Brooks v New York City Health & Hosps. Corp.

Supreme Court, Kings County

Decided on April 6, 2026

Index No. 523112/2023

Consuelo Mallafre Melendez, J.

Recitation, as required by CPLR §2219 (a), of the papers considered in the review:

NYSCEF #s: 22-34, 35-37, 38

Defendant The New York City Health and Hospitals Corporation ("NYCHHC"), also sued herein as Kings County Hospital Center, moves for an Order, pursuant to CPLR 3212, granting summary judgment in their favor. Plaintiff opposes the motion as to the medical malpractice claims.

As stated in oral argument on March 31, 2026, Plaintiff does not oppose the part of the [*2]motion seeking summary judgment on the negligent hiring, retention, supervision, and training claims. Accordingly, that part of the motion is granted without opposition.

Plaintiff commenced this action on August 10, 2023, asserting claims of medical malpractice against NYCHHC. Her claims arise from alleged failure to timely diagnose and treat her heterotopic pregnancy, a condition where one fertilized egg implants inside the uterus and another egg implants outside the uterus.

On May 27, 2022 at 1:47 p.m., Plaintiff presented to the emergency department at Kings County Hospital Center with complaints of abdominal pain. She was 36 years old and approximately six weeks pregnant. She had a history including three prior c-section births and an ectopic pregnancy resulting in a right-side salpingectomy in 2019.

Plaintiff was examined by emergency department resident Balal Aslam, M.D. ("Dr. Aslam"), whose assessment was co-signed by emergency attending physician Hannah Locascio, M.D. A transabdominal ultrasound showed an intrauterine pregnancy with normal fetal movement and heart rate. Plaintiff's urinalysis returned positive for bacteriuria, and she was diagnosed with a UTI and threatened abortion (i.e., miscarriage risk). Plaintiff was discharged at 5:26 p.m. with an antibiotic prescription and an ob/gyn appointment scheduled for June 3, 2022.

On June 3, Plaintiff had an initial ob/gyn visit at Kings County Hospital Center with Michaelle Jimenez-Dolne, N.P. ("N.P. Jimenez-Dolne"). Plaintiff was still taking the prescribed course of antibiotics and complained of "mild lower abdominal pain and constipation." Blood and urine tests were performed, and an order was placed for a routine obstetrical ultrasound, scheduled for June 21FN1.

Plaintiff contacted the ob/gyn clinic by telephone on June 7 about her continued lower abdominal pain. She was advised to "come into ED for evaluation" according to the nursing note. Plaintiff testified that she did not go to the emergency room on that date because her pain was "subsiding."

On June 9, Plaintiff was taken by ambulance to nonparty Brookdale Hospital with severe abdominal pain. She was discovered to have a heterotopic pregnancy, a rare condition where a patient has an ectopic pregnancy and intrauterine pregnancy simultaneously. She underwent an emergent exploratory laparotomy and left salpingectomy. The operative report noted bleeding in the peritoneal cavity and left fallopian tube rupture.

Plaintiff was discharged from Brookdale Hospital on June 12, 2022. Plaintiff's intrauterine pregnancy remained viable, and she gave birth in November 2022.

Plaintiff alleges that the Kings County Hospital Center providers failed to timely diagnose and treat her ectopic/heterotopic pregnancy, and their departures from the standard of care proximately caused her injuries, including fallopian tube rupture and need for emergency surgery.

In evaluating a summary judgment motion in a medical malpractice action, the court considers the "essential elements" of medical malpractice: "(1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024] [internal quotation marks and citations omitted].) "Thus, a defendant moving for summary judgment must make a prima [*3]facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries. To meet that burden, a defendant must submit in admissible form factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice." (I.d.) "If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof" (Delia v Wieder, 236 AD3d 857, 858 [2d Dept 2025]). "Generally, summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Garcia v Hollander, 241 AD3d 651, 653 [2d Dept 2025] [internal quotation marks and citations omitted].) However, "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]).

In support of their motion, NYCHHC submits an expert affirmation from Gregory Mazarin, M.D. ("Dr. Mazarin"), a licensed physician board certified in emergency medicine. The Court finds he has laid a proper foundation to opine on the alleged acts and omissions of the emergency department physicians and staff.

Dr. Mazarin opines that all the care Plaintiff received in the emergency department on May 27, 2022 complied with good and accepted medical practice. He opines that her chief complaint of abdominal pain with no bleeding, during early pregnancy, was nonspecific and "could be indicative of many disorders." The expert opines that resident Dr. Aslam appropriately conducted a physical examination which revealed "mid suprapubic area pain" and a soft abdomen without distension. He opines that her medical and obstetric history was appropriately taken and documented.

In the expert's opinion, Plaintiff's abdominal ultrasound was performed in accordance with the standard of care, based on her history of ectopic pregnancy and the possibility of miscarriage. The ultrasound indicated her pregnancy was within the uterus, and the fetal heartbeat and movement were detected. The expert opines that the NYCHHC providers then "appropriately obtained a urinalysis to rule out an infection," and it returned positive for a urinary tract infection.

The expert opines that no additional diagnostic tests were warranted at that time. He opines that the diagnosis of urinary tract infection and threatened abortion was "appropriate and reasonable" based on her symptoms of abdominal pain, positive urinalysis test, and the ultrasound "which showed a fetus with a heartbeat in the uterus." He notes that she did not have "severe pain or abdominal tenderness," and her mild abdominal/suprapubic pain was explained by the confirmed UTI. The expert opines that nothing in her presentation on May 27 should have raised suspicion she had an ectopic pregnancy, stating that heterotopic pregnancy is "extremely rare and more common with fertility treatment."

The expert further opines that she was stable for discharge and given appropriate instructions to return to the ob/gyn clinic on June 3, six days later. He opines that this referral for an ob/gyn follow-up and prenatal care was appropriate, and the standard of care did not require an emergent ob/gyn examination on May 27. He also opines she was given proper instructions to return to the emergency department if she had heavy vaginal bleeding or fluid, lower back pain, severe cramping, fever, or chills. In sum, the expert opines that the emergency department physicians "acted reasonably and exercised good medical judgment" based on her clinical presentation, and no additional observation or diagnostic testing was warranted.

The movant also submits an expert affirmation from Janet Stein, M.D. ("Dr. Stein"), a licensed physician board certified in obstetrics and gynecology and maternal fetal medicine.

Dr. Stein opines that on May 27, 2022, an urgent ob/gyn consult was not required by the standard of care, and the emergency department appropriately discharged her with instructions to return on June 3.

Dr. Stein also opines in detail that on June 3, 2022, the ob/gyn workup and evaluation by N.P. Jimenez-Dolne complied with the standard of care. The expert notes that a complete obstetric history was taken, and the patient denied chest pain, shortness of breath, headache, or vaginal bleeding. The expert opines that N.P. Jimenez-Dolne appropriately obtained blood and urine tests and performed a physical exam, which revealed a soft and non-distended abdomen, normal pelvic findings, and a fetal heartbeat.

The expert opines that an ultrasound was not required on the June 3 visit, in light of Plaintiff's "benign examination, prior ultrasound showing an intrauterine pregnancy, and the presence of a fetal heartbeat." She opines that it was within the standard of care to order an obstetrical ultrasound on a routine (not "stat" or emergent) basis. The expert also opines that her scheduled ob/gyn follow-up in 3-4 weeks was within the standard of care.

The expert notes that on June 7, according to the medical chart, Plaintiff called the ob/gyn clinic to ask about test results and reported "continuous lower abdominal pain." The expert opines that the nurse she spoke with properly advised her to go to the emergency department, but Plaintiff chose not to return, and they were therefore unable to reassess her condition.

Dr. Stein opines that although a heterotopic pregnancy was ultimately diagnosed at another facility after her fallopian tube ruptured, "there was no reason to suspect this" at the time she was treated at Kings County Hospital Center. The expert emphasizes that this is an extremely rare condition which occurs naturally in only one of every 30,000 pregnancies, and at the time of her treatment by NYCHHC, all her symptoms pointed to a positive intrauterine pregnancy and UTI diagnosis.

Based on evaluation of the submissions, the movants have established prima facie entitlement to summary judgment. They have provided detailed expert affirmations from physicians with relevant expertise in emergency medicine and obstetrics and gynecology, opining that her treatment was within the standard of care on both visits to Kings County Hospital Center.

Although in hindsight the patient had an ectopic pregnancy in addition to her intrauterine pregnancy, a comparatively rare condition, NYCHHC's experts have rendered opinions that she exhibited no history or symptoms that warranted further admission, consults, or stat/emergent testing when she was treated by the emergency department on May 27 and the ob/gyn clinic on June 3. The ob/gyn expert also opined that NYCHHC's last contact with Plaintiff on June 7, when she reported continued abdominal pain and a nurse advised her to go to the emergency room, was within the standard of care. The burden therefore shifts to Plaintiff to raise an issue of fact.

In opposition, Plaintiff submits an expert affirmation from David A. Mayer, M.D. ("Dr. Mayer"), a licensed physician board certified in general surgery. Dr. Mayer states that he had "training in obstetrics and gynecology" during his surgical residency in the 1970s, and that he has "evaluated and treated numerous patients with ectopic, including heterotopic pregnancies, in both the clinic and emergency room settings." His attached CV indicates education and [*4]experience primarily in vascular surgery and bariatric surgery, with no mention of ob/gyn or emergency care other than serving on Quality Assurance boards involving a wide variety of specialists.

"While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable. Thus, where a physician provides an opinion beyond his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered." (Noble v Kingsbrook Jewish Med. Ctr., 168 AD3d 1077, 1079-1080 [2d Dept 2019] [internal quotation marks and citations omitted]). "Where no such foundation is laid, the expert's opinion is of no probative value, and is therefore insufficient to meet a party's burden on a summary judgment motion (Corujo v Caputo, 224 AD3d 729, 731 [2d Dept 2024]).

The Court finds that Plaintiff's physician has failed to adequately lay a foundation to reliably opine on the issues of this case, particularly involving the standard of care for evaluating and diagnosing an ectopic/heterotopic pregnancy in an emergency department setting. The expert states without detail that "as a broadly trained general surgeon," he is familiar with the standard of care "regarding the evaluation and management of patients presenting with abdominal pain in early pregnancy." However, he offers no basis for this background, education, or experience beyond serving on a general Board of Directors and completing residency rotations decades before the events at issue in this case. As heterotopic pregnancy is an extremely rare condition, laying a proper foundation to render opinions in this field is particularly relevant. For this reason, the Court holds that Plaintiff's expert opinions have no probative value with respect to the standard of care for evaluating and treating a patient in Plaintiff's position from an emergency medicine or obstetrics and gynecology perspective.

Even if the Court accepted the affirmation of Plaintiff's purported expert, his opinions are conclusory and speculative. The physician relies on hindsight reasoning to opine that the emergency department physicians "missed" the patient's ectopic pregnancy by failing to perform an emergent transvaginal ultrasound on May 27. However, he fails to raise a genuine issue of fact to counter the movants' emergency medicine expert that her transabdominal ultrasound (showing a viable fetus in the uterus) and positive urinalysis findings pointed toward a reasonable diagnosis of urinary tract infection, and that she was given appropriate discharge and follow-up instructions.

Of note, Plaintiff's physician affirmation does not address any of the treatment and care provided by the ob/gyn clinic on June 3. His opinion that the emergency department failed to order an urgent or "mandatory" ob/gyn consult and ultrasound before discharging her is contradicted by the fact Plaintiff returned for an ob/gyn examination six days later, and on that date the ob/gyn clinic relied on the ER's abdominal ultrasound and scheduled a further ultrasound in 2-3 weeks. Plaintiff's physician raises no issue of fact to defeat the movants' expert that this routine visit and ultrasound scheduling complied with the standard of care.

Plaintiff's physician briefly criticizes the ob/gyn nurse who spoke with Plaintiff over the [*5]telephone on June 7, stating that when Plaintiff reported her continued abdominal pain, she "brushed her off and told her to go to the ER, something a pregnant female is generally reluctant to do." This statement is wholly speculative, unsupported by the record, and fails to articulate an alleged departure from the standard of care. It is undisputed by that Plaintiff was advised to go to the emergency room by a NYCHHC nurse on June 7, and in fact, she was ultimately diagnosed when she sought emergency treatment two days later.

In sum, Plaintiff has failed to provide an affirmation from an expert qualified to opine on the standard of care with respect to the emergency medicine and ob/gyn treatment in this case. Even if the Court were to consider the general surgeon's affirmation, he fails to raise a genuine issue of fact regarding the May 27, 2022 emergency department visit, as his opinions are conclusory, speculative, and based in hindsight reasoning. Further, he does not address or raise any issues of fact as to the ob/gyn clinic staff who treated Plaintiff on June 3, 2022. His statements regarding the June 7 phone call are also speculative and fail to articulate how the nurse's advice to proceed to an emergency room deviated from the appropriate standard of care in these circumstances.

Accordingly, it is hereby:

ORDERED that NYCHHC's motion (Seq. No. 1) for summary judgment in their favor is granted, and this action is dismissed in its entirety.

The Clerk shall enter judgment in favor of THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, also sued herein as KINGS COUNTY HOSPITAL CENTER.

This constitutes the decision and order of this Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.