Liedman v Long Is. Coll. Hosp.

Supreme Court, Kings County

Decided on June 3, 2026

Index No. 2454/2012

Consuelo Mallafre Melendez, J.

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

NYSCEF #s: Seq. 17: 100—106, 107—109, 110, 111

Seq. 18: 112—120, 137—138, 160—163, 181, 182

Seq. 19: 121—159, 164—167, 178—180

Seq. 20: 139—146, 168—171, 176

Seq. 21: 147—158, 172—175, 177

Defendant Anukware K. Ketosugbo ("Dr. Ketosugbo") moves for an Order, pursuant to CPLR 3212, granting summary judgment in his favor and dismissing Plaintiff's Complaint against him (Seq. No. 17). Plaintiff opposes the motion. Co-Defendants also submit opposition to the motion.

Third-Party Defendant Irina Cherepashinskaya Vaizman, M.D. ("Dr. Vaizman") separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in her favor (Seq. No. 18.). Plaintiff and Third-Party Plaintiffs oppose the motion.

Defendants/Third-Party Plaintiffs Dmitriy Bronfman, M.D. ("Dr. Bronfman"), Professional Gynecological Services, P.C. ("PGS"), and Bella Nisimova, P.A. ("P.A. Nisimova") separately move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing any claims and cross claims against them. They also move for "partial or conditional summary judgment" on their third-party claims against Dr. Vaizman. (Seq. No. 19.)

Defendant Matthew B. Hanson ("Dr. Hanson") separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in his favor and dismissing Plaintiff's claims against him (Seq. No. 20). Plaintiff opposes the motion.

Defendant Andrei E. Radianu ("Dr. Radianu") separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in his favor and dismissing all claims against him in this action (Seq. No. 21). Plaintiff opposes the motion.

Plaintiff commenced this action against multiple Defendants^FN1 on February 1, 2012, asserting claims of medical malpractice and lack of informed consent. She filed an Amended Complaint on July 17, 2012. Defendants/Third-Party Plaintiffs PGS commenced a third-party action asserting contribution and indemnification claims against Dr. Vaizman, the PGS employee who treated Plaintiff on January 5, 2011.

The Court notes that Plaintiff did not oppose the motions of defendants PGS, Dr. Bronfman, P.A. Nisimova, Dr. Hanson, or Dr. Radianu with respect to the informed consent claims, and the informed consent claims against them are therefore dismissed without opposition.

In brief, Plaintiff saw the ob/gyn providers at PGS for a medical abortion on December 10, 2010 and follow-up visits on January 5, 2011 and January 12, 2011. Her blood test results on January 12, 2011 indicated severe anemia with a hemoglobin level of 5.0 gm/dL. She alleges the PGS providers failed to timely and properly diagnose and treat her for heavy bleeding and [*2]infection following the pregnancy termination.

Plaintiff was ultimately referred to non-moving defendant Long Island College Hospital ("LICH") on January 18, 2011, where she was discovered to have fetal tissue remnants and underwent a blood transfusion and D&C. After the procedure, she was transferred to the Post-Anesthesia Care Unit and went into acute respiratory distress. Plaintiff alleges medical malpractice against multiple parties, including the moving defendants Dr. Radianu (anesthesiologist), Dr. Ketosugbo (thoracic surgeon), and Dr. Hanson (ENT attending physician) for their role in performing a tracheostomy tube placement in the evening/early morning of January 19, 2011.

"Medical malpractice actions require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation was a proximate cause of the plaintiff's injuries. On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries." (Graham-Guerrier v Tercel, 245 AD3d 898, 899-900 [2d Dept 2026] [internal quotation marks and citations omitted].)

"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" (Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024]). "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" (Graham-Guerrier at 900, quoting Stewart v N. Shore Univ. Hosp. at Syosset, 204 AD3d 858, 860 [2d Dept 2022]). "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]).

The Court will first address the motions dealing with Plaintiff's gynecological treatment, prior to her LICH admission on January 18, 2011. On December 10, 2010, Plaintiff presented to PGS to terminate her 7-week pregnancy. She was seen by P.A. Nisimova and Dr. Bronfman on that date, and she elected to receive a medical rather than surgical abortion with mifepristone and misoprostol/Cytotec. A follow-up appointment was scheduled in two weeks, but she did not return to the office until January 5, 2011.

On January 5, she was seen by Dr. Vaizman, another employee of PGS. She testified that she had experienced "lots and lots of heavy bleeding" after taking the pill, and that she reported "very, very heavy" bleeding at the January 5 appointment, although she did not recall the name of the provider she spoke to. In the PGS records, Dr. Vaizman noted that she denied heavy bleeding or dizziness, and she had no signs of active bleeding on examination. She performed a sonogram which appeared to show a 2 cm blood clot and no products of conception, and she administered a second dose of Cytotec.

On January 12, Plaintiff returned to PGS and was examined by P.A. Nisimova, whose note was co-signed by Dr. Bronfman. According to the records, she denied heavy bleeding at that time but reported heavy bleeding in the past and that she currently felt "slightly dizzy and lightheaded." Blood was drawn for a complete blood count (CBC). On January 13, her blood test [*3]revealed very low hemoglobin and red blood cell count. P.A. Nisimova spoke with Plaintiff on the phone on January 17 and advised her to go to an emergency room or come to the office the following day.

On January 18, she returned to PGS and spoke with P.A. Nisimova and Dr. Bronfman, who advised her to go to an emergency department with a referral reading "please admit pt for poss blood transfusion" and her CBC results. She presented to the emergency department at LICH the same day.

In support of their motion (Seq. No. 19), Dr. Bronfman, P.A. Nisimova, and PGS submit an expert affirmation from Monique De Four Jones, M.D. ("Dr. Jones"), a licensed physician board certified in obstetrics and gynecology.

Dr. Jones opines that all care and treatment rendered to Plaintiff by PGS and its employees, including Dr. Bronfman and P.A. Nisimova, complied with the standard of care. She opines that on each visit, Plaintiff's vital signs and history were appropriately evaluated, and a sonogram was appropriately performed.

On the January 5 visit with Dr. Vaizman, Dr. Jones states based on the medical record that Plaintiff "denied heavy bleeding" and made no other complaints. The expert also opines that she had no signs of bleeding or infection on examination, only "minimal brown discharge" (old blood), normal heart rate and blood pressure, and a visible blood clot in the sonogram. The expert opines that "based on the absence of any clinical symptoms of anemia or infection," it was within the standard of care for Dr. Vaizman to administer a second dose of Cytotec without ordering a CBC.

Dr. Jones opines that on the January 12 visit, Plaintiff's vital signs and vaginal examination were again normal with no sign of active bleeding. She opines that P.A. Nisimova appropriately prescribed iron and ordered a CBC on that date to rule out anemia, based on the patient's "first time" complaints of dizziness, lightheadedness, and past heavy bleeding.

The expert opines that after the patient's CBC results returned on January 13, "all appropriate attempts were made to contact the plaintiff," including "repeated calls" and a letter advising her to call the office. She opines that when P.A. Nisimova eventually reached Plaintiff on January 17 by telephone, she properly advised her to go to a hospital to treat her anemia, and when Plaintiff said she was feeling better, she told her to come in the following day. The expert opines that both P.A. Nisimova and Dr. Bronfman "made appropriate recommendations to the plaintiff that she immediately go to the ER for treatment and possible blood transfusion" when she returned to the office on January 18.

The PGS movants also incorporate the expert affirmation of Wendy Fried, M.D. ("Dr. Fried"), which was submitted in support of Third-Party Defendant Dr. Vaizman's separate motion for summary judgment. Dr. Fried affirms that she is a licensed physician, board certified in obstetrics and gynecology. To the extent that she opines on the alleged acts and omissions of Dr. Vaizman, PGS incorporates her opinions and seeks summary judgment on any vicarious liability claims against them on Dr. Vaizman's behalf.

Dr. Fried opines that the treatment and care of Dr. Vaizman on January 5, 2011 was within the standard of care. She relies on Dr. Vaizman's testimony, medical notes, and examination and states that Plaintiff had only "minimal spotting," no heavy bleeding, and stable vital signs. She opines that Dr. Vaizman appropriately performed a sonogram, saw evidence of "a visible blood clot but no retained products of conception," and prescribed Cytotec to expel the blood clot, which was within the standard of care. She further opines that a CBC was not [*4]warranted on that date to rule out anemia, based on her lack of symptoms and her physical examination.

Both experts opine generally that no alleged acts or omissions by the PGS employees were a proximate cause of Plaintiff's injuries.

Based on these submissions, the Court finds that the PGS movants have established prima facie entitlement to summary judgment as to Dr. Bronfman, P.A. Nisimova, and the vicarious liability claims on their behalf. The movants' expert affirmations set forth that all care and treatment provided by these defendants from December 10 through January 18 was within the standard of care.

With respect to the vicarious liability of PGS for Dr. Vaizman, the movant's submissions have also established prima facie that she did not deviate from the standard of care by prescribing a second dose of Cytotec and not ordering a CBC on January 5, based on the patient's physical examination and no evidence of active bleeding. The burden therefore shifts to Plaintiff to raise an issue of fact.

In opposition, Plaintiff submits an expert affirmation from a licensed physician (name of expert redacted), board certified in obstetrics and gynecology. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection.

Plaintiff's expert does not offer any opinion that PGS employees departed from the standard of care in Plaintiff's initial December 10, 2010 visit, her January 12 follow-up, or the phone call and return to the office on January 17-18. Their opinions focus on Dr. Vaizman's treatment on January 5, 2011, and the alleged delay in contacting Plaintiff after her January 13 CBC results.

The expert opines that on January 5, 2011, PGS employee Dr. Vaizman departed from the standard of care by failing to order a CBC to rule out anemia. The expert states that "the patient reported that she had been bleeding very heavily" at that visit, which according to the expert is supported by Plaintiff's testimony and her subsequent lab results and medical chart. The expert opines that Dr. Vaizman's documentation that she "denied heavy bleeding" on the January 5 visit is inconsistent with her "subsequent clinical course," namely the fact that she had critically low hemoglobin of 5.0 g/dL the following week and she reported at LIICH she had "bled heavily for 3 weeks" following her medical abortion. The expert opines that given her "persistent heavy bleeding," Dr. Vaizman departed from the standard of care by not obtaining her history and ordering a complete blood count to rule out anemia.

The expert further opines that the sonogram performed by Dr. Vaizman did not rule out retained products of conception. The expert opines that for a patient with "prolonged post-termination bleeding," the use of a grayscale ultrasound is insufficient and color Doppler imaging is necessary to identify retained fetal material in the uterus. The expert opines that Dr. Vaizman incorrectly diagnosed Plaintiff with a blood clot, which was later determined to be retained products of conception.

The expert opines that in the patient's circumstances, the standard of care required offering and recommending a D&C, rather than a second dose of misoprostol (Cytotec), because anemia and retained products of conception had not been ruled out. Thus, the expert opines that Dr. Vaizman's January 5, 2011 treatment and prescription of Cytotec constituted a departure from the standard of care.

On the claims against PGS employees Dr. Bronfman and P.A. Nisimova, the expert opines that they failed to timely notify the patient of her January 12, 2011 blood test results. The [*5]expert opines that her hemoglobin level of 5.0 g/dL was life-threatening and required immediate referral to a hospital emergency room for evaluation and blood transfusion. The expert acknowledges that the PGS records "reference purported attempts to contact the patient on January 13-15," but Plaintiff testified she was not contacted, and there is no "contemporaneous documentation" of multiple phone calls being made. The expert opines that in light of the "life-threatening laboratory result," the standard of care required the providers to leave a voicemail advising her that she needed urgent medical attention, and to escalate to "a welfare check or notifying appropriate local authorities" if she could not be reached.

The expert also opines that the January 13 letter sent to Plaintiff by regular mail did not adequately convey "the existence of a medical emergency." The letter, which was included in the PGS medical chart, did not include or reference her abnormal blood test results. It merely stated that they had tried to contact her "several times without any success" and advised her to "contact our office as soon as possible to schedule an appointment." The expert opines that even if this letter was sent, it did not appropriately notify Plaintiff of the results and the severity of her condition.

The expert opines that these departures from the standard of care proximately caused Plaintiff's delay in diagnosis of profound anemia and retained products of conception, which resulted in her blood loss and infection going untreated until January 18, 2011. The expert opines this delay led to her developing sepsis and acute respiratory distress syndrome (ARDS) following her D&C.

Plaintiff also submits an expert affirmation from a licensed physician (name of expert redacted), board certified in anesthesia. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection.

Although the anesthesiology expert primarily opines as to departures from the standard of care by the other movants, which will be discussed below, they also opine that the alleged departure of PGS providers including Dr. Bronfman, Dr. Vaizman, and P.A. Nisimova "were substantial factors in causing [Plaintiff's] anoxic brain injury."

Specifically, the anesthesiology expert opines that the alleged delay in treating Plaintiff's post-termination bleeding and intrauterine infection resulted in her development of ARDS. The expert states that her development of ARDS was most likely caused by "an adverse reaction to blood transfusions that were necessitated by her severe, prolonged anemia," and/or "sepsis and septic embolization" from her intrauterine infection. For these reasons, the expect opines that her development of ARDS, which necessitated her endotracheal intubation and tracheostomy, was "directly traceable" to the alleged departures of the ob/gyn defendants.

Based on evaluation of these submissions, the Court finds Plaintiff has raised triable issues of fact precluding summary judgment for Dr. Bronfman and P.A. Nisimova. To the extent that the movants established that the providers made "repeated calls" and attempted to contact Plaintiff in light of her critically low hemoglobin levels, Plaintiff raises issues of fact as to the sufficiency of these attempts. A handwritten note on her test results read "call pt stat," and other notes indicated PGS providers attempted to call her at least once on January 14 and January 15 with "no answer." However, Plaintiff testified that she received no calls during that time, and there is no evidence or testimony that they left voice messages. This presents an issue of fact and credibility as to the attempted contacts which must be resolved by the jury. Further, even if attempts to contact Plaintiff were made by letter and telephone, Plaintiff's expert has offered an opinion that the letter and lack of messages did not convey the "life threatening" nature of her [*6]condition and the recommendation to go to an emergency room until January 17. For these reasons, the Court finds that issues of fact remain as to whether P.A. Nisimova and Dr. Bronfman departed from the standard of care in their alleged delay to contact the patient and refer her to an emergency room after her CBC results.

With respect to Dr. Vaizman and the vicarious liability claims against PGS on her behalf, Plaintiff's expert has also raised issues of fact. The Court notes that whether Plaintiff reported symptoms of "heavy bleeding" to Dr. Vaizman is a disputed fact, as she testified that she did complain of bleeding during her January 5 office visit, contrary to Dr. Vaizman's contemporaneous records. Plaintiff's expert counters the movants' expert that a CBC was not required on that date. While the movants argue in reply that this opinion is based in "hindsight" reasoning, the Court finds that Plaintiff's subsequent results are merely used to support the expert's opinion that Plaintiff was more likely than not experiencing symptoms of heavy bleeding on that date which were not appreciated or documented by Dr. Vaizman. The expert also offered conflicting opinions as to the administration of Cytotec, as the expert opined anemia and products of conception were not ruled out by the sonogram. For these reasons, the Court finds Plaintiff's expert has sufficiently raised issues of fact as to Dr. Vaizman's alleged deviations from the standard of care, and therefore the part of PGS's motion seeking summary judgment with respect to their vicarious liability for Dr. Vaizman must be denied.

Additionally, Plaintiff's ob/gyn and anesthesiology expert have offered opinions on proximate causation. Although the movants did not address these issues in detail in their moving papers, Plaintiff has nonetheless raised issues of fact as to whether the alleged departures from the PGS employees led to a delayed diagnosis of anemia and infection, which in turn caused and contributed to Plaintiff's other injuries.

For these reasons, the motion of Dr. Bronfman and P.A. Nisimova for summary judgment and dismissal of Plaintiff's medical malpractice claims against them are denied. The motion of PGS is also denied as to their vicarious liability for Dr. Bronfman, P.A. Nisimova, and Dr. Vaizman.

In their notice of motion and supporting papers, Defendants/Third-Party Plaintiffs also seek "partial or conditional summary judgment" in their favor on their third-party claims against Dr. Vaizman. That relief is premature at this time. Once a judgment or verdict is entered, "the vicariously liable employer, upon whom liability has been imposed without fault, may then seek indemnification, or reimbursement, from the primarily liable employee" (Ott v Barash, 109 AD2d 254, 261 [2d Dept 1985] [emphasis added]). The movants concede that there are issues of fact as to Dr. Vaizman's primary liability. The Court therefore declines to issue a conditional decision and order on the indemnification claim (see Langner v Primary Home Care Services, Inc., 83 AD3d 1007, 1010 [2d Dept 2011]; Quiroz v Beitia, 68 AD3d 957, 961 [2d Dept 2009]). Similarly, it cannot be determined as a matter of law what contribution, if any, Dr. Bronfman and P.A. Nisimova are entitled to from Dr. Vaizman, as the apportionment of fault between tortfeasors is a question of fact which must be determined by a jury. Therefore, that part of the motion (Seq. No. 19) seeking partial or conditional summary judgment on the third-party action is denied.

In a separate motion (Seq. No. 18), Dr. Vaizman moves to dismiss the third-party contribution and indemnification claims against her by Defendants/Third-Party Plaintiffs PGS, Dr. Bronfman, and P.A. Nisimova.

In support of her motion, Dr. Vaizman submits the aforementioned expert affirmation [*7]from Dr. Fried, which has been discussed above. Defendants/Third-Party Plaintiffs PGS, Dr. Bronfman, and P.A. Nisimova oppose the motion but while they do not concede that Dr. Vaizman's acts and omissions constituted malpractice (and in fact adopted her expert's affirmation in their own summary judgment papers), the Third-Party Plaintiffs argue that if they are ultimately found vicarious liable on her behalf, PGS "would then have the right to indemnification" against Dr. Vaizman as the direct tortfeasor (see Nobel v Ambrosio, 120 AD2d 715, 717 [2d Dept 1986]).

Notably, in opposition, Plaintiff submits their previously discussed expert affirmations, setting forth conflicting opinions regarding Dr. Vaizman's acts and omissions.

In response, Dr. Vaizman argues in essence that Plaintiff has no standing to oppose their motion, and therefore Plaintiff's expert affirmation should be disregarded.

The Second Department has repeatedly upheld summary judgment decisions where the trial court considered a plaintiff's expert affirmation when denying a third-party defendant's motion on the merits (see Macancela v Wyckoff Hgts. Med. Ctr., 176 AD3d 795 [2d Dept 2019]; Reustle v Petraco, 155 AD3d 658 [2d Dept 2017]). In the underlying trial court decision in Macancela, the defendant hospital had brought in a treating physician as the third-party defendant, on the basis that "in the event [the hospital was] found liable at trial, it is entitled to indemnification and/or contribution" (Macancela v Wyckoff Hgts. Med. Ctr., 2018 WL 10246443 [NY Sup Ct, Kings County 2018], affd as mod, 176 AD3d 795 [2d Dept 2019]). The third-party defendant moved for summary judgment, the third-party plaintiffs opposed the motion as "premature," and the plaintiff submitted an expert affirmation (i.d.). The trial court denied summary judgment and the Second Department affirmed that part of the decision, holding that "in opposition, the plaintiffs' expert raised a triable issue of fact as to whether [the third-party defendant] deviated from good and accepted practice" (Macancela, 176 AD3d at 798-799).

Similarly, the court in Reustle considered the plaintiff's expert affirmation when denying third-party defendants' summary judgment motion in a medical malpractice case. The third-party defendant was a professional corporation who provided physical therapists to the defendant nursing home facility; the nursing home asserted contribution and indemnification claims against them. Although Plaintiff took "no position with respect to the contract issues" between the third-party plaintiff and third-party defendant, she opposed "their respective motions for summary judgment on the medical merits." The trial court found that the plaintiff's expert raised issues of fact on the standard of care and proximate causation, and therefore denied summary judgment to both the defendant and the third-party defendant. (Reustle v Petraco, 2014 WL 12793230[NY Sup Ct, Nassau County 2014], affd, 155 AD3d 658 [2d Dept 2017].) The Second Department affirmed, holding "the Supreme Court properly determined that an expert affirmation submitted in opposition to the motion raised triable issues of fact," referring to the plaintiff's expert affirmation (Reustle, 155 AD3d 658 at 660).

Furthermore, it is well established a third-party defendant's motion can be denied when their own expert opinions rest on "disputed issues of fact" (Vazquez v Beth Abraham Health Services, 172 AD3d 411 [1st Dept 2019]).

The same circumstances exist in this case as Macancela and Reustle. Although Plaintiff is not a "party" to the third-party action and has not asserted direct claims against Dr. Vaizman, the third-party claims rest on the physician's treatment of Plaintiff as an employee of PGS. It is undisputed that Dr. Vaizman was a physician employed by PGS, and her alleged acts and [*8]omissions are a crucial part of Plaintiff's vicarious liability claims against that defendant. Thus, Plaintiff has an obvious interest in countering the opinions of Dr. Vaizman's expert, Dr. Fried. The conflicting expert opinions regarding Dr. Vaizman are unavoidably linked to both the third-party claims and Plaintiff's claims against PGS, because all these claims are grounded in whether Dr. Vaizman departed from the standard of care and proximately caused injury to Plaintiff. The Court must therefore consider Plaintiff's opposition papers as part of the record when determining whether the Third-Party Defendant has eliminated issues of fact.

Dr. Vaizman's legal argument to disregard Plaintiff's expert relies primarily on Bello v New York City Health and Hosps. Corp., 233 AD3d 466 (1st Dept 2024), a First Department case which held that "the only opposition that the motion court should have considered in its summary judgment determination for the third-party action" was the opposition by the third-party plaintiff, not the plaintiff who had "no interest in the outcome of the [third party] action." However, that decision is not binding on this court, and it can be easily distinguished from the present action and the Second Department cases cited above. Notably, that case involved a wholly different hospital/facility that was impleaded as a third-party defendant on a theory of contribution, rather than a physician of the same facility whose liability was already contested by the plaintiff.

The other cases cited by the First Department in Bello have no bearing on the instant action. They strictly involve the question of whether a plaintiff has standing pursuant to CPLR 5511 to appeal a third-party summary judgment decision (Scopelliti v Town of New Castle, 92 NY2d 944 [1998]; D'Ambrosio v City of New York, 55 NY2d 454 [1982]; Siegel v. Long Island Jewish Med. Ctr., 309 AD2d 916 [2d Dept 2003]). In the context of appellate practice, those cases held the plaintiff was not an "aggrieved party" affected by the third-party defendant's dismissal, because that dismissal did not affect the plaintiff's ability to recover from the defendants they had claims against. That is not the case in this action, where Plaintiff would be adversely affected by a finding that Dr. Vaizman complied with the standard of care or did not proximately cause her injuries.

As discussed above, whether Dr. Vaizman's acts and omissions constitute malpractice is already a clear issue of fact in the record. Her expert affirmation is based on disputed facts (including whether the patient reported bleeding on her January 5, 2011 appointment) and the opinions have been countered by Plaintiff's experts, raising issues of fact and credibility. Her argument to dismiss the third-party claims against her is grounded in these questions of fact, and therefore her motion for summary judgment must be denied.

Turning to the motions related to Plaintiff's tracheostomy placement, the movants Dr. Radianu (anesthesiologist), Dr. Ketosugbo (general surgeon), Dr. Hanson (ENT attending) were each involved in her treatment for respiratory failure in the early morning of January 19, 2011.

According to the medical chart, Dr. Radianu was the physician who first observed Plaintiff's oxygen saturation had dropped from 98% at 11:10 p.m. to the 80s at 11:30 p.m. in the PACU. He ordered a chest x-ray and arterial blood gas test. As her oxygen levels did not improve with supplemental oxygen, he placed a laryngeal mask airway and requested a "stat" ENT consult to intubate.

At approximately 11:55 p.m., an ENT resident called Dr. Hanson, the ENT attending physician, who was not present at the hospital. They also contacted general surgery attending Dr. Ketosugbo. After failed attempts to secure an airway, Plaintiff was returned to the OR between 12:10 a.m. and 12:25 a.m. At that time her oxygen saturation had dropped to 17%. There are [*9]discrepancies in the parties' testimony as to who made the first tracheostomy incision. Dr. Ketosugbo testified that non-moving defendant Dr. Marzouk (a senior resident) was present when he arrived and "the incision was already made." Dr. Marzouk testified that she did not make the first incision, but she ultimately placed the endotracheal tube and an airway was established at 12:30 a.m.

Following the 12:30 a.m. intubation, Plaintiff's oxygen saturation improved somewhat but remained low at 60-80%. In the 60-90 minutes between the initial tracheostomy tube placement and Dr. Hanson's arrival, she became bradycardic, exhibited signs of acidosis, and required vasopressors and ACLS resuscitation.

When Dr. Hanson arrived in the OR at approximately 1:50 a.m., he noted the tracheostomy incision was too low, and he dilated the tracheostomy site and placed a larger tracheostomy tube in place of the endotracheal tube. Her oxygen saturation and arterial blood gas values improved, and she returned to the PACU at 3:30 a.m. with consistent 96-100% oxygen saturation. Plaintiff alleges that the failure to timely and properly perform a tracheostomy placement resulted in prolonged oxygen deprivation and anoxic brain damage.

In support of his motion for summary judgment (Seq. No. 20), Dr. Hanson submits an expert affirmation from Michael Setzen, M.D. ("Dr. Setzen"), a licensed physician board certified in otolaryngology. He affirms he has background and experience in performing tracheostomies in a hospital setting.

Dr. Setzen opines that Dr. Hanson acted in compliance with the standard of care in his treatment of Plaintiff in the early morning of January 19, 2011. He opines that as Dr. Hanson was at least 30-40 minutes away from the hospital, according to his testimony, he appropriately responded to the call from the hospital staff by advising them to emergently "seek out a surgeon who by virtue of his or her surgical training would be able to secure a surgical airway." The expert opines that as the on-call otolaryngologist who was not present at the hospital, it was "appropriate for him to rely upon" the hospital's thoracic surgeon Dr. Ketosugbo and the resident Dr. Marzouk "to establish a surgical airway until he arrived."

The expert further opines that it was not a departure from the standard of care for the patient to be ventilated with an endotracheal tube by Dr. Marzouk before Dr. Hanson arrived, as this type of tube is more flexible and can be used in "emergent situations . . . to establish an airway quickly and easily." The expert opines that the endotracheal tube is within the standard of care as a "temporary measure" to ventilate the patient, although a tracheostomy tube should ultimately be placed.

The expert opines based on Dr. Hanson's testimony that he "left his home for the hospital immediately after being apprised of the emergency," which was in compliance with the standard of care. He opines in detail that Dr. Hanson appropriately performed the tracheostomy tube placement once he arrived at the hospital, repositioning the airway and replacing the endotracheal tube with the larger and more rigid tracheotomy tube. He opines that Dr. Hanson's "quick action and skill in performing a tracheostomy" ultimately saved Plaintiff's life.

Dr. Setzen opines that any delay in Dr. Hanson's arrival to the hospital did not proximately cause injury to Plaintiff. He states that brain damage begins to occur when oxygen saturation drops below 80%, "permanent irreversible anoxic brain injury" occurs at 60%, and oxygen saturation as low as 17% is "incompatible with life." He opines that as Plaintiff's oxygen saturation dropped as low as 17%, "any anoxic brain injury the plaintiff sustained as a result of the deprivation of oxygen occurred before Dr. Hanson could have arrived at the hospital."

Based on these submissions, Dr. Hanson has established prima facie entitlement to summary judgment. His expert affirmation sets forth opinions that he acted in accordance with the standard of care in immediately leaving for the hospital, advising other available surgeons to secure the airway while he was on the way, and performing the tracheostomy tube placement in a timely and proper manner. The expert further opines that Plaintiff's anoxic brain injury was inevitable due to her low oxygen saturation, regardless of any alleged delay in performing the tracheostomy, and therefore Dr. Hanson did not proximately cause her injuries. The burden therefore shifts to Plaintiff to raise an issue of fact.

In opposition, Plaintiff submits an expert affirmation from the aforementioned anesthesiology expert. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection. Plaintiff's expert affirms that they have experience and background in assessing a patient's ability to ventilate properly and "treating patients during critical care emergencies."

Plaintiff's expert counts the movant's expert and states that Dr. Hanson did not "promptly go to the hospital" after being notified by the junior resident that they had difficulty securing an airway. The expert states that based on Dr. Hanson's testimony, it should have taken him "approximately 30 minutes to travel to the hospital" after he was called around midnight. However, the medical record is unclear as to his actual time of arrival, which may have been as late as 1:50 a.m., over one hour later. The expert also counters the movant's expert opinion that it was appropriate for Dr. Hanson to rely on the resident in his absence. The expert notes that according to the non-moving co-defendant Dr. Marzouk's testimony, Dr. Hanson was called more than once before arriving at the hospital, and at one point asked "if he still had to come in since we had the airway." The expert opines that this testimony indicates Dr. Hanson did not leave for the hospital immediately and did not appreciate that his presence was required to ensure the tracheostomy was properly performed.

As Plaintiff's expert notes, Dr. Hanson's tracheostomy revision eventually "took less than one minute" to perform, after which Plaintiff's oxygen saturation and arterial blood gas values substantially improved. The expert opines that Dr. Hanson's delay in arriving to the operating room to revise the tracheostomy was a substantial factor in worsening Plaintiff's injury. The expert counters the movant's expert that her permanent brain damage was inevitable and could not have been improved with earlier intervention. The expert opines that the severity and duration of hypoxia affect the "extent of neurological damage." Plaintiff's expert also opines that once Dr. Hanson corrected the position and dilated the tracheostomy site, "her color normalized, her oxygen saturation increased, and her blood gas values improved," which they opine is consistent with an "ongoing and evolving" hypoxic injury rather than a "complete or irreversible" one. Thus, the expert opines that Dr. Hanson's alleged failure to timely arrive and intervene was a "substantial contributing factor in the development and severity of the patient's anoxic brain damage."

Based on evaluation of the submissions, Plaintiff has raised triable issues of fact precluding summary judgment in favor of Dr. Hanson. There are underlying questions of fact and credibility based on the parties' testimony as to whether Dr. Hanson made appropriate efforts to go to the hospital in a timely or emergent manner as required by the standard of care. Additionally, the parties' experts have offered conflicting opinions as to the standard of care for an on-call/attending otolaryngologist and whether it was appropriate for Dr. Hanson to rely on residents and other available surgeons to attempt to secure a patient's airway in his absence. For [*10]this reason, whether he complied with the standard of care in timely arriving at the hospital is a question of fact that must be resolved by a jury.

Plaintiff's expert also raised triable issues of fact on the issue of proximate causation, offering a counter-opinion to the movant's expert that the alleged delay in revising the tracheostomy caused or contributed to a worsening of the patient's brain injury, and whether she was deprived of a better outcome by the duration of her oxygen deprivation.

As these issues of fact cannot be determined as a matter of law, Dr. Hanson's motion for summary judgment on the medical malpractice claims is denied.

In support of anesthesiologist Dr. Radianu's motion for summary judgment (Seq. No. 21), the movant submits an expert affirmation from Don J. DeCrosta, M.D. ("Dr. DeCrosta"), a licensed physician who is board certified in anesthesiology.

Dr. DeCrosta opines that Dr. Radianu complied with the standard of care in treating Plaintiff as an anesthesiologist, including providing anesthesia for her D&C and monitoring her in the recovery room.

The expert states that on the night of January 18, 2011, Dr. Radianu first observed that Plaintiff's oxygen saturation had dropped to 80% at 11:30 p.m. (after testing 98% five minutes earlier at 11:25 p.m.). The expert opines that Dr. Radianu appropriately rechecked the pulse oximeter to confirm it was not an equipment error, then "took appropriate action by ordering a stat chest x-ray and stat arterial blood gas test, and by placing Plaintiff on a 100% non-rebreather mask." The expert further opines that Dr. Radianu appropriately attempted to intubate the patient due to her "rapidly worsening condition," placed a laryngeal/supraglottic mask airway, and immediately requested assistance to establish an airway surgically. The expert opines that Dr. Radianu did not have the credentials to perform a surgical airway procedure himself as an anesthesiologist, and the standard of care required him to call for assistance.

The expert opines that Dr. Radianu properly provided anesthesia in the operating room while the emergency tracheostomy was performed, first by other members of the LICH staff and then by Dr. Hanson. The expert states that the procedure "started at 12:15 a.m. and ended at 3:45 a.m.," that Dr. Radianu provided anesthesia throughout that time, but was not one of the physicians who actively performed the tracheostomy placement. The expert opines that no alleged acts or omissions of Dr. Radianu proximately caused or worsened Plaintiff's hypoxia.

Based on these submissions, Dr. Radianu has established prima facie entitlement to summary judgment, based on their expert affirmation setting forth that all Dr. Radianu's treatment was within good and accepted stands of anesthesiology care, and that he did not proximately cause or contribute to Plaintiff's injuries. The burden therefore shifts to Plaintiff to raise issues of fact.

In opposition, Plaintiff submits an expert affirmation from their aforementioned anesthesiology expert. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection.

Plaintiff's anesthesiology expert opines that it is "the responsibility of the anesthesia team to confirm proper positioning and effective two-lung ventilation" when an endotracheal tube is placed, which includes assessing the patient for "bilateral chest rise and bilateral breath sounds." If the tube is not properly placed, the expert opines that the standard of care requires the anesthesiologist to "promptly recognize this condition and correct the malposition, either by withdrawing and repositioning the tube or by alerting the surgical team so that it can be corrected."

The expert opines that in this case, Dr. Radianu failed to recognize that the endotracheal tube was not properly placed and only one lung was ventilated when the airway was established by non-moving defendant Dr. Mazzouk between 12:20 a.m. and 12:30 a.m. Based on the medical records, the expert opines that the tube was "advanced too deeply, resulting in a prolonged period of one-lung ventilation." This remained uncorrected until Dr. Hanson revised the position at approximately 2:00 a.m., at which time her hypoxia and oxygenation showed meaningful improvement.

The expert opines that Dr. Radianu departed from the standard of care by failing to assess bilateral chest rise and breath sounds and recognize the patient was not being properly ventilated while providing anesthesia in the operating room. The expert also opines that this failure to appreciate the improper one-lung ventilation and alert the surgical team was a proximate cause of Plaintiff's prolonged hypoxia until Dr. Hanson arrived nearly 90 minutes later.

Generally, "[a]lthough physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient" (Abruzzi v Maller, 221 AD3d 753, 755 [2d Dept 2023]; Meade v Yland, 140 AD3d 931, 933 [2d Dept 2016]). "The existence and scope of a physician's duty of care is a question of law to be determined by the court" (Cooper v City of New York, 200 AD3d 849, 851 [2d Dept 2021], citing Romanelli v Jones, 179 AD3d 851, 852-854 [2d Dept 2020]).

Here, based on the testimony and medical records, Dr. Radianu had been monitoring the patient's oxygen saturation in the recovery room and was the first to call for an emergent surgical intervention. As noted by the movants, Dr. Radianu was "not credentialed to perform a surgical airway procedure" and it is undisputed that he did not make a tracheal incision on Plaintiff or place the endotracheal or tracheostomy tube, nor did he have a duty to do so. However, he continued to follow Plaintiff in the operating room, administer anesthesia, and monitor her vital signs and oxygen saturation. He specifically testified that "airway evaluation is part of the anesthesia training and part of any anesthesia assessment." He also testified that he was "involved with the ventilatory support of this patient," and it took "probably an hour or so or more" while he remained in the operating room.

In these circumstances, the Court finds as a matter of law that Dr. Radianu had a duty as the operating room anesthesiologist to monitor the patient's ventilation and notify the surgical team of an insufficient airway, as argued by Plaintiff. While it is not disputed that Dr. Radianu did not perform the surgical tracheostomy procedure or place the endotracheal tube, he was providing anesthesiology in the operating room, and the record establishes that monitoring the patient's ventilation and alerting the surgical team was within the scope of the medical duty he undertook for this patient.

As such, Plaintiff's anesthesiology expert has sufficiently raised an issue of fact as to whether Dr. Radianu performed this duty within good and accepted medical standards. The expert opines that he did not sufficiently assess her for two-lung ventilation, recognize her improperly placed endotracheal tube and inadequate oxygenation, and inform the surgical team that the tube required repositioning. The parties' conflicting expert opinions have raised a triable issue of fact regarding whether Dr. Radianu deviated from the standard of care during Plaintiff's tracheostomy in the operating room. Plaintiff's expert has also raised issues of fact sufficient to defeat the movant's prima facie showing on whether this alleged departure proximately caused injury to Plaintiff.

In reply, the movant argues that Plaintiff's expert attempts to raise a new theory of [*11]liability that was not set forth in the bill of particulars. The Court rejects this argument. Plaintiff's bill of particulars including multiple claims including his alleged "failing to reverse Plaintiff's hypoxemia," "failing to properly monitor plaintiff's oxygen saturation level," "failing to treat and/or timely treat the decrease in plaintiff's oxygen saturation level," "failing to ensure the plaintiff was ventilated," "failing to request assistance in performing a tracheostomy," and "failing to timely take measures necessary to ventilate plaintiff." The Court finds that the bill of particulars sufficiently set forth claims involving Dr. Radianu's alleged role in evaluating Plaintiff's ventilation while providing anesthesia during the tracheostomy, and Plaintiff's expert addressed these claims in more detail in their expert affirmation, raising issues of fact which must be resolved by a jury.

Lastly, Plaintiff's anesthesiology expert does not address or raise any issues of fact as to any departures from the standard of care by Dr. Radianu prior to Plaintiff's transfer to the operating room for an emergency tracheostomy, and therefore summary judgment is granted as to those claims.

For these reasons, Dr. Radianu's motion (Seq. No. 21) is granted to the extent of dismissing any claims prior to the emergent tracheostomy procedure and placement of the endotracheal tube on January 19, 2011, and the motion is otherwise denied.

Finally, in support of his motion (Seq. No. 17) for summary judgment, thoracic surgeon Dr. Ketosugbo submits only an attorney affirmation, memorandum of law, and statement of material facts. He does not submit an expert affirmation.

Plaintiff and co-defendants argue in opposition that Dr. Ketosugbo has failed to meet his prima facie burden to establish entitlement to summary judgment. The Court agrees. There remain clear issues of fact and credibility, based on discrepancies in the parties' testimony, as to Dr. Ketosugbo's role in attempting to ventilate the patient, including whether he made an incision to Plaintiff's trachea before the resident Dr. Marzouk arrived. Further, the movant has not submitted any affirmation from a physician in Dr. Ketosugbo's field to offer an opinion that he complied with the applicable standard of care, or that his alleged acts and omissions did not proximately cause Plaintiff's injury. His own testimony that he did not deviate from good and accepted standards of medical care is self-serving, conclusory, and based on facts which are contested by the plaintiff and co-defendants. Accordingly, regardless of the sufficiency of the opposition papers, Dr. Ketosugbo's motion for summary judgment is denied in its entirety.

It is hereby:

ORDERED that Defendant Dr. Ketosugbo's motion for summary judgment (Seq. No. 17) is denied; and it is further

ORDERED that Third-Party Defendant Dr. Vaizman's motion for summary judgment (Seq. No. 18) on the third-party claims is denied; and it is further

ORDERED that the part of Defendant/Third-Party Plaintiffs PGS, Dr. Bronfman, and P.A. Nisimova's motion (Seq. No. 19) seeking summary judgment and dismissal of Plaintiff's Complaint is granted to the extent of dismissing Plaintiff's claims against them for lack of informed consent, and the motion is otherwise denied; and it is further

ORDERED that the part of Defendant/Third-Party Plaintiffs PGS, Dr. Bronfman, and P.A. Nisimova's motion (Seq. No. 19) seeking partial summary judgment on their third-party claims against Dr. Vaizman is denied without prejudice; and it is further

ORDERED that Defendant Dr. Hanson's motion for summary judgment (Seq. No. 20) is granted to the extent of dismissing Plaintiff's claims for lack of informed consent against him, [*12]and the motion is otherwise denied; and it is further

ORDERED that Defendant Dr. Radianu's motion for summary judgment (Seq. No. 21) is granted to the extent of dismissing Plaintiff's claims for lack of informed consent against him, and dismissing any claims prior to the endotracheal/tracheostomy tube placement in the operating room, and the motion is otherwise denied.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.