Opinion
Index No. 805095/2020 Motion Seq. No. 001
02-07-2024
KATHLEEN GRESSER-FRITZMAN and DAVID FRITZMAN, Plaintiffs, v. ANTHONY FREMPONG-BOADU, M.D., TRAVIS HILL, M.D., MICHAEL MARGIOTTA, M.D., ANDREW BRUNSWICK, M.D., VLADIMIR GALIC, and NYU LANGONE HEALTH SYSTEM TISCH HOSPITAL, Defendants.
Unpublished Opinion
MOTION DATE 11/08/2023
DECISION + ORDER ON MOTION
JOHN J. KELLEY, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 65, 66, 67, 68, 69, 70, 71,72, 73, 74, 75, 76, 77, 78, 79, 80, 81,82, 83, 84, 85, 86, 87, 88, 89 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) I. INTRODUCTION
In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice, lack of informed consent, negligent hiring, and loss of spousal consortium, the defendants Anthony Frempong-Boadu, M.D., and NYU Langone Health System Tisch Hospital (together the NYU defendants) move pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against them. The plaintiffs oppose the motion. The motion is granted only to the extent that the NYU defendants are awarded summary judgment dismissing the lack of informed consent, negligent hiring, and loss of spousal consortium causes of action insofar as asserted against them. The motion is otherwise denied, inasmuch as the NYU defendants' own submissions reveal and reflect the existence of triable issues of fact as to whether they negligently permitted a foreign object or objects to remain in the body of the plaintiff Kathleen Gresser-Fritzman (hereinafter the patient) and whether that negligence proximately caused the patient to sustain injuries, specifically, whether she underwent indicated surgery to remove fragments of those objects from her lung.
II. FACTUAL BACKGROUND
The crux of the plaintiffs' contention is that, in the course of performing lumbar spine surgery on the patient at the defendant NYU Langone Health System Tisch Hospital (NYU Langone), surgeon Frempong-Boadu left a fragment or a tip of a catheter in the patient's body that migrated from her lower pulmonary artery into her lungs. They also asserted that the NYU defendants failed to obtain the patient's fully informed consent to the procedure by failing fully to discuss risks, benefits, and alternatives, and that NYU Langone negligently hired, supervised, and retained various medical professionals.
Between 2003 and 2017, the patient underwent several surgeries on her spine. On October 4, 2017, Frempong-Boadu performed lumbar spine surgery upon the patient at NYU Langone. During the course of this surgery, he employed polymethylmethacrylate, a type of "bone cement," to hold the pedicle screws in the vertebrae so that the spinal hardware would not pull out of her bone. According to the NYU defendants, extravasation of bone cement, that is, the passage of this material out of a vessel and into surrounding tissue, is a known risk of the surgery, and this material can embolize to the pulmonary artery. The NYU defendants asserted that Frempong-Boadu did not place or remove any catheter during the October 4, 2017 surgery or at any time during the patient's admission for that surgery. Rather, they averred that, for purposes of administering anesthesia, the anesthesiologist assigned to the procedure, John Ard, M.D., placed three peripheral veinous lines (PVLs) into the patient's veins on October 4, 2017, that those were the only catheters installed, and that two more PVLs were placed during the patient's postoperative care at NYU Langone, but that there was no documentation or evidence that any of the PVLs placed during the surgery or afterward failed, broke, or were otherwise damaged during placement or removal. Specifically, they asserted that no arterial catheter, central line, or peripherally inserted central catheter (PICC) line was placed during the patient's October 2017 admission to NYU Langone.
The patient's postoperative course was unremarkable, according to the NYU defendants. Postoperative imaging of her spine at NYU Langone did not reveal the presence of any foreign object in her pulmonary artery or elsewhere. Nonetheless, a computed tomography (CT) scan of the patient's lumbar spine that was performed on October 5, 2017 revealed a small extravasation of bone cement from the patient's vertebrae. On October 10, 2017, the patient was discharged to Rusk Rehabilitation at NYU Langone Orthopedic Hospital (Rusk) for acute inpatient rehabilitation, and then to short-term rehabilitation on October 19, 2017. No catheters were placed at Rusk, and the patient ultimately was discharged from that rehabilitation facility.
On April 26, 2018, the patient was admitted to nonparty South Nassau Communities Hospital in Oceanside, New York (South Nassau; now known as Mount Sinai South Nassau), on an emergent basis to treat a perforated diverticular ulcer. On April 27, 2018, she underwent a laparoscopic sigmoidectomy due to a perforated stercoral ulcer. Four postoperative chest x-rays taken on April 27, 2018, April 29, 2018, April 30, 2018, and May 1, 2018 reported "a curvilinear density in the region of the heart" and that a "[c]urvilinear calcified structure in the left infrahilar region localized to the lower lobe pulmonary artery . . . may reflect an old foreign body or chronically calcified thrombus." South Nassau surgeon Megan Chan, M.D., who had been assigned to the patient's case, ordered abdominal and pelvic CT scans on or about May 4, 2018. Radiologist Douglas Silfen, M.D., performed the scans on that date, and identified a linear object in the patient's left lower pulmonary artery. In his report, which was electronically signed, but not affirmed or sworn to, Dr. Silfen found, in relevant part, as follows:
"Lungs/pleura: Mild pleural effusions and associated basilar atelectasis/infiltrate are again noted.
"Followup to resolution is advised.
"Nonspecific (axial image 42) 1 mm left lower lobe subpleural nodule versus pleural tag is identified (see below*). Again demonstrated fractured portion of an apparent catheter[,] catheter extending from the left main to the lower lobe pulmonary artery measures approximately 5 to 6 cm in length. No pneumothorax is identified"(emphasis added). He reiterated, as one of his "impressions," that the scan "[a]gain demonstrated fractured portion of an apparent catheter[,] catheter extending from the left main to the lower lobe pulmonary artery measures approximately 5 to 6 cm in length" (emphasis added). In an addendum to one of the scans that had been undertaken during the last week of April 2018, and which had been signed later on May 4, 2018, South Nassau diagnostic radiologist Stephen Henesch, D.O., wrote that "[k]nown foreign body/presumably fractured catheter is noted within the left main pulmonary artery." In a further report also dated May 4, 2018, Dr. Silfen noted the presence of a "[r]adiopaque catheter in the left lower pulmonary artery consistent with a broken vascular catheter' (emphasis added).
In a South Nassau operative report dated May 7, 2018, South Nassau staff indicated the presence of a linear image on the patient's May 4, 2018 CT scan that "incidentally showed a foreign body in the L[ower] P[ulmonary] A[rtery] likely representing a catheter tip from a since removed PICC line. Pt denies any history of PICC lines, central lines, IVC filter placements, but also states she is unsure of her memory" (emphasis added). South Shore thoracic surgeon Vanessa R. Gibson, M.D., further reported on May 7, 2018 that the patient was unable to recall having any central venous catheters or access procedures between 2014 and 2018. A May 10, 2018 progress note, however, described the patient as a "55 YO female with an incidental finding of a catheter identified in her pulmonary artery on imaging." The May 2018 surgery was otherwise unremarkable.
On July 26, 2018, the patient underwent an elective procedure for the retrieval of the allegedly retained foreign body, performed by nonparty interventional cardiologist George A. Petrossian, M.D., at St. Francis Hospital in Roslyn, New York. The procedure was unsuccessful, since no portion of any "catheter" or any other object was removed, and the object sought to be retrieved broke apart as soon as Dr. Petrossian touched it with his snare, yielding the remainder of three fragments of the object that had embolized into the patient's lung. Dr. Petrossian recommended that the patient undergo no further retrieval efforts, as the risk of additional attempts outweighed any benefits. The patient has not undergone any further retrieval procedures and, according to the NYU defendants, she has not experienced any symptoms related to the remaining fragments of the object in her lung. Although the NYU defendants conceded that the patient may have experienced episodes of fainting after the failed retrieval, they attributed those episodes to her medications, not the presence of the remaining fragments of the object sought to be removed.
III. PLAINTIFFS' CONTENTIONS
In their complaint, the plaintiffs alleged that the NYU defendants committed medical malpractice by negligently, carelessly, recklessly, and grossly failing properly to test, diagnose, treat, and provide proper medical care to the patient. They alleged that the NYU defendants negligently failed and neglected to use reasonable care in the services and care rendered for and on behalf of the patient, or to heed the patient's condition, thus negligently and carelessly departing from good and accepted medical practice. The plaintiffs further asserted that the NYU defendants negligently failed to perform indicated procedures and/or improperly performed indicated procedures, and failed to take a proper history of the patient's medical condition and conduct a physical examination prior to instituting treatment. In addition, the plaintiffs averred that the NYU defendants negligently misused and broke a device while treating the patient, failed to ascertain the presence of that foreign object, and thereupon left a foreign object in the patient's body. They ultimately asserted that these departures from good and accepted medical care proximately caused the patient to sustain injuries.
Additionally, the complaint alleged causes of action sounding in lack of informed consent and negligent hiring, training, supervision, and retention.
In their bills of particulars as to the NYU defendants, the plaintiffs reiterated the allegations of departures from good and accepted medical practice that they had asserted in their complaint, adding that the NYU defendants failed to perform a proper and timely physical examination of the patient, failed to render the proper and timely medical care and treatment with respect to the patient's existing conditions, failed to ascertain the cause of the patient's conditions, failed to institute a proper and timely course of treatment, and failed to render a proper and timely diagnosis. They reiterated that the NYU defendants improperly placed catheters, and negligently performed the lumbar spinal surgery by allowing a fragment or tip of a catheter to remain in the patient's body. In this regard, the plaintiffs asserted that the NYU defendants were negligent in selecting and utilizing a device not in a suitable condition for use, in failing to inspect and examine the devices that were utilized, in failing to be aware of the proper usage of the devices that were utilized, in using excessive and misdirected force while rendering treatment, in misusing and breaking a device while treating the patient, in failing to anticipate injuries and complications, and in failing to be prepared for those complications. They further repeated the basis of their claims sounding in lack of informed consent and negligent hiring, supervision, training, and retention.
The plaintiffs asserted in their bills of particulars that, as a consequence of the NYU defendants' alleged malpractice, failure to obtain the patient's fully informed consent, and negligent hiring, the patient was caused to sustain the migration of a PICC line or central line, or a fragment thereof, or of another foreign object, into her pulmonary artery, as well as depression, fainting spells, severe anxiety over the presence of the foreign object, hospitalizations, including surgery to attempt removal of the foreign object, the need for the monitoring of a potentially life-threatening condition, and accompanying severe pain, tenderness, swelling, stiffness, discomfort, deformity, distress, weakness, and related injuries to the underlying soft tissues, blood vessels, nerves, tendons, ligaments, musculature and cartilages in and about the areas surrounding the patient's injuries.
IV THE SUMMARY JUDGMENT MOTION
In support of their motion for summary judgment, the NYU defendants submitted the pleadings, the plaintiffs' bills of particulars, transcripts of the parties' depositions, transcripts of nonparty depositions, relevant medical records from NYU Langone, South Nassau, and St. Francis hospitals, Frempong-Boadu's office records, and office records of other subsequent treating or examining physicians. They also submitted the expert affirmation of board-certified neurological surgeon Daniel M. Sciubba, M.D., and an affirmation from Dr. Silfen, the radiologist who had authored the CT reports contained in the NYU defendants' hospital records that had suggested that there might have been a catheter fragment or tip remaining in the patient's body subsequent to the October 2017 lumbar spine surgery. In addition, the NYU defendants submitted an attorney's affirmation.
In his affirmation, Dr. Sciubba recounted the patient's medical and surgical history. He opined that the linear object identified in the patient's radiology reports beginning in April and May, 2018 "cannot be a catheter, a fractured catheter, or a catheter tip from a catheter placed at NYU because no catheter matching the described length of the object on subsequent radiology was placed in plaintiff at NYU during the October 2017, surgery, or admission." Alternatively, he opined that the linear object seen on the May 4, 2018 CT scan was "bone cement that extravasated from the vertebra during the October 4, 2017, surgery performed by Dr. FREMPONG-BOADU, and traveled to the plaintiff's left lower pulmonary artery where it stayed until the failed retrieval effort in July 2018." As Dr. Sciubba explained it, "[w]ith hindsight, plaintiff's postoperative CT scan of October 5, 2017 shows that extravasation of bone cement did occur in this case." He asserted that bone cement extravasation is a known risk of the spine surgery performed on plaintiff "that can, and in this case did, occur absent any negligent performance of the surgery or postoperative care." In addition, he concluded that any alleged failure to recognize and report on the extravasation of bone cement in plaintiff's vascular system after the surgery was not a departure from the standard of care, "as there were no signs or symptoms associated or caused by its presence." Specifically, Dr. Sciubba opined that the extravasation of bone cement that mistakenly was identified as a fractured catheter or catheter tip seven months after the spinal surgery "did not cause [the patient] any injury and did not require extraction as she was entirely without symptoms related to its presence in her pulmonary artery. Further, [she] remained without symptoms related to the three fragments that remain in her lung after the failed extraction in July 2018."
With respect to the October 4, 2017 surgery, Dr. Sciubba referred to the NYU defendants' records and the deposition testimony of anesthesiologist John Ard, M.D., and noted that three PVLs were the only catheters placed in the patient's body during the surgery, and were placed in order to administer anesthesia, intravenous fluids, and medications. Specifically, according to the records and Dr. Ard's testimony, one 22-gauge PVL was placed in the median vein at the underside of the left arm and removed on October 5, 2017, one 18-gauge PVL was placed in the median cubital vein of the right arm and removed on October 6, 2017, and one 20-gague PVL was placed in the median cubital vein of the left arm, and removed on October 6, 2017. According to Dr. Sciubba, there was no documentation or evidence that any of the PVLs that had been placed during the surgery had failed. As Dr. Sciubba explained it, although Dr. Ard's October 4, 2017 pre-operative anesthesia note documented "[m]onitoring and special procedures include: arterial catheterization," there is no record of any arterial catheter or central line being placed, and no arterial monitoring was performed during the procedure, which, to him, presented another indication that an arterial catheter was not actually placed, particularly since Dr. Ard confirmed that there were no arterial catheters or monitoring devices placed in the patient, and that no PICC or central lines were placed.
Dr. Sciubba averred that, after the surgery, two additional PVLs were placed into the patient, consisting of one that was placed in the medial basilic vein of the right arm on October 6, 2017 and removed on October 7, 2017, and one that was placed in the ventral left forearm on October 7, 2017 and removed on October 10, 2017. As Dr. Sciubba framed it, there was "no documentation of any complication with the placement or removal of the PVLs, including any breakage or damage to the catheter." Dr. Ard testified that all of the PVL catheters were removed, and had no knowledge as to whether a fragment or tip of any of those catheters remained in the patient's body, or how they could have migrated from the patient's veins into the patient's artery.
Quoting from Frempong-Boadu's deposition testimony, Dr. Sciubba concluded that Frempong-Boadu had himself not placed any catheters, and that he was not responsible for either the placement or the removal of the PVL catheters that had been placed by Dr. Ard. Dr. Sciubba further noted that the patient underwent a post-operative CT scan of the lumbosacral spine on October 5, 2017, and an x-ray of the lumbar spine on October 7, 2017, neither of which revealed or reflected the presence of any foreign object in plaintiff's left pulmonary artery. As Dr. Sciubba further explained, prior to the retrieval surgery that Dr. Petrossian performed, the patient was seen by pulmonologist Paul Kuperschmidt, M.D., who reported no symptoms or complications related to the linear object that had been identified on the CT scans. Dr. Sciubba also quoted from Dr. Petrossian's deposition testimony, in which Dr. Petrossian asserted that the foreign object that he attempted to remove from the patient was likely a catheter, but that he was not certain that it was indeed a catheter, and that he had never had a catheter break apart in the manner that the object had broken during the retrieval surgery. Dr. Sciubba further noted that, at his deposition, Dr. Petrossian also confirmed that the patient was asymptomatic prior to the retrieval procedure, which was performed, in part, solely because she wanted it done, and that the patient was at a low risk for further complications of thrombosis arising from the presence of fragments of any object.
Dr. Sciubba agreed that Frempong-Boadu had no responsibility for the placement or removal of the three PVL catheters and had no responsibility or duty to provide informed consent about catheter placement, or to consider, recognize, or diagnose a retained catheter or catheter fragment, and that his alleged "failure" to do so in this case was not a departure from standard of care.
Crucially, Dr. Sciubba asserted that
"the 'foreign object' at issue, the linear object seen on plaintiff's radiology from April 2018 until the July 2018 extraction attempt, is not consistent with a catheter that was placed at NYU. The radiology reports describe the linear object as 5 to 6 cm in length and presumes it is a catheter from a central line or PICC line based on its shape, length, and plaintiff's extensive surgical history. Central lines and PICC line are catheters with a length of 5 to 6 cm. However, the NYU records confirm that no catheter other the PVLs at around 3 cm was placed in plaintiff during the October 2017, surgery, and admission. Further, if a 3 cm PVL catheter broke and a piece or tip was retained in plaintiff's body, it would be smaller than 3 cm, not longer. There is no evidence or documentation that any of the PVL catheters placed in plaintiff during the October 2017, surgery and admission broke or were in any way damaged at the time of removal. As such, it is my opinion that the linear object identified on plaintiff's subsequent radiology cannot be a catheter, a fractured catheter, or a catheter tip from a catheter placed at NYU during the October 2017, surgery and admission."
Rather, Dr. Sciubba suggested that the object seen on the CT scans taken seven months after the lumbar spine surgery was polymethylmethacrylate, or bone cement, which starts as a "viscous, toothpaste-like, material that is manually injected into the hole around a pedicle screw in each vertebra under fluoroscopic guidance," hardens over the 15 to 20 minutes after injection to create "purchase" of the screw to hold it in place, and "is intended to remain permanently in the body." Hence, he concluded that any remnants of bone cement found in the patient's body did not constitute foreign objects.
Moreover, Dr. Sciubba asserted that Frempong-Boadu did not depart from good and accepted practice in the manner in which he applied the bone cement. Specifically, he stated that Frempong-Boadu "used a very good technique by applying cement in the posterior spine as, without cement, there was a high likelihood of plaintiff's hardware pulling out again and requiring further spine surgery." Rather, he stated that bone cement extravasation is a known risk of lumbar spine surgery in a 55-year-old female patient, and that some extravasation was indeed noted in the post-operative reports. As he explained it,
"[w]hen a patient's bone is weak and/or osteoporotic from chronic degeneration, prior instrumentation surgery, and/or trauma, there is a greater risk of bone cement extravasation because osteoporotic bone, unlike healthy, young bone, crumbles and becomes more vascular, filling with venous channels and pockets of blood. The slightest introduction of a viscous material, like bone cement, will fill those spaces and can extravasate to the spinal canal or embolize to the vasculature or lungs. Most often bone cement extravasation and embolization is
an incidental finding on postoperative radiology, as it was here on plaintiff's imaging. If the bone cement extravasates into the spinal canal, it must be cleaned it out or risk significant neurologic damage, including paralysis. However, if the bone cement embolizes into the vasculature or lungs, the standard of care is for conservative management by observation unless the patient becomes symptomatic with dyspnea/tachypnea (labored breathing), tachycardia (persistently increased heart rate), cyanosis (a blue discoloration of the skin from inadequate oxygen in the blood), chest pain, coughing, hemoptysis (coughing up blood), dizziness and sweating, at which time anticoagulation can be given and/or a retrieval procedure can be undertaken."
He stated that, inasmuch as the linear object seen on the 2018 CT scans was very thin, long, and curved, and had subtle undulations and bulges, the object was "consistent with bone cement traveling through the small vasculature before settling in the lower left pulmonary artery and hardening there." Further, he asserted that, "absent pathology unequivocally proving what the object is, the fact that it broke into pieces during the July 2018 retrieval is strong evidence that this was bone cement and not a catheter[,] as a catheter would not fracture upon touch as was reportedly described to plaintiff by Dr. Petrossian," while "bone cement would crumble and fracture with an attempt to snare it."
Dr. Sciubba further asserted that Frempong-Boadu did not abandon the patient, and that she sustained no compensable injury as a consequence of anything that the NYU defendants did or did not do. In this regard, he asserted that that the three bone cement fragments that remain in patient's lung since the failed retrieval effort in July 2018 "do not likely pose a future health risk to plaintiff." In light of the fact that the three fragments have remained in the same location on radiology scans since July 2018, Dr. Sciubba opined that they have likely fibrosed in place, or scarred over, and, thus, will not move and are unlikely to pose a threat to the patient's future respiratory health. In addition, Dr. Sciubba stated that the retrieval surgery was purely elective, and that none of the NYU defendants' "care and treatment directly or proximately caused or contributed to plaintiff's injuries that she did not electively pursue or cause to occur." In connection with that issue, he faulted the patient for failing to allow Frempong-Boadu to review the 2018 CT scans and advise her that the object seen thereon was bone cement. He further concluded that the patient's episodes of fainting that were not related to the cement fragments that remain in her lung but, instead, were caused by side effect of the patient's medications.
Dr. Sciubba also concluded that the NYU defendants properly obtained the patient's fully informed consent to the lumbar spine surgery, as they informed her of all of the known risks and benefits of the procedure, as well as the alternatives to the procedure. He specifically explained that, on July 25, 2017, the patient had signed a consent form and had a conversation with Frempong-Boadu, in which she acknowledged that the risks of the procedure included, but were not limited to, "infection, bleeding, neurologic injury up to and including paralysis, loss of bowel and bladder function, loss of sensation, failure to relieve and or improve symptoms, failure of instrumentation and fusion, adjacent segment degeneration damage to any paraspinous structures, CSF leak, and death," and that those risks were reiterated at a September 7, 2017 pre-operative visit with Frempong-Boadu. Dr. Sciubba opined that, while there was no documentation specifically indicating that bone cement was discussed with the patient, there is documentation that he discussed neurologic injury including paralysis, "which indicates to me that the use of bone cement was discussed as the risk of paralysis with this surgery primarily stems from the use of bone cement and the risk of it entering the spinal canal." The patient, who was trained as a nurse, confirmed at her deposition that Frempong-Boadu obtained her informed consent prior to every procedure that he performed on her.
In his affirmation, Dr. Silfen confirmed the radiological reports and entries that he made in the patient's South Nassau records, and corroborated that those entries contained the findings that he had made at the time that the CT scans were performed. He stated, however, that, in 2023, the NYU defendants' attorneys requested him to review those scans and subsequent medical records, and asked him if he "still felt that the object [he] identified in Ms. GRESSER-FRITZMAN's left lower pulmonary artery was a catheter." He stated in his affirmation that he "now believe[s] that the linear object seen in Ms. GRESSER-FRITZMAN's lower left pulmonary artery may not be a catheter" (emphasis added). He averred that,
"[s]pecifically, on the chest x-ray images, the edge of the linear object appeared to have subtle undulations and bulges. This would be inconsistent with a catheter since a catheter would be uniformly smooth and straight. Therefore, I believe it is likely that the object in the pulmonary artery is not a catheter but could represent surgical cement that had embolized to the lung. The bulges seen on the chest x-rays cannot be appreciated on the CT images because of motion artifact on that particular study."
He continued that, "[a]dditionally, the density of the object on x-ray is not sufficient for it to be considered a guidewire or other linear metallic object." Dr. Silfen thus concluded that the object that he had seen on the 2018 CT scans "is probably not a catheter, but is more likely to represent bone cement" that embolized to the patient's lungs.
In opposition to the NYU defendants' motion, the plaintiffs submitted only an attorney's affirmation, in which counsel argued that, by submitting the South Nassau records containing Dr. Silfen's radiology reports, the NYU defendants defeated their own attempts to establish a prima facie showing of entitlement to judgment as a matter of law, since their own submissions revealed a triable issue of fact as to whether the object that Dr. Silfen observed on the CT scans was or was not the tip or fragment of a catheter. In reply, the NYU defendants submitted an attorney's affirmation, arguing that the plaintiffs failed to address Dr. Silfen's "retraction" of his prior conclusions. Counsel further argued that the plaintiffs failed to submit any competent or expert opinion rebutting the NYU defendants' showing that Frempong-Boadu or any NYU Langone health professional departed from good and accepted practice in the manner in which the lumbar spine surgery was performed, that anything that they did or did not do proximately caused the patient's injuries, or that the retrieval surgery was necessary.
V. SUMMARY JUDGMENT STANDARDS
It is well settled that the movant on a summary judgment motion “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992]). Once the movant meets his or her burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 N.Y.3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v Fischer Mills Condo Assn., 181 A.D.3d 448, 449 [1st Dept 2020]).
"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v Women's Natl. Republican Club, Inc., 148 A.D.3d 401,403-404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 A.D.2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet his or her burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff's case. He or she must affirmatively demonstrate the merit of his or her defense (see Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 A.D.3d 458, 462 [1st Dept 2016]).
Moreover, where a party's submission itself reveals the existence of a triable issue of fact, that party has failed to establish its prima facie entitlement to judgment as a matter of law (see Reading v Fabiano, 137 A.D.3d 1686, 1687 [4th Dept 2016]; Kimber Mfg., Inc. v Hanzus, 56 A.D.3d 615, 617 [2d Dept 2008]).
A. MEDICAL MALPRACTICE BASED ON ALLEGED DEPARTURES FROM GOOD AND ACCEPTED PRACTICE OR STANDARDS OF CARE
"To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff's injury" (Frye v Montefiore Med. Ctr., 70 A.D.3d 15, 24 [1st Dept 2009]; see Roques v Noble, 73 A.D.3d 204, 206 [1st Dept 2010]; Elias v Bash, 54 A.D.3d 354, 357 [2d Dept 2008]; DeFilippo v New York Downtown Hosp., 10 A.D.3d 521, 522 [1st Dept 2004]).
To make a prima facie showing of entitlement to judgment as a matter of law, a defendant physician moving for summary judgment must establish the absence of a triable issue of fact as to his or her alleged departure from accepted standards of medical practice (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Frye v Montefiore Med. Ctr., 70 A.D.3d at 24) or establish that the plaintiff was not injured by such treatment (see McGuigan v Centereach Mgt. Group, Inc., 94 A.D.3d 955 [2d Dept 2012]; Sharp v Weber, 77 A.D.3d 812 [2d Dept 2010]; see generally Stukas v Streiter, 83 A.D.3d 18 [2d Dept 2011]). To satisfy the burden, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v Noble, 73 A.D.3d at 206; Joyner-Pack v Sykes, 54 A.D.3d 727, 729 [2d Dept 2008]; Koi Hou Chan v Yeung, 66 A.D.3d 642 [2d Dept 2009]; Jones v Ricciardelli, 40 A.D.3d 935 [2d Dept 2007]). If the expert's opinion is not based on facts in the record, the facts must be personally known to the expert and, in any event, the opinion of a defendant's expert should specify "in what way" the patient's treatment was proper and "elucidate the standard of care" (Ocasio-Gary v Lawrence Hospital, 69 A.D.3d 403, 404 [1st Dept 2010]). Stated another way, the defendant's expert's opinion must "explain 'what defendant did and why'" (id., quoting Wasserman v Carella, 307 A.D.2d 225, 226 [1st Dept 2003]). Moreover, as noted, to satisfy his or her burden on a motion for summary judgment, a defendant must address and rebut specific allegations of malpractice set forth in the plaintiffs bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043 [2d Dept 2010]; Grant v Hudson Vai. Hosp. Ctr., 55 A.D.3d 874 [2d Dept 2008]; Terranova v Finklea, 45 A.D.3d 572 [2d Dept 2007]).
Once satisfied by the defendant, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit or affirmation attesting to a departure from accepted medical practice and/or opining that the defendant's acts or omissions were a competent producing cause of the plaintiffs injuries (see Roques v Noble, 73 A.D.3d at 207; Landry v Jakubowitz, 68 A.D.3d 728 [2d Dept 2009]; Luu v Paskowski, 57 A.D.3d 856 [2d Dept 2008]). Thus, to defeat a defendant's prima facie showing of entitlement to judgment as a matter of law, a plaintiff must produce expert testimony regarding specific acts of malpractice, and not just testimony that contains "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice" (Alvarez v Prospect Hosp., 68 N.Y.2d at 325; see Frye v Montefiore Med. Ctr., 70 A.D.3d at 24). In most instances, the opinion of a qualified expert that the plaintiff's injuries resulted from a deviation from relevant industry or medical standards is sufficient to preclude an award of summary judgment in a defendant's favor (see Murphy v Conner, 84 N.Y.2d 969, 972 [1994]; Frye v Montefiore Med. Ctr., 70 A.D.3d at 24).
Generally, "'[e]xpert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause'" (McAlwee v Westchester Health Assoc., PLLC, 163 A.D.3d 549, 551 [2d Dept 2018], quoting Burns v Goyal, 145 A.D.3d 952, 954 [2d Dept 2016]). Thus, where a moving defendant in a medical malpractice action makes a prima facie showing that he or she did not depart from good and accepted practice, or that the treatment rendered to the plaintiff did not cause or contribute to the plaintiff's injuries, the plaintiff, to defeat summary judgment, must submit an expert affirmation or affidavit in opposition; a plaintiff's failure to submit such an expert affirmation or affidavit under such circumstances usually requires the court to award summary judgment to the moving defendant (see Bethune v Monhian, 168 A.D.3d 902, 903 [2d Dept 2019]; Koster v Davenport, 142 A.D.3d 966, 969 [2d Dept 2016]; Whitnum v Plastic & Reconstructive Surgery, P.C., 142 A.D.3d 495, 497 [2d Dept 2016]; Roques v Noble, 73 A.D.3d at 207; Bailey v Owens, 17 A.D.3d 222, 223 [1st Dept 2005]; cf. Williams v Sahay, 12 A.D.3d at 368 [unsworn affidavit of unnamed expert that was not affirmed under the penalties for perjury is insufficient to raise triable issue of fact as to defendants' alleged malpractice]). Nonetheless,
"[w]idespread consensus exists . . . that a narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the plaintiff's body"(Kambat v St. Francis Hosp., 89 N.Y.2d 489, 496 [1997]; see Prosser and Keeton, Torts § 40, at 256-257 [5th ed]).
The initial issue that must be determined on this motion is whether the NYU defendants made a prima facie showing that the object seen by Dr. Silfen on the 2018 CT scans was not a catheter fragment or tip, which would constitute a foreign object, but was some other material, such as bone cement, that was intended permanently to be placed in the patient's body. In this regard, the NYU defendants' own submissions, which included unsworn radiology reports by Dr. Silfen and others that had been included in the South Nassau hospital records, suggested that the object may have been a broken catheter fragment or tip. Unsworn medical reports, however, have no evidentiary value on a motion for summary judgment, as they do not constitute proof in admissible form (see Nazario v St. Barnabas Hosp., 34 A.D.3d 345, 346 [1st Dept 2006]; Doyle v Health Care Plan, Inc., 245 A.D.2d 1018, 1018 [4th Dept 1997]; Sledziewski v Cioffi, 137 A.D.2d 186, 189 [3d Dept 1988]). Hence, these unsworn reports, standing alone, do not constitute an evidentiary admission by the NYU defendants that the object indeed may have been a catheter tip or fragment. Moreover, although hospital records that include diagnostic reports that are properly certified, and which are germane to a patient's diagnosis and treatment, do constitute admissible business records (see CPLR 4518[c]; Moran v Demarinis, 152 A.D.2d 546, 547 [2d Dept 1989]; Porcelli vZapparo, 140 A.D.2d 423, 423 [2d Dept 1988]), the South Nassau records submitted by the NYU defendants were not certified and, hence, inadmissible (see Sherrod v Mount Sinai St. Luke's, 204 A.D.3d 1053, 1057 [2d Dept 2022]) either to establish a fact or to constitute an admission of a fact.
Nonetheless, inasmuch as Dr. Silfen, in the affirmation that he submitted on behalf of the NYU defendants, expressly confirmed that he made and electronically signed those reports, and previously had come to the conclusion that the object that he observed on the CT scans probably or apparently was a catheter fragment or tip, the NYU defendants have submitted evidentiary facts constituting an admission that the object apparently was a catheter fragment or tip. In light of the foregoing, as well as the general rule that an expert such as Dr. Sciubba may not rely on disputed fact when rendering an opinion (see Reading v Fabiano, 137 A.D.3d at 1687; Re/ss v Sayegh, 123 A.D.3d 787, 789 [2d Dept 2014]), the court concludes that there are triable issues of fact as to whether the object seen on the CT scans was a catheter fragment or some other material, such as bone cement.
There is no merit to the NYU defendants' contention that Dr. Silfen's alleged "retraction" of his prior opinion permitted them to establish their prima facie entitlement to judgment as a matter of law. The court notes that Dr. Silfen did not opine, within a reasonable degree of medical certainty, that the object on the scans was in fact bone cement. Rather, as with his prior opinion that the object was probably or assumed to be a catheter fragment or tip, he qualified his new opinion by stating that the object "may not" be a catheter fragment or tip and is "probably" bone cement. Although Dr. Silfen provided an explanation in his affirmation as to why he now believes the object was probably bone cement, where, as here, an affiant retracts a prior statement, "the credibility of th[e] explanation presents an issue of fact sufficient to defeat summary judgment" (Pesa v Yoma Dev. Group, Inc., 18 N.Y.3d 527, 533 [2012]) on the relevant issue in dispute, which here involves the question of whether the object that Dr. Silfen observed was a catheter fragment or tip or bone cement.
The NYU defendants also failed to establish their prima facie entitlement to judgment as a matter of law on the issue of whether the presence of the object in the patient's artery, and its embolization into her lungs, proximately caused or contributed to any compensable injury. Dr. Sciubba opined that the presence of the object never caused any symptoms in the patient, that she is at very low risk for further medical problems, that her fainting episodes were not caused by or correlated with the presence of the object, and that the retrieval surgery was not necessary to rectify any medical problems or symptoms, but was an elective procedure that the patient insisted on undergoing. He further opined, based in part on Dr. Petrossian's deposition testimony, that any further attempts to retrieve the object were contraindicated. In opposition to that showing, although the plaintiffs submitted no expert affirmation or affidavit contradicting Dr. Sciubba's opinions, they pointed to Dr. Petrossian's deposition testimony, in which he asserted that, based on Dr. Silfen's radiology reports, the retrieval surgery was indicated, and they noted that Dr. Petrossian never asserted that the procedure was contraindicated. Where a patient undergoes additional surgery subsequent and related to his or her initial treatment for a medical condition, the pain and suffering caused by that surgery is a compensable injury (see generally Boinoff v Riverbay Corp., 245 A.D.2d 4, 5 [1st Dept 1997]; cf. Williams v Bright, 230 A.D.2d 548, 556 [1st Dept 1997] [injured plaintiff must be permitted to explain to jury why he or she elected to undergo or forego medical treatment]). Inasmuch as the patient's desire to undergo retrieval surgery was only one factor in the ultimate determination to proceed with that surgery, and the NYU defendants submitted expert testimony that there was a reasonable medical basis upon which Dr. Petrossian decided to perform the operation, their submissions reveal the existence of a triable issue of fact as to whether their alleged negligence proximately caused the patient to undergo the retrieval surgery and, hence, whether they proximately caused an injury to her.
Hence, that branch of the NYU defendants' motion seeking summary judgment dismissing the medical malpractice cause of action insofar as asserted against them must be denied.
B. LACK OF INFORMED CONSENT
To establish a lack of informed consent cause of action, the plaintiffs will be required to adduce evidence showing that (1) the NYU defendants failed to disclose information as to the risks and benefits of, and alternatives to, the procedure that would and should have been disclosed by a reasonable medical practitioner, (2) a reasonably prudent person in the patient's position would not have undergone the treatment had that person been fully informed, and (3) the lack of informed consent was a proximate cause of the patient's injury (see King v Jordan, 265 A.D.2d 619, 620 [3d Dept 1999]; Public Health Law § 2805-d[1]). "'[T]his showing of qualitative insufficiency of the consent [is] required to be supported by expert medical testimony'" (King v Jordan, 265 A.D.2d at 260, quoting Hylick v Halweil, 112 A.D.2d 400, 401 [2d Dept 1985]; see CPLR 4401-a; Gardner v Wider, 32 A.D.3d 728, 730 [1st Dept 2006]).
The NYU defendants established, prima facie, that the consent that they obtained from the patient was fully informed and qualitatively sufficient, and they adduced evidence that the patient, herself a trained nurse, agreed that the consent was sufficient. In opposition, the plaintiffs did not submit an expert affirmation or affidavit opining that the consent was qualitatively insufficient. Hence, the NYU defendants are entitled to summary judgment dismissing the lack of informed consent cause of action insofar as asserted against them (see Martin v Silver, 170 A.D.3d 505, 505 [1st Dept 2019]).
C. NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION
The NYU defendants demonstrated that they neither "knew, [n]or should have known," of their employees' "propensity for the sort of conduct which caused the [patient's] injury" (Sheila C. v Povich, 11 A.D.3d 120, 129-130 [1st Dept 2004]; see Kuhfeldt v New York Presbyt./Weill Cornell Med. Ctr., 205 A.D.3d 480, 481-482 [1st Dept 2022]). Inasmuch as the plaintiffs did not address this issue in their opposition papers, they failed to raise a triable issue of fact in opposition to the NYU defendants' prima facie showing in this regard. Hence, that branch of the NYU defendants' motion seeking summary judgment dismissing the negligent hiring, training, supervision, and retention cause of action insofar as asserted against them must be granted.
D. LOSS OF SPOUSAL CONSORTIUM
By notice dated January 4, 2022, the plaintiff David Fritzman voluntarily discontinued his cause of action to recover for loss of spousal consortium.
VI. CONCLUSION
Accordingly, it is,
ORDERED that the motion of the defendants Anthony Frempong-Boadu, M.D., and NYU Langone Health System Tisch Hospital for summary judgment dismissing the complaint insofar as asserted against them is granted only to the extent that they are awarded summary judgment dismissing the lack of informed consent cause of action, the negligent hiring, training, supervision, and retention cause of action, and the loss of spousal consortium cause of action insofar as asserted against them, those causes of action are dismissed insofar as asserted against those defendants, and the motion is otherwise denied.
This constitutes the Decision and Order of the court.