Supreme Court, Kings County

Decided on April 29, 2026

Index No. 510081/2016

Consuelo Mallafre Melendez, J.

[*1]

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

NYSCEF #s: Seq 8: 133-144, 181, 197-203, 217

Seq 9: 159-180, 191-193, 204-214, 218-220

Seq 10: 182-190, 215-216, 221

Defendant Lenox Hill Hospital, sued herein as North Shore LIJ Lenox Hill Hospital, moves for an Order, pursuant to CPLR 3212, granting summary judgment in their favor (Seq. No. 8).

Defendants Gopi K. Punukollu, M.D. ("Dr. Punukollu") and New York Heart and Vascular Specialists, P.C.^FN1 ("NYHVS") separately move for an Order, pursuant to CPLR 3212, granting summary judgment and dismissing Plaintiff's claims against them (Seq. No. 9).

Defendant Wyckoff Heights Medical Center separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in their favor (Seq. No. 10).

Plaintiff opposes the motions of Lenox Hill Hospital, Dr. Punukollu, and NYHVS.

Plaintiff submits no opposition to the motion of Wyckoff Heights Medical Center. However, co-defendants Dr. Punukollu and NYHVS oppose the Wyckoff Heights motion.

Plaintiff commenced this action on June 14, 2016, asserting claims of medical malpractice, wrongful death, and lack of informed consent on behalf of the Decedent; Plaintiff also asserts a claim for loss of services. The claims arise from an angiogram performed by private cardiologist Dr. Punukollu at Lenox Hill Hospital on January 30, 2015. Within 24 hours of Decedent's discharge from Lenox Hill Hospital, she suffered an intracranial hemorrhage and was treated at Wyckoff Heights Medical Center until her death on February 6, 2015.

Decedent was 62 years old at the time of the events at issue. She had a history of coronary artery disease and hypertension, and she was treated by private cardiologist Dr. Punukollu since October 2009. She had undergone a prior angiogram procedure and stent placement on the left anterior descending artery, performed by Dr. Punukollu, at Beth Israel Medical Center in August 2012.

On January 28, 2015, Decedent visited her primary care provider with complaints of chest pain and underwent an EKG. On January 29, Dr. Punukollu examined Decedent, reviewed her abnormal EKG results, and assessed her with crescendo angina and ischemic changes suggesting interior wall involvement. Dr. Punukollu recommended an angiogram, and the procedure was scheduled for the following morning, January 30.

Decedent was admitted to Lenox Hill Hospital by Dr. Punukollu on January 30. She was evaluated by nonparty Jessica Vargas ("P.A. Vargas"), a hospital-employed physician's assistant, [*2]who placed an order for Aspirin and Plavix. Decedent signed a consent form for the procedure. P.A. Vargas testified that Decedent was given Aspirin and 600 mg Plavix in accordance with the hospital's "standard protocol and practice" prior to a cardiac angiogram.

Dr. Punukollu performed the angiogram from 10:37 a.m. to 11:12 a.m. During the procedure, he administered 5000 units of Heparin, then an additional bolus of 2000-2500 units. The angiogram revealed non-obstructive coronary artery disease. Dr. Punukollu determined she did not require stent placement, and her existing stent was intact. He diagnosed her with coronary artery spasm and prescribed Imdur, a nitrate medication. She was advised to call 911 if she had chest pain, shortness of breath, or bleeding at the angiogram site.

Decedent was discharged from Lenox Hill Hospital on January 30 between 2:00 p.m. and 3:00 p.m., with instructions to return to the emergency room if she had bleeding, severe migraine, dizziness, or vomiting.

According to the family's testimony and the medical records, Decedent began experiencing a headache, dizziness, nausea, and vomiting around 2:00 a.m. that night. She was transported to Wyckoff Heights Medical Center by ambulance and arrived at 6:47 a.m. on January 31. As her mental status worsened, she was ultimately diagnosed with a large cerebellar hematoma and was taken to the operating room at 4:16 p.m. Despite surgery to drain the hematoma, her status did not improve, and she developed new intracranial bleeding on February 1. She was later declared brain dead, removed from her ventilator, and passed away on February 6, 2015.

Plaintiff alleges that Dr. Punukollu departed from the standard of care in performance of the angiogram procedure, and specifically by administering an anti-platelet medication (Plavix) before the procedure and anti-coagulant medication (Heparin) during the procedure. Plaintiff also alleges that Decedent was discharged without adequate monitoring or diagnostic tests after the procedure.

Plaintiff's claims against Lenox Hill Hospital arise primarily from the use of Plavix, which was ordered by P.A. Vargas prior to the procedure. Plaintiff argues that the hospital bears vicarious liability for P.A. Vargas and/or direct liability for their alleged policies and procedures in administering Plavix. They also allege the hospital staff improperly monitored and discharged Decedent.

Plaintiff also asserts claims against Wyckoff Heights Medical Center related to diagnosis and treatment of the cerebellar hemorrhage.

As an initial matter, the Court must address whether the improper use of Plavix is a new claim asserted "for the first time in opposition to the motion" and not set forth in the Bill of Particulars, as argued by Dr. Punukollu and NYHVS in reply ^FN2. Plaintiff's Bill of Particulars contains a specific claim for "the improper administration of Heparin," but there are also claims of negligence involving the angiogram procedure and managing the clotting factors of Decedent, which is comprehensive of the claims regarding Plavix. Further, the use of Plavix was discussed extensively during the parties' depositions, and the expert affirmations from Dr. Punukollu/NYHVS and Lenox Hill Hospital directly addressed this issue and offered opinions on the use and dosage of Plavix. Accordingly, the Court finds this is not a new claim improperly [*3]raised by Plaintiff for the first time in opposition to this motion, and it does not prejudice the moving defendants to consider this claim.

Additionally, the Lenox Hill Hospital and NYHVS movants argue to dismiss any claims of "negligent hiring, retention, and supervision" against them. As Plaintiff acknowledges in their opposition, there is no cause of action for negligent hiring, retention, or supervision asserted in the Complaint. Therefore, those claims are not part of this action and need not be addressed in this motion.

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 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]).

First, in support of Dr. Punukollu and NYHVS's motion (Seq. No. 9), the movants submit an expert affirmation from Louai Razzouk, M.D. ("Dr. Razzouk"), a licensed physician board certified in interventional cardiology, vascular interpretation, cardiovascular disease, nuclear cardiology, echocardiology, and internal medicine.

Dr. Razzouk opines that Dr. Punukollu complied with the standard of care at all times in Decedent's treatment, including the angiogram and post-operative care on January 30, 2015.

The expert opines that on a prior occasion on August 22, 2012, Dr. Punukollu appropriately performed an angiogram and stent placement on the left anterior descending artery. The expert states that during the 2012 procedure, Decedent received 600 mg of Plavix to block platelets and 4000 units of Heparin, a blood thinner. The expert opines that Dr. Punukollu acted within the standard of care in the August 2012 procedure, as well as his follow-up treatment of Decedent from 2013-2014.

The movants' expert opines that on January 29, 2015, Dr. Punukollu appropriately recommended an angiogram as soon as possible, in light of Decedent's angina symptoms, abnormal EKG, and history of obstructive coronary artery disease.

The expert opines in detail that Dr. Punukollu's performance of the January 30 angiogram complied with the standard of care. Specifically, the expert opines that it was wholly appropriate for Decedent to be given 600 mg Plavix at 9:38 a.m., as well as 325 mg of Aspirin and 40 mg of Protonix (to counteract heartburn from Aspirin). The expert opines that it is the "routine" standard of care to administer Plavix and Aspirin before any cardiac catheterization to reduce the likelihood of blood clots.

Dr. Razzouk opines that the standard Plavix dose is 600 mg orally before the procedure, unless the patient is already taking Plavix. The expert opines that any patient who "may need to receive a coronary stent" should be given Plavix and Aspirin prior to catheterization. He opines that although these medications carry an "increased risk of bleeding before, during, and after catheterizations," it is still appropriate to mitigate the risk of blood clots in the event a coronary stent is necessary. Thus, he opines that the administration of these anti-platelet medications one hour before the procedure complied with the standard of care.

The expert acknowledges that Decedent had a spike of elevated blood pressure of 179/70 at approximately 10:32 a.m., shortly before she was taken to the operating room. The expert agrees with Dr. Punukollu's testimony that this reading was likely due to her pre-procedure anxiety, and "no additional treatment was needed" for hypertension once the procedure began, because her blood pressure normalized when she was given Versed and Fentanyl for sedation. The expert further opines that Decedent's blood pressure remained within normal limits throughout the procedure, indicating that her blood pressure was "properly treated and monitored throughout."

The expert further opines that it was within the standard of care for Dr. Punukollu to administer an initial dose of 5000 units of Heparin blood thinner during the procedure. For a patient of Decedent's weight, the expert opines that 4270-6100 units is an appropriate initial dose of Heparin.

The expert opines that during cardiac catheterization, the standard of care is to monitor the Activated Clotting Time (ACT) of the patient, and the target range is greater than 250 seconds. Dr. Razzouk opines that additional Heparin is typically administered if the ACT falls below the target. He opines that in this case, Decedent's ACT was 227 at 11:03 a.m., and another Heparin bolus of 2000-2500 units was appropriate to prevent arterial thrombus. The expert opines that the combined 7000-7500 units of Heparin during the procedure did not deviate from the standard of care, and this is an appropriate dosage "to ensure optimal ACT and prevent clotting."

The expert states that Dr. Punukollu was present for Decedent's 11:45 a.m. examination, and he and the physician's assistant both gave her discharge instructions. The expert opines that because there were no complications in the procedure and her vital signs were stable, the plan to discharge her once she was able to ambulate was within the standard of care. The expert also opines that she was appropriately monitored by nurses every 15 minutes to check her vital signs, ask if she had any complaints, and assess if there was bleeding at the access site. Other than receiving 650 mg of Tylenol at 1:00 p.m., which the expert opines is "very commonly administered" for comfort following cardiac catheterization, he opines that no further interventions were needed before she was discharged, and there is no record off

The expert opines that based on the record and the testimony of Decedent's son, Decedent remained at the hospital for over two hours after the procedure, and she had no complaints of headache or other symptoms of an intracranial bleed before her discharge. The expert opines that she received longer observation than required by the standard of care, there were no signs warranting her admission to the hospital for further monitoring or testing, and she was appropriately discharged with instructions to call 911 or go to the nearest emergency room if she experienced migraine, dizziness, or vomiting.

On the issue of proximate causation, the expert opines that Aspirin and Plavix "can last in a patient's system for a few days," and therefore there is an "increased risk of bleeding before, [*4]during, and after catheterization." However, he opines this is a "known risk" of the procedure and its necessary medications, which may occur even when the standard of care is followed in administering Aspirin and Plavix.

The expert also opines that based on the 1.5-hour half-life of Heparin, it would have taken approximately 6 hours to be fully eliminated from Decedent's blood stream. Therefore, the expert opines that by 5:00 p.m. on January 30, Decedent was no longer affected by her last dose of Heparin, and it did not cause her hemorrhage during the night. The expert opines that if her intracranial bleed had begun before the Heparin left her system, she would have experienced earlier symptoms such as "nausea, vomiting, [or] headache," before she left the hospital, went home, and went to sleep for the evening. Instead, those symptoms began at 2:00 a.m. The expert opines that the Heparin was no longer in her system at the onset of her brain bleed, and therefore it was not a proximate cause or substantial contributing factor to her injuries.

Additionally, Dr. Razzouk opines that no alleged failure to monitor or diagnose her condition was a proximate cause of Decedent's injuries or death, because she exhibited no signs of a bleed or any other complications until hours after she left the hospital. Therefore, the expert opines it could not be detected or diagnosed at the time she was being treated by Dr. Punukollu or Lenox Hill Hospital. The expert also states that due to Decedent's own delays in seeking treatment and consenting to receiving a CT scan at co-defendant Wyckoff Heights Medical Center, "it was over 12 hours from the onset of symptoms" when she was ultimately taken to the operating room. The expert opines that this delay in diagnosis and treatment, not any alleged departures from the standard of care by Dr. Punukollu, was the cause of her poor prognosis and death.

Based on evaluation of these submissions, Dr. Punukollu has established prima facie entitlement to summary judgment. The expert sets forth detailed opinions that the physician complied with the standard of care, including in his performance of the procedure and the administration and dosage of Plavix and Heparin. The expert further opines that Decedent was sufficiently monitored post-procedure, she was in stable condition with no signs of complications, and the standard of care did not require her to remain at the hospital for further observation.

The expert also establishes that no alleged deviations from the standard of care by Dr. Punukollu proximately caused Decedent's injuries, including brain hemorrhage and death. He renders an opinion that an increased risk of bleeding (including intracranial) is a known risk and complication of Plavix and Aspirin during an angiogram/cardiac catheterization, even when those medications are correctly administered. The expert also establishes that the use of Heparin blood thinner did not proximately cause Decedent's hemorrhage or death, as he opines that the onset of the brain bleed occurred over 6 hours after the angiogram when Heparin had already left her system. Further, the expert establishes that no failure in monitoring or delayed diagnosis by Dr. Punukollu was a proximate cause of Decedent's injuries, as the bleed did not manifest until approximately 2:00 a.m. after she left the hospital. As the movants have met their prima facie burden, Plaintiff must raise an issue of fact as to whether Dr. Punukollu's treatment departed from the standard of care and proximately caused Decedent's brain bleed, worsened prognosis, and death.

In opposition, Plaintiff submits an expert affirmation from a licensed physician, [name of expert redacted], board certified in internal medicine and cardiovascular disease. The Court has been presented with a signed, unredacted copy of the affirmation for in camera inspection. The [*5]Court finds, contrary to the movants' argument in reply, that this expert has laid a proper foundation to opine on the issues of this case, including prescribing and administering anti-platelet and anti-coagulation medications to patients in Decedent's circumstances.

The expert opines that Dr. Punukollu was responsible for the administration of Plavix prior to the angiogram, along with P.A. Vargas who ordered the medication. The expert opines that as the physician directing and supervising her care, Dr. Punukollu "should have recognized the mistake" of giving Plavix before commencing the procedure. Plaintiff's expert counters the opinion of Dr. Punukollu's expert that administering 600 mg of Plavix complied with the standard of care. On whether it is appropriate to administer anti-platelet medications before an angiogram, Plaintiff's expert also opines that this is "true for Aspirin, which Mrs. Perez was taking, [but] it is not true for the addition of Plavix." The expert states that in light of Decedent's "history of hypertension" and the fact her blood pressure was elevated on the date of the procedure, her medications should have been individually tailored. The expert also opines that Plavix should be given only if the angiogram confirmed that a stent was needed, and the medication otherwise carries an unjustified risk of hemorrhage. The expert opines that the procedure performed by Dr. Punukollu was diagnostic and he ultimately did not need to place a stent, and therefore, the administration of Plavix was premature and a departure from the standard of care.

The expert also opines that Dr. Punukollu departed from the standard of care by administering two doses of blood thinner Heparin during the procedure. The expert states that the standard of care "requires a physician to consider a number of factors, including the condition it will treat, the risk factors, and other medications the patient is taking" when prescribing a medication. The expert opines that Heparin increases the risk of intracranial bleeding, especially when the patient has high blood pressure, and that administering two doses of the medication despite the fact she did not require a stent constituted a departure from the standard of care.

Additionally, the expert opines that Decedent's symptoms on January 29-30 should have been reevaluated without prompting an angiogram. While the movant's expert opines that an angiogram was necessary based on her symptoms and EKG, Plaintiff's expert states that Decedent's condition "should have and could have been medically managed," and that the procedure was proven to be unnecessary because she did not require a stent. The expert opines that on a prior occasion in March 2014, Dr. Punukollu recommended an angiogram which was "not needed," and Decedent declined the procedure at that time. Plaintiff's expert states that he disagrees with the opinion of the movants' expert that Dr. Punukollu "properly recommended a coronary angiogram as soon as possible" on January 29, 2015, stating that "there was no reason to insist the patient go emergently to the hospital for an angiogram that day."

Lastly, Plaintiff's expert disagrees with the movants' experts that Decedent was appropriately discharged without further testing after the January 30 procedure. The expert opines that given her risk of bleeding, she was "not monitored appropriately," and it is impossible to say whether she was "neurologically intact" because no neurological examination was documented.

On proximate causation, Plaintiff's expert opines that the use of Plavix before the procedure and Heparin during the procedure proximately caused or contributed to Decedent's brain bleed. Regarding Plavix, the expert opines that this medication remained in her system and "placed her at an increased risk" of developing a brain hemorrhage, as she sustained later that [*6]evening.

Plaintiff's expert counters the opinion of the movants' expert that the Heparin "was out of her system and did not contribute to her brain hemorrhage" by the early morning of January 31 due to its short half-life. In the opinion of Plaintiff's expert, the bleed most likely began while she was still at Lenox Hill Hospital, but it was asymptomatic and undetected. The expert opines that as an anti-coagulant, Heparin "more likely than not contributed to her brain bleed" even if it was no longer active by the time she began experiencing symptoms. The expert opines that the bleeding process can increase and accumulate over time, and the patient may not exbibit symptoms for 12-24 hours.

Upon evaluation of the parties' submissions, the Court finds that Plaintiff has not raised any issues of fact on Dr. Punukollu's treatment prior to the January 2015 angiogram. Furthermore, Plaintiff has not raised a triable issue of fact that the necessity of the performance of the 2015 angiogram was a departure from the standard of care. The expert suggests in their affirmation that an angiogram was "not needed" and the patient's condition could have been medically managed. However, the expert states within the same sentence that "there was no reason to insist the patient go emergently to the hospital for an angiogram that day [January 29], and it was appropriate for the patient to request an appointment the following day to undergo this test" (emphasis added). The expert never opines that the procedure itself was contraindicated or constituted a deviation from the standard of care, and their opinion that a stent was not required is based on hindsight reasoning.

The Court also finds that Plaintiff's expert opinions on the post-procedure monitoring of Decedent are conclusory, speculative, and fail to raise a genuine issue of fact. The expert fails to address the opinions of the movants' expert as to her 15-minute nursing checks for a period of over two hours, nor her lack of any symptoms of an intracranial bleed until 2:00 a.m. that night. Plaintiff's expert opines in a broad and conclusory manner that Decedent was inadequately monitored, but the expert does not articulate the appropriate time period for observation before discharge following an angiogram procedure, nor does the expert offer any opinions in detail as to what further radiological or diagnostic tests were required by the standard of care.

Notwithstanding, Plaintiff's expert sufficiently raised an issue of fact as to the administration of Plavix and Heparin, in light of the patient's risk factors and elevated blood pressure. Although the Court finds the expert's statements that Decedent did not require a stent are based on hindsight, Plaintiff has raised issues of fact that the medications should not have been administered in the manner and amount they were given before and during the procedure, before the need for a stent was confirmed.

The experts have also proffered conflicting opinions as to whether the use of Plavix and Heparin proximately caused or substantially contributed to Decedent's brain bleed and her resulting injuries and death. Plaintiff's expert counters the movant's expert opinion that bleeding was a "known risk" of the procedure, opining that the use of Plavix increased her risk as a patient with high blood pressure. Further, while the movants' expert opined that the timing of Decedent's symptoms indicated Heparin was not a factor in the intracranial hemorrhage, Plaintiff's expert raised an issue of fact that the Heparin may have contributed to the bleed in the hours before her symptoms emerged. For these reasons, Dr. Punukollu's motion for summary judgment is denied as to the claims arising from the use of Plavix and Heparin.

Plaintiff has asserted additional claims that Dr. Punukollu is vicariously liable "for the negligence of staff under his control during performance of an angiogram." The only specific [*7]claim asserted against any staff member is that P.A. Vargas independently administered Plavix. As discussed further below, Plaintiff alleges P.A. Vargas exercised independent medical judgment in ordering Plavix, rather than simply following the directives of Dr. Punukollu. P.A. Vargas testified that she was carrying out the hospital's "protocol" of giving Aspirin and 600 mg Plavix to all patients one hour before they undergo an angiogram.

Generally, an attending physician is not vicariously liable for hospital staff in the absence of an employer/employee relationship, unless "the act giving rise to the injury is one requiring close supervision and instruction" (see Banks v Barkoukis, 231 AD2d 598, 599 [2d Dept 1996]; see also LoPiano v Mindich, 237 AD2d 415, 416 [2d Dept 1997]; Striano v Deepdale Gen. Hosp., 54 AD2d 730, 730 [2d Dept 1976]).

It is not disputed here that P.A. Vargas was an employee of co-defendant Lenox Hill Hospital, not Dr. Punukollu or his professional corporation, NYHVS. There is therefore no basis for Plaintiff's claim that Dr. Punukollu or NYHVS are vicariously liable for P.A. Vargas based on a respondeat superior employment relationship.

As for the "close supervision and instruction" element, this Court finds it is not applicable to claims against P.A. Vargas for ordering the pre-procedure Plavix and Aspirin. To the extent P.A. Vargas ordered the Plavix medication either independently or in accordance with hospital protocols, Dr. Punukollu cannot be held vicariously liable for her alleged malpractice, as this alleged act was not one requiring close supervision for a physician's assistant. Accordingly, the Court finds the vicarious liability claims against Dr. Punukollu for any independent acts and omissions of P.A. Vargas must also be dismissed as a matter of law.

Turning to the separate cause of action for informed consent, Dr. Punukollu's expert opines that foreseeable risks and alternatives to the cardiac catheterization procedure were disclosed to Decedent before signing a detailed surgical consent form. "A defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks" (Pirri-Logan v Pearl, 192 AD3d 1149 [2d Dept 2021] [internal citations omitted]).

In opposition, Plaintiff's expert acknowledged that according to the procedure records, the patient was advised of various foreseeable risks including "allergic reaction, bleeding with possible need for blood transfusion, infection, renal and vascular compromise, line damage, arrhythmia, stroke, vessel dissection, myocardial infarction, and potential for an emergent coronary artery bypass surgery" (emphasis added). However, the expert opines that informed consent was not obtained because there was no specific "mention of a potential brain hemorrhage" in association with the medications administered before and during the procedure.

The Court finds Plaintiff has not raised a triable issue of fact on the issue of informed consent. The hospital records indicate that risks including hemorrhagic stroke and bleeding were disclosed to the patient. This is also supported by the testimony of P.A. Vargas that cerebellar hemorrhage and death were included in the possible risks of the procedure. The movants have further established that Decedent was fully informed of her alternatives, noting that she had undergone a previous cardiac catheterization and stent placement with associated medications in 2012, and on prior occasions she had declined an angiogram. As Plaintiff has not raised a triable issue of fact on this issue, the informed consent claim is dismissed.

Finally, regarding the wrongful death cause of action, Plaintiff argues in opposition that the movants "failed to address all claims in the Complaint, including plaintiff's claim for wrongful death." They state in their memorandum of law that the moving papers did not [*8]"specifically address" the elements of wrongful death and therefore failed to make a prima facie showing of entitlement to summary judgment on that cause of action.

There are four essential elements "necessary to plead a cause of action for wrongful death" pursuant to EPTL § 5-4.1 (Proano v Gutman, 211 AD3d 978, 982 [2d Dept 2022]). These elements are "(1) the death of a human being, (2) the wrongful act, neglect or default of the defendant by which the decedent's death was caused, (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent, and (4) the appointment of a personal representative of the decedent" (i.d., quoting Chong v New York City Tr. Auth., 83 AD2d 546, 547 [2d Dept 1981]). In this case, there is no dispute that the Decedent has died, an administrator has been appointed to represent the estate, and the pecuniary loss of the distributees is an issue pertaining to damages for Plaintiff to prove and the jury to resolve at trial. The element in dispute is the underlying "wrongful act, neglect or default of the defendant by which the decedent's death was caused."

The Court disagrees with Plaintiff's argument that, in essence, the movants addressed only the medical malpractice claim and not the separate "wrongful death" cause of action. As a personal injury claim, medical malpractice may survive an injured party's death to be asserted on their behalf (see EPTL § 11-3.2 [b]). Additionally, the wrongful death cause of action belongs "to a decedent's distributees rather than the estate standing in place of the decedent" (Heslin v County of Greene, 14 NY3d 67, 75 [2010]). While these causes of action involve different recoverable damages on behalf of the Decedent and their distributees, medical malpractice is still the underlying theory of liability on which the wrongful death claim is based (see Perez v Baez, 185 AD3d 1062, 1063-1064 [2d Dept 2020]; Scanzano v Horowitz, 49 AD3d 855, 856 [2d Dept 2008]). Thus, Plaintiff's argument that Defendant failed to address the claim for wrongful death is rejected.

As decided herein, Plaintiff has raised issues of fact on the alleged medical malpractice underlying the wrongful death claim. This alleged malpractice also underlies Plaintiff's derivative claim for loss of services. Accordingly, the motion from Dr. Punukollu and NYHVS is denied as to the medical malpractice claims arising from the use of Plavix and Heparin, which form the basis of Plaintiff's pain and suffering, wrongful death, and loss of services claims. The motion is granted to the extent of dismissing any claims related to Dr. Punukollu's treatment prior to January 30, 2015, the necessity of the performance of the angiogram, post-procedure monitoring, informed consent, and Dr. Punukollu and NYHVS's vicarious liability for the acts and omissions of P.A. Vargas or other staff.

Turning to the motion of Lenox Hill Hospital (Seq. No. 8), Plaintiff argues in opposition that this motion is procedurally defective for failing to include copies of the pleadings, "complete medical records," and certified deposition testimony in admissible form.

The Court notes that the Complaint was available within the NYSCEF record, the Bill of Particulars for all defendants was attached to the motion of Dr. Punukollu and NYHVS, the medical records at issue related to Decedent's treatment at another facility in 2012, and the deposition testimony of P.A. Vargas contained her signed Corrections Sheet and was relied on by both sides. As such, the Court shall disregard these alleged procedural defects as non-prejudicial in considering the substance of the motion.

Lenox Hill Hospital submits an expert affirmation from James Slater, M.D. ("Dr. Slater"), a licensed physician board certified in internal medicine, cardiovascular disease, and interventional cardiology. Dr. Slater opines that the January 30 angiogram was indicated by the [*9]patient's cardiac complaints, "objective changes on her EKG," and a prior history of known blockages and stents. The expert opines that an angiogram is the "next step in the evaluation and potential treatment of symptoms" under these circumstances.

Dr. Slater then opines that patients undergoing an angiogram are generally given anti-platelet medications one hour prior to the procedure. The expert opines that both P.A. Vargas and the private attending physician, Dr. Punukollu, appropriately reviewed Decedent's blood test results, and she had no contraindications for the dual anti-platelet medications or any reason to adjust the standard dosage.

The expert acknowledges that according to the medical record, Lenox Hill Hospital employee P.A. Vargas entered the order for 600 mg Plavix, and she testified in detail that this was the "standard protocol" of the hospital. Dr. Slater opines that this medication and dosage complied with the standard of care. Specifically, the expert opines that Aspirin and "a 600 mg oral loading dose of Plavix" are generally given one hour before cardiac catheterization, unless the patient was already taking Plavix. The expert explains that because dual anti-platelet medication is necessary before a stenting procedure can be performed, it would be nonsensical to begin the angiogram and then "have the patient wait for over an hour on the cath lab table" in the event a stent is needed. The expert therefore opines that P.A. Vargas's administration of Plavix complied with the standard of care.

With respect to other Lenox Hill Hospital staff, Dr. Slater opines that during the procedure, their employees appropriately assisted Dr. Punukollu, followed his directives, and documented the "steps and timeline" of the procedure. The expert opines that the procedure was properly performed by Dr. Punukollu, including the administration of Heparin, and none of his acts and omissions deviated from the standard of care in a way that would "give the Lenox Hill Hospital staff pause."

Following the procedure, Dr. Slater opines that Decedent was appropriately monitored by the Lenox Hill Hospital staff. He opines that every 15 minutes, her blood pressure, heart rate, oxygen saturation, pain levels, and other vital signs were checked and documented by nurses. He opines that is "no indication" in the record that she had nausea or headache in the hours between the angiogram and her discharge. He opines that she was properly discharged with instructions, and the standard of care did not require any further diagnostic tests or observation.

The expert further opines that any post-operative "coagulation studies" were not necessary, because the Heparin was largely out of her system by 2:00 p.m., and although the Plavix would be expected to "remain in the patient's system . . . for a few days," it would only show a "mild degree of anticoagulation." The expert notes that after Decedent's stent procedure in 2012, she had remained on Aspirin and Plavix for a year with no complications. The expert opines that it was not a departure from the standard of care for Lenox Hill Hospital to discharge her without additional tests or a hematology consultation.

On proximate causation, the expert expresses a similar opinion to Dr. Punukollu's expert, stating that Decedent did not complain of a headache, dizziness, and vomiting until 2:00 a.m., hours after her discharge. The expert opines that although Plavix remained in her system, there was "no possibility" the Heparin caused her brain bleed, or she would have experienced "severe headache complaints" earlier in the afternoon. The expert opines that her bleed was more likely caused by "accelerated hypertension." The expert also opines that her "extensive brain bleed" leading to her death was worsened by the delay in consenting to a head CT scan at Wyckoff Heights Medical Center, not proximately caused by any departure from the standard of care at [*10]Lenox Hill Hospital.

Based on these submissions, the Lenox Hill Hospital movant has established prima facie entitlement to summary judgment. Generally, a hospital's residents, physician's assistants, and nursing staff are not liable for alleged malpractice in assisting a private attending physician. "When supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene" (Bellafiore v Ricotta, 83 AD3d 632, 633 [2d Dept 2011]; Soto v Andaz, 8 AD3d 470, 471 [2d Dept 2004] [emphasis added]).

Here, Plaintiff asserts specific claims that Lenox Hill Hospital is liable for the pre-procedure administration of 600 mg Plavix. This medication was ordered and given to Decedent by employee P.A. Vargas, and she testified that she was following a hospital policy. With respect to those claims, the movant's expert offered opinions that this medication and dosage were appropriate, and that it was the standard of care to provide Plavix prior to any cardiac catheterization and potential stent placement.

In reference to Plaintiff's claims against physician's assistants, nurses, or staff other than P.A. Vargas, they were acting under the direction and supervision of private physician Dr. Punukollu, not exercising independent medical judgment. The movant's expert established that Dr. Punukollu's angiogram procedure and administration of two doses of Heparin did not "so greatly deviate" from normal practice that the Lenox Hill Hospital staff were obligated to intervene.

Additionally, the Court finds the Lenox Hill Hospital movants have established prima facie entitlement to summary judgment regarding Decedent's post-operative care, monitoring, and discharge. The expert sets forth that Decedent had no signs or symptoms in the hours after the angiogram, she was examined and monitored within the standard of care post-procedure, and no additional tests or admission was warranted. The burden therefore shifts to Plaintiff to raise an issue of fact.

In opposition, Plaintiff submits the aforementioned expert affirmation from an internal medicine and cardiovascular expert, [name of expert redacted], which was presented in unredacted form to the Court for in camera inspection.

Plaintiff's expert opines that P.A. Vargas departed from the standard of care by ordering 600 mg of Plavix prior to Decedent's diagnostic angiogram on January 30. The expert opines that "medication orders must be individualized for each patient," and Plavix should not be administered unless "the need for a stent is confirmed." As Decedent had a "known history of hypertension" and she did not require a stent on January 30, the expert opines that Plavix "never should have been administered."

Plaintiff's expert addresses that according to P.A. Vargas, the order she placed for Plavix was a Lenox Hill Hospital policy. She testified that the administration of Plavix before an angiogram and potential stent placement was the "standard protocol and practice" of the hospital, and "all patients who are for cardiac angiogram are required to receive pre-procedure medication." She testified that the dosage would be altered if the patient was already taking the medication, but "everybody received Plavix" regardless of whether they ultimately required a stent placement. As noted by Plaintiff's expert, a written policy for "Adult Diagnostic Cardiac Catheterization" obtained from Lenox Hill Hospital did not expressly include a requirement for Plavix. The text of the policy said a nurse would administer "pre-medication as ordered by [*11]physician/LIP" [licensed independent practitioner].

The expert counters the opinions of the Lenox Hill Hospital expert that it was appropriate to give dual anti-platelet medications one hour before the procedure. While Plaintiff's expert does not dispute that it was appropriate for Decedent to have Aspirin, they opine that "the addition of Plavix" was unnecessary and contraindicated by her "history of hypertension and its presence on the date of the procedure."

Plaintiff's expert opines that the standard of care requires Plavix or a similar anti-platelet medication only if the need for stent is confirmed. The expert addresses the movant's statement that Plavix should be given an hour before any cardiac catheterization, because failing to do so would delay a potential stent placement. Plaintiff's expert counters this opinion and states that Plavix should not be "routinely" given for a diagnostic cardiac catheterization, as Decedent underwent, because in the event the patient requires a coronary artery bypass graft surgery, that surgery would need to be delayed due to the bleeding risk. Thus, the expert opines that it was a departure from the standard of care for P.A. Vargas to independently order Plavix, or for the hospital to have a "standing policy or standard order for administration of Plavix to all patients coming to the hospital for cardiac catheterization," regardless of the patient's risk factors or the likelihood they would require a stent.

The expert also opines generally that Decedent's "condition was not appropriately monitored or investigated" by the Lenox Hill Hospital staff before her discharge. However, as discussed in Dr. Punukollu's motion above, the expert does not offer further opinions on further diagnostic testing that was warranted in the absence of any symptoms.

Based on evaluation of these submissions, the Court finds that Plaintiff has raised an issue of fact as to the administration of Plavix prior to the procedure. It is established that by virtue of P.A. Vargas' employment, Lenox Hill Hospital is vicariously liable for her acts and omissions. Plaintiff has also shown that there are discrepancies between the hospital's written policies (which state that pre-procedure medication shall be given "as ordered by physician/LIP") and P.A. Vargas's testimony that she ordered the medication as part the hospital's pre-angiogram "protocol." Whether P.A. Vargas's order for Plavix was an independent exercise of medical judgment or she was carrying out a hospital protocol constitutes an issue of fact which must be resolved by a jury. As there are issues of fact and credibility regarding P.A. Vargas's alleged departures, summary judgment cannot be granted on that vicarious liability claim as a matter of law, nor the direct claim against Lenox Hill Hospital as to their alleged medication protocol.

Notwithstanding, Plaintiff has not raised a triable issue of fact as to the acts or omissions of any other nurses, physician's assistants, or staff. Other than the use of Plavix by P.A. Vargas, Plaintiff's expert does not opine that hospital employees exercised independent medical judgment or committed individual acts of negligence. Thus, the hospital bears no vicarious liability except as discussed above.

Plaintiff's expert is also conclusory on the claims involving Decedent's post-procedure treatment, monitoring, and discharge, and they fail to raise a triable issue of fact on these claims against Lenox Hill Hospital. Finally, for the reasons previously discussed in Dr. Punukollu's motion, Plaintiff's expert has not raised a triable issue of fact on the informed consent cause of action.

Accordingly, Lenox Hill Hospital's motion for summary judgment is denied as to the direct and vicarious liability claims of medical malpractice arising from P.A. Vargas's [*12]administration of Plavix only. On all other claims against Lenox Hill Hospital, summary judgment is granted.

Finally, turning to the motion of Wyckoff Heights Medical Center (Seq. No. 10), the movant submits an expert affirmation from Nathan Washburn, D.O. ("Dr. Washburn"), a licensed physician board certified in emergency medicine.

Dr. Washburn sets forth an expert opinion that all care rendered to Decedent upon her presentation at Wyckoff Heights Medical Center on January 31, 2015 was appropriate, timely, and complied with the standard of care. The Court finds the movant has sufficiently established prima facie entitlement to summary judgment.

Plaintiff does not oppose the motion of Wyckoff Heights Medical Center, and they do not raise any issue of fact that Wyckoff Heights Medical Center departed from the standard of care and proximately caused Decedent's worsened prognosis or death.

In their "partial opposition" to the motion, co-defendants Dr. Punukollu and NYHVS submit an expert affirmation from Stanley Tuhrim, M.D. Their expert states that he "will not comment on whether or not the treatment provided by co-defendant [Wyckoff Heights Medical Center] was within the standard of care." However, he contradictorily states, without detail, that there are "issues of material fact" as to whether there were delays in Decedent's diagnosis and treatment attributable to Wyckoff Heights Medical Center.

The co-defendants' submissions are insufficient to raise a genuine, triable issue of fact as to Wyckoff Heights Medical Center's liability in this action. The expert affirmation is wholly speculative and contradictory, and the expert fails to cite any evidence of departures from the standard of care by physicians or staff at Wyckoff Heights Medical Center. Accordingly, the motion of Wyckoff Heights Medical Center is granted in its entirety.

"Since summary judgment is the 'functional equivalent' of a trial, it follows that the limited liability benefits for defendants under CPLR article 16 are forfeited as to any codefendant who has been awarded summary judgment in its favor" (Angieri v Musso, 225 AD3d 43, 48-49 [2d Dept 2024], quoting Hendrickson v Philbor Motors, Inc., 102 AD3d 251 [2d Dept 2012]). As a matter of law, this Court has found Wyckoff Heights Medical Center has demonstrated entitlement to summary judgment on the merits, and the co-defendants' request to preserve their Article 16 rights is not applicable (see also Johnson v Peloro, 62 AD3d 955, 956-957 [2d Dept 2009]).

Accordingly, it is hereby:

ORDERED that the motion of Dr. Punukollu and NYHVS (Seq. No. 9) is granted to the extent of dismissing claims related to treatment prior to January 30, 2015, the necessity of the angiogram procedure, post-procedure monitoring and discharge, and vicarious liability for P.A. Vargas or other Lenox Hill Hospital staff, and the motion is otherwise denied; and it is further

ORDERED that the motion of Lenox Hill Hospital (Seq. No. 8) is granted to the extent of dismissing claims related to post-procedure monitoring and discharge, the claim for lack of informed consent, and any vicarious liability claims for staff other than P.A. Vargas, and the motion is denied as to the claims arising from the administration of Plavix only; and it is further

ORDERED that the summary judgment motion of Wyckoff Heights Medical Center (Seq. No. 10) is granted in its entirety; and it is further

ORDERED that the caption is amended to read:

JOHNNY PEREZ, as Administrator of the Estate of MYRNA
PEREZ, Deceased, and JOHNNY PEREZ, Individually,

Plaintiff,

against

GOPI K. PUNUKOLLU, M.D., NEW YORK HEART
AND VASCULAR SPECIALISTS, P.C. and NORTH SHORE LIJ
LENOX HILL HOSPITAL,

Defendants.

The Clerk shall enter judgment in favor of WYCKOFF HEIGHTS MEDICAL CENTER.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez, J.S.C.