Marcinkiewicz v Flushing Hosp. Med. Ctr.

Supreme Court, Kings County

Decided on February 26, 2026

Index No. 506120/2021

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 74-89; 115 by Def. Moradi

NYSCEF Doc #s 90-103; 116 by Def. Flushing

NYSCEF Doc #s 106-114 by Plaintiff

Upon the foregoing cited papers and after considering oral argument on October 14, 2025, pursuant to CPLR § 3212(b), the Court issues the following Decision and Order:

• The motion for summary judgment filed by Defendant Mark M. Moradi, M.D. (Motion Sequence # 3) is GRANTED and DENIED in part. The cause of action alleging lack of informed consent is dismissed with prejudice as abandoned. The remainder of Dr. Moradi's motion is granted, except with respect to his alleged acts and omissions during the period beginning at 2:25 p.m. on November 13, 2018 ^FN1 (the time of Plaintiff's post-anesthesia admission) and 11:26 a.m. on November 16, 2018 ^FN2 (when Plaintiff was transferred to the Surgical Intensive Care Unit ("SICU") and her care was assumed by non-moving Defendant, intensivist Martine Louis, M.D. (the "post-operative/pre-SICU period")).

• The motion for summary judgment jointly filed by Defendants Flushing Hospital Medical Center ("FHMC"), Hosam Hanna, M.D., and Mai Gandhi, D.O. (collectively the "Flushing Defendants") (Motion Sequence # 4) is likewise GRANTED and DENIED in part. The lack of informed consent claim is dismissed with prejudice as abandoned. The medical malpractice claims against Drs. Hanna and Gandhi are also dismissed with prejudice. Further, FHMC may not be held vicariously liable for the alleged acts and omissions of Dr. Moradi because Plaintiff entered FHMC as his private patient. The remainder of the Flushing Defendants' motion is denied.

BACKGROUND

This medical malpractice action arose from Plaintiff's allegation that Defendants failed to timely diagnose and treat post-operative sepsis following surgery performed on November 13, 2018.^FN3 After completion of discovery and the filing of the note of issue, Defendant Dr. Moradi [*2]and the Flushing Defendants moved for summary judgment.^FN4 After oral argument on October 14, 2025, the Court reserved decision.

For clarity, the Court delineates two distinct periods of Plaintiff's care:

1. Post-operative/Pre-SICU period: from Plaintiff's post-anesthesia admission at 2:25 p.m. on November 13, 2018 through her transfer to the SICU at 11:26 a.m. on November 16, 2018.

2. SICU Period: beginning with the transfer on November 16, 2018, during which Plaintiff's care and clinical decision-making were managed exclusively by intensivist Martine A. Louis, M.D.

STANDARD OF REVIEW

Summary judgment is a drastic remedy that should be granted only where no genuine issue of material fact exists. Kolivas v. Kirchoff, 14 AD3d 493, 493 (2d Dept. 2005). The Court's function on such a motion is issue-finding, not issue-resolution; it may not assess credibility or weigh evidence. Laris v. City of New York, 236 AD3d 637, 638 (2d Dept. 2025). Evidence must be viewed in the light most favorable to the non-moving party. Gambarian v. Spivakov, 241 AD3d 1529, 1529 (2d Dept. 2025).

The elements of medical malpractice are (1) a deviation from accepted medical practice; and (2) proof that such deviation was a proximate cause of injury. Danziger v. Mayer, 236 AD3d 755, 758 (2d Dept. 2025).

A defendant seeking summary judgment must establish, prima facie, either compliance with the standard of care or that any departure was not a proximate cause of the alleged injury. Attia v. Klebanov, 192 AD3d 650, 651 (2d Dept. 2021). Conclusory expert opinions that merely recount treatment and assert compliance, are insufficient. Marsh v. City of New York, 191 AD3d 973, 973-974 (2d Dept. 2021). If defendant fails to meet this burden, the motion must be denied, regardless of the sufficiency of the opposition. Martinez v. Orange Regional Med. Ctr., 203 AD3d 910, 912-913 (2d Dept. 2022).

If defendant meets this initial burden, plaintiff must then demonstrate triable issues of fact on the elements addressed by the defendant. Alao v. Richmond Univ. Med. Ctr., 213 AD3d 722, 723 (2d Dept. 2023). Conflicting expert opinions generally precludes summary judgment, as credibility determinations are for a jury. Feinberg v. Feit, 23 AD3d 517, 519 (2d Dept. 2005).

DISCUSSION

Defendant Mark M. Moradi, M.D. (Motion Sequence #3)

Lack of Informed Consent

Summary judgment as to Plaintiff's lack of informed consent claim against Defendant Dr. Moradi is granted as abandoned, as Plaintiff did not oppose this branch of the motion. See Gobind v. Nercessian, 227 AD3d 464, 465 (1st Dept. 2024); Clarke v. New York City Health & Hosps., 210 AD3d 631, 633 (2d Dept. 2022).

Medical Malpractice: Post-Operative/Pre-SICU Period

The branch of the motion seeking dismissal of the claims pursuant to CPLR § 3212(b), arising from Dr. Moradi's conduct during the post operative/pre SICU period is denied. The record, viewed in the light most favorable to Plaintiff, raises triable issues of fact as to whether Dr. Moradi failed to timely recognize and respond to escalating clinical indicators consistent with a bowel perforation, including:

1. significant post-operative abdominal pain noted the morning of November 14 (Post-op Day 1);^FN5

2. fluid retention, which Dr. Moradi misattributed to pulmonary edema (rather than to a bowel perforation) during rounds on November 14;^FN6

3. development of skin rash and swelling of the hands documented at 12:19 p.m. on November 14;^FN7

4. recurring episodes of severe hypotension (low blood pressure), including blood pressure readings of 89/50 at 11:53 p.m. on November 14, and 85/44 at 12:23 a.m. on November 15 with low oxygen saturation of 85%;^FN8 and

5. an urgent radiologist call at 8:24 a.m. on November 16 reporting increased upper-[*3]abdominal air on x-ray and recommending additional imaging to rule out intra-abdominal pathology.^FN9

Triable issues of fact also exist as to whether, regardless of the precise etiology or anatomical location of the bowel perforation,^FN10 Dr. Moradi's delay in diagnosis during this post-operative/pre-SICU period caused Plaintiff unnecessary pain and suffering and necessitated corrective surgery on November 23rd.^FN11See Maynard v Mount Sinai Doctors Brooklyn Hgts., — AD3d —, 2025 NY Slip Op 06854, *2 (2d Dept. 2025) ("The plaintiff's expert opined that regardless of the cause of the appendicitis, the delay in diagnosis allowed the inflammation and infection to progress, resulting in a prolonged hospitalization and the formation of adhesions, among other things, which complicated her subsequent...course of medical treatment.").^FN12

Plaintiff's theory that Dr. Moradi caused an intra-operative bowel perforation during the [*4]November 13th surgery is unsupported by the record and based on speculation.^FN13See Getselevich v. Ornstein, 219 AD3d 1493, 1495 (2d Dept. 2023) ("The plaintiff's expert affidavit relied upon facts that were not supported by the record and, thus, was speculative, conclusory, and insufficient to defeat [defendant's] motion for summary judgment."); Steinberg v. Lenox Hill Hosp., 148 AD3d 612, 612-613 (1st Dept. 2017) ("The [defense] expert opined [without contradiction from a qualified expert on plaintiff's side] that the objective evidence indicated that plaintiff's vision did not worsen post-[cardiac catheterization] but that even if it did, this was attributable not to the [cardiac catheterization] but to the advancement of plaintiff's preexisting glaucoma.").

Medical Malpractice: SICU Period

Dr. Moradi had no duty to Plaintiff during the SICU period. Plaintiff's argument that Dr. Moradi remained part of her treatment team following her transfer to the SICU ^FN14 is unavailing. A physician's duty of care to their patients is defined by the medical functions they undertake and upon which the patient relies. Chulla v. DiStefano, 242 AD2d 657, 658 (2d Dept. 1997), lv. dismissed 91 NY2d 921 (1998). Duty is a question of law for the courts to resolve and generally not an appropriate subject for expert opinion. McAlwee v. Westchester Health Assoc., PLLC, 163 AD3d 549, 551 (2d Dept. 2018).

It is undisputed that, once in the SICU, Dr. Louis exercised exclusive authority over Plaintiff's treatment ^FN15 and that Plaintiff's daughter relied on Dr. Louis (not Dr. Moradi) for clinical decision making.^FN16See Abruzzi v. Maller, 221 AD3d 753, 756 (2d Dept. 2023) (doctor [*5]did not assume a duty of care to diagnose and treat a particular condition and patient did not rely on doctor for such care.); Perez v. Edwards, 107 AD3d 565, 566 (1st Dept 2013), lv. denied 22 NY3d 862 (2014) (doctor entitled to rely on treatment rendered to decedent by specialists better equipped to handle decedent's condition).

Flushing Defendants

The Flushing Defendants' motion is likewise granted in part and denied in part.

The second cause of action for lack of informed consent is dismissed with prejudice as abandoned since Plaintiff did not oppose this branch of the motion.

The medical malpractice claims against Drs. Hanna and Gandhi are also dismissed with prejudice because both acted as residents under the supervision of attending physicians: Dr. Moradi for resident Dr. Hanna and Dr. Louis for resident Dr. Gandhi. Resident doctors who follow attending doctors' directives without exercising independent medical judgment cannot be held liable, absent orders so clearly contraindicated that intervention is required. Soto v. Andaz, 8 AD3d 470, 471 (2d Dept. 2004). Here, Drs. Hanna and Gandhi satisfied their respective initial burdens by relying on the deposition testimony which demonstrated that Dr. Hanna was under the direct supervision of Dr. Moradi, whereas Dr. Gandhi was under the direct supervision of Dr. Louis at the time each cared for Plaintiff; neither Dr. Moradi nor Dr. Louis so greatly deviated from normal practice that either of them should be held liable for failing to intervene.^FN17 Plaintiff failed to raise triable issues to the contrary. Nasima v. Dolen, 149 AD3d 759, 760-761 (2d Dept. 2017); Leavy v. Merriam, 133 AD3d 636, 638 (2d Dept. 2015).

It is well established that a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not its employee. Tsocanos v. Zaidman, 180 AD3d 841, 842 (2d Dept. 2020). "[W]hen hospital employees, such as resident physicians and nurses, have participated in the treatment of a patient, the hospital may not be held vicariously liable for resulting injuries where the hospital employees have merely carried out the private attending physician's orders." Dupree v. Westchester County Health Care Corp., 164 AD3d 1211, 1213 (2d Dept. 2018). However, these rules shielding a hospital from liability do not apply when (among other things): (1) the staff follows orders despite knowing 'that the doctor's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders; or (2) the hospital's employees have committed independent acts of negligence; or (3) the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital. Id.

FHMC cannot be held vicariously liable for the conduct of Dr. Moradi, a private attending physician, as none of the recognized exceptions apply here. Mirshah v. Obedian, 200 AD3d 868, 875 (2d Dept. 2021); Tsocanos, 180 AD3d 841, 841-842.

As to Dr. Louis, FHMC established prima facie that she was employed by a separate intensivist group (known as "TJH") and was paid by them.^FN18 Nevertheless, Plaintiff raised triable issues under a theory of apparent or ostensible agency because Plaintiff's medical chart did not distinguish between FHMC and TJH. Sampson v. Contillo, 55 AD3d 588, 591 (2d Dept. 2008). Although Plaintiff initially entered FHMC privately through Dr. Moradi, Dr. Louis took over Plaintiff's exclusive treatment after transfer to the SICU and, in effect, precluded Dr. Moradi and other outside attendings from overriding her "watchful waiting" course of treatment. Sessa v. Peconic Bay Med. Ctr., 200 AD3d 1085, 1090 (2d Dept. 2021); Weiszberger v. KCM Therapy, 189 AD3d 1121, 1123 (2d Dept. 2020); Sampson, 55 AD3d at 591; Aqui v Johnson, 86 Misc 3d 1221(A), 2025 NY Slip Op 50997(U), *5-6 (Sup Ct, Kings County 2025).^FN19

The Court considered the parties' remaining arguments, which are either moot or without merit. All relief not expressly granted herein are denied.

CONCLUSION:

Dr. Moradi's motion for summary judgment is granted except for Plaintiff's medical malpractice claim based on alleged acts and omissions during the post-operative/pre-SICU period, which shall proceed.

The Flushing Defendants' motion for summary judgment is granted to the extent of dismissing the second cause of action for lack of informed consent. The first cause of action for medical malpractice against Drs. Hanna and Gandhi, as well as any claim seeking to hold FHMC vicariously liable for the conduct of Dr. Moradi, are both dismissed. The motion is otherwise denied.

This constitutes the Decision and Order of the Court.

Date: February 26, 2026

Brooklyn, New York

Hon. Patria Frias-Colón, J.S.C.