuel] told [the patient] to get in touch with [Dr. Rimarachin], to call him, or
write a message to him, because [the patient was] not going to heal [that night] in [her] condition.
I asked [the patient] Monday around 12 [noon, and] she wrote the note [to Dr. Rimarachin].").
Footnote 17: NYSCEF Doc. # 106, Dr.
Rimarachin's EBT transcript, page 100, lines 7-8.
Footnote 18: NYSCEF Doc. # 106, Dr.
Rimarachin's EBT transcript, page 105, lines 16-24.
Footnote 19: The patient's text exchange
was via Dr. Rimarachin's personal mobile phone. NYSCEF Doc. # 106, Dr. Rimarachin's EBT
transcript, page 86, lines 18-20 ("I do not usually give my cell phone [number] to patients, but
since she was very adamant about this[,] I g[a]ve her my cell phone [number].").
Footnote 20: NYSCEF Doc. # 102,
Plaintiff's EBT transcript, page 50, line 16 to page 51, line 3 (testifying that "[the patient's]
eyes...rolled back and she...slumped over"). NYSCEF Doc. #103, Emmanuel's EBT transcript,
page 93, line 20 to page 94, line 9 (In the afternoon of Monday, July 23rd, the patient "was sitting
on the couch and ready to eat some cornflakes when I [Emmanuel] saw both of her eyes turning
around. I saw the white part of the eyes only, turning around. And then she ma[d]e a noise. It
surprised me. She made a noise. When I looked at her, she was falling with her eyes turning
around, and she was like vomiting....And then she's gone. She's gone. And I said to Elizabeth
[Plaintiff herein], 'Call 911.'").
Footnote 21: The records of the
responding ambulance and of Brookdale Hospital Medical Center are not part of the record
before the Court.
Footnote 22: NYSCEF Doc. # 125, Death
Transcript, dated July 31, 2018. The fetus died with the patient-mother. See NYSCEF
Doc. # 99, OCME's Form ME 22, internal reference document, page 000014.
Footnote 23: NYSCEF Doc. # 106, page
86, line 25 (Dr. Rimarachin considered that the patient was "doing okay" because she did not
have "any extra bleeding") (footnote by the Court).
Footnote 24: NYSCEF Doc. # 116 is an
authenticated copy of the July 23rd text exchange between the patient and Dr. Rimarachin.
See NYSCEF Doc. # 106, Dr. Rimarachin's EBT transcript, page 83, line 20 to page 86,
line 6 (authenticating the July 23rd text exchange between him and the patient).
Footnote 25: NYSCEF Doc. # 106, Dr.
Rimarachin's EBT transcript, page 93, lines 19-22; page 92, line 23 to page 93, line 4.
Footnote 26:NYSCEF Doc. # 106, Dr.
Rimarachin's EBT transcript, page 83, lines 11-15 ("Q. What was the plan in terms of terminating
the pregnancy? A. My calculation was by then, that would be Wednesday[, July 25th], we should
have got the date for the procedure.").
Footnote 27:NYSCEF Doc. # 106, Dr.
Rimarachin's EBT transcript, page 87, lines 2-24.
Footnote 28:NYSCEF Doc. # 106, Dr.
Rimarachin's EBT transcript, page 88, line 9 to page 92, line 5.
Footnote 29:NYSCEF Doc. # 99,
OCME's reports and notes.
Footnote 30:NYSCEF Doc. # 99,
OCME's Report of Autopsy, page 000001, Cause of Death.
Footnote 31:NYSCEF Doc. # 99,
OCME's Report of Autopsy, page 000001, Final Diagnoses.
Footnote 32:NYSCEF Doc. # 99,
OCME's Report of Autopsy, page 000003, Cardiovascular System (emphasis added).
Footnote 33:NYSCEF Doc. # 103, Dr.
Barney's EBT transcript, page 62, lines 4-17; page 63, lines 5-6.
Footnote 34:NYSCEF Doc. # 99,
OCME's Report of Autopsy, page 000003, Cardiovascular System (emphasis added).
Footnote 35:NYSCEF Doc. # 103, Dr.
Barney's EBT transcript, page 60, lines 3-9.
Footnote 36:NYSCEF Doc. # 103, Dr.
Barney's EBT transcript, page 50, line 7 to page 54, line 6 (explaining that Dr. Wain, though
generally a surgery resident, functioned as a de facto in-house consulting obstetrician because
KJMC had no in-patient obstetrics/gynecology service). See NYSCEF Doc. # 105, Dr.
Wojciula-Tomaszewski's EBT transcript, page 29, line 18 to page 30, line 5 (testifying that Dr.
Wain as a surgeon "gets knowledge and training in [gynecology] as well").
Footnote 37:NYSCEF Doc. # 103, Dr.
Barney's EBT transcript, page 46, lines 12-24 (emphasis added).
Footnote 38:NYSCEF Doc. # 103, Dr.
Barney's EBT transcript, page 98, line 19 to page 99, line 3 (emphasis added).
Footnote 39:In Dr. Barney's view, the
patient's shortness of breath was "very unlikely" or "extremely unlikely" as a cause of her PE
because she "had no chest pain, no pleuritic chest pain." See NYSCEF Doc. # 103, page
102, line 3-13; page 102, line 21 to page 103, line 5.
Footnote 40:NYSCEF Doc. # 104, Dr.
Hanna's EBT transcript, page 56, line 18-25.
Footnote 41:NYSCEF Doc. # 104, Dr.
Hanna's EBT transcript, page 74, line 23 to page 75, line 5.
Footnote 42:NYSCEF Doc. # 104, Dr.
Hanna's EBT transcript, page 81, line 7 to page 82, line 10.
Footnote 43:NYSCEF Doc. # 105, Dr.
Wojciula-Tomaszewski's EBT transcript, page 27, lines 20-22.
Footnote 44:NYSCEF Doc. # 105, Dr.
Wojciula-Tomaszewski's EBT transcript, page 28, lines 14-17.
Footnote 45:NYSCEF Doc. # 105, Dr.
Wojciula-Tomaszewski's EBT transcript, page 50, lines 10-14.
Footnote 46:NYSCEF Doc. # 87, Note of
Issue, dated October 9, 2024.
Footnote 47:For example, Dr. Hanna
testified from his recollection that: (1) the patient "kept asking [him], [w]hy are you keeping me?
I need to go home"; (2) he examined the patient at bedside between 3 a.m. and 4 a.m. on July
21st; (3) he did not "document all normal exams, [he] document[ed] [only] abnormal exams"; (4)
"with a large volume, when I'm making my rounds, [he] document[ed] [only] abnormal findings
or abnormal complaints"; and (5) the patient denied "shortness of breath when [he] asked her."
See NYSCEF Doc. # 104, Dr. Hanna's EBT transcript, page 21, lines 13-18; page 60,
lines 18-23; page 48, lines 14-21; page 59, line 15 to page 60, line 19; page 61, lines 18-20; page
62, lines 2-4; page 58, line 10 to page 59, line 14, page 75, lines 12-13; page 76, lines 17-25.
Footnote 48:Pursuant to CPLR §
4519, "[u]pon the trial of an action..., a party or a person interested in the event...shall not be
examined as a witness in his [or her] own behalf or interest...against the...administrator...of a
deceased person...concerning a personal transaction or communication between the witness and
the deceased person..., except where the...administrator...is examined in his [or her] own behalf,
or the testimony of the...deceased person is given in evidence, concerning the same transaction or
communication." "Generally, evidence that would be inadmissible at trial under the Dead Man's
Statute may not be relied upon to establish a prima facie entitlement to judgment as a matter of
law." Weber v. Sharma, 232 AD3d
930, 932 (2d Dept. 2024). Because Drs. Barney, Hanna, Wojciula-Tomaszewski, and
Rimarachin are parties here, thus interested in the outcome of this action, their respective
deposition testimony, to the extent based on their communications with the patient and not
documented in the applicable medical records, cannot be considered as evidence in support
of their respective motions for summary judgment. See Weber, 232 AD3d at 932; Grechko v. Maimonides Med. Ctr., 188
AD3d 832, 835 (2d Dept. 2020). Separately from the foregoing, however, "the [patient's]
medical records [are] admissible as pertinent to the diagnosis and treatment of the [patient]."
Weber, 232 AD3d at 932; Butler
v. Cayuga Med. Ctr., 158 AD3d 868, 873 (3d Dept. 2018).
Footnote 49:NYSCEF Doc. # 91, Expert
Affirmation of Robert H. Meyer, M.D. dated December 2, 2024.
Footnote 50:NYSCEF Doc. # 91, KJMC
Defendants' Expert Affirmation, ¶ 13 (while the defense expert acknowledged that the
patient's ECG "revealed sinus tachycardia," he was silent as to the McGinn-White sign that was
also shown by the same ECG). Compare
Carcia v. Greif, 182 AD3d 464, 465 (1st Dept. 2020) (defendants presented evidence
that they continuously monitored the plaintiff's ECG, which was improving, and the T wave
inversions they identified were not indicative of pulmonary embolism or venous
thromboembolism).
Footnote 51:NYSCEF Doc. # 91, KJMC
Defendants' Expert Affirmation, ¶ 45 (conceding that "shortness of breath related to a
pulmonary embolism is persistent, does not go away, especially not within 12 hours waiting in an
Emergency Department"); ¶ 48 ("Without shortness of breath, there is no indication that
[the patient] might have a pulmonary embolism or thrombosis that required additional lab work
or testing."). Rather, KJMC Defendants' Expert repeatedly insisted throughout his Affirmation
that the patient was not suffering from shortness of breath (except for a "single," "isolated,"
"transient" episode) during her stay in KJMC. See NYSCEF Doc. # 91, KJMC
Defendants' Expert Affirmation, ¶ 31 ("a single complaint of shortness of breath [by the
patient] to Dr. Barney and the triage nurse"); ¶ 38 ("At one point in one time throughout the
entirety of the medical records, [the patient] had one complaint of shortness of breath that
resolved and never reported shortness of breath to any staff and/or physician at KJMC again.");
¶ 38 (the patient had a "single instance of shortness of breath" and a "single instance of
transient shortness of breath," which "resolved prior to discharge [from KJMC's ER]"); ¶
39 (the patient "had a single instance of transient shortness of breath upon her admission to
[KJMC]"); ¶ 42 (the patient "was negative for shortness of breath" in KJMC); ¶ 46 (a
"single instance and/or transient shortness of breath***[which] resolved [during her stay in
KJMC]"); ¶ 51 ("a single report of shortness of breath"); ¶ 63 (the patient's "shortness
of breath...resolved [during her stay in KJMC]").
Footnote 52:NYSCEF Doc. # 91, KJMC
Defendants' Expert Affirmation, ¶ 44 (attributing the patient's lower abdominal pain to "a
threatened abortion" or to "a clear threatened abortion, which is common and diagnosed often
within Emergency Departments," even though the patient's leiomyomas which weighed 5.9
pounds at autopsy were palpated, at the level of umbilicus, by general surgery resident Dr. Wain
during his bedside examination of the patient); ¶ 46 (opining that the patient was
"appropriately diagnosed with a threatened abortion"); ¶ 47 (further opining that "the only
plausible diagnosis could have been threatened abortion"); ¶ 65 (opining that the patient
"had no abnormal findings during her physical examination with Dr. Hanna and Dr.
Wojciula-Tomaszewski"); ¶ 68 (opining that the patient's complaints of . . . abdominal pain
resolved prior to her discharge from KJMC"); ¶ 69 (the patient's "complaints resolved by
the time she was discharged [from KJMC]").
Footnote 53:NYSCEF Doc. # 91, KJMC
Defendants' Expert Affirmation, ¶ 41 (downplaying the patient's abnormally low
Hemoglobin reading as being "not out of the ordinary").
Footnote 54:The KJMC Defendants'
contention (in ¶ 21 of their counsel's reply affirmation at NYSCEF Doc. # 149) that "[the
patient's] cause of death and autopsy report are tainted and unreliable," is unfounded. Public
Health Law § 4214(1) provides that "[t]he director or person having lawful control and
management of any hospital in which a patient has died [here, Brookdale] may order the
performance of an autopsy upon the body of such deceased person, after first giving notice of the
death to the next of kin of such person, unless the body is claimed or objection is made to such
autopsy by the next of kin within forty-eight hours after death, or within twenty-four hours after
such notice of death." The request to the OCME for the autopsy came from a Dr. Olivo at
Brookdale with the patient's family's consent. See NYSCEF Doc. # 99, OCME's
Investigation Report, dated July 27, 2018 (one day before the autopsy), pages 000012-000013.
Footnote 55:NYSCEF Doc. # 149, KJMC
Defense Counsel's Reply Affirmation in Further Support, dated March 13, 2025, ¶ 10
("Plaintiff's Expert Affirmations do not detail the experts' credentials, education, training, or any
details on their license to practice medicine."); ¶ 11 ("Plaintiff's experts fail to provide any
information or specifics as to their education, such as where they went to medical school,
completed internships, fellowships, or residencies, where they are licensed to practice medicine
and when, or what training and experience they have in the specific specialty in question.
Moreover, there is no evidence that [P]laintiff's experts are familiar with the applicable standards
of care in New York, where the care and treatment in this matter took place.").
Footnote 56:NYSCEF Doc. # 137, Expert
Emergency Medicine Affirmation, introductory paragraph and ¶ 1; NYSCEF Doc. # 139,
Expert Pulmonology Affirmation, introductory paragraph and ¶ 1.
Footnote 57:NYSCEF Doc. # 137, Expert
Emergency Medicine Affirmation, ¶ 1.
Footnote 58:NYSCEF Doc. # 139, Expert
Pulmonology Affirmation, ¶ 1.
Footnote 59:NYSCEF Doc. # 112, Expert
Affirmation of Andrew W. Menzin, M.D., dated December 2, 2024, ¶ 5.
Footnote 60:NYSCEF Doc. # 112, Dr.
Rimarachin's Expert's Affirmation, ¶ 52.
Footnote 61:NYSCEF Doc. # 112, Dr.
Rimarachin's Expert Affirmation, ¶ 56.
Footnote 62:NYSCEF Doc. # 138,
Plaintiff's Expert Ob/Gyn Affirmation dated February 24, 2025. In ¶ 5 of his counsel's reply
affirmation at NYSCEF Doc. # 146, Dr. Rimarachan's contention that Plaintiff's expert
obstetrician failed to state "even [their] licensure" is incorrect. In the introductory paragraph of
their affirmation at NYSCEF Doc. # 138, Plaintiff's expert confirms they are licensed in the State
of New York.
Footnote 63:NYSCEF Doc. # 138,
Plaintiff's Expert Ob/Gyn Affirmation, ¶ 19 and ¶¶ 13, 15-18.