Opinion
Index No. 517005/19
07-18-2024
RAHIM ALI, Plaintiff, v. ROBERT S. TRACER, M.D., L. TSOY, R.N., P. SHIFRIN, M.D., NORTH AMERICAN PARTNERS IN ANESTHESIA, FIVE THOUSAND AVENUE K MEDICAL ASSOCIATES, P.O., GJ. SUITES AT 1901 UTICA AVENUE, MEDICAL SUITES AT 1901, BROOK PLAZA AMBULATORY SURGERY, and RONELL KIRKLEY, CRNA Defendants.
Unpublished Opinion
At an IAS Term, Part 63 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 18th day of July 2024
PRESENT: HON. ELLEN M. SPODEK, Justice
DECISION AND ORDER
Ellen M. Spodek Judge:
Papers Numbered
Notice of Motion .................................................... 221 -238, 239- 255, 256-271
Affirmations in Opposition.................... 282-289; 290-297
Replying Affidavits....................................... 298, 299
Defendant RONELL KIRKLEY, CRNA, moves pursuant to CPLR 3212 for an order granting summary judgment and dismissing the complaint against him. Defendants PAUL SHIFRIN, M.D., and NORTH AMERICAN PARTNERS IN ANSESTHEIA also move pursuant to CPLR 3212 for an order granting summary judgment and dismissing the complaints against them. Additionally, defendants L. TSOY, R.N, FIVE THOUSAND AVE K MEDICAL ASSOCIATES, P.O., GI SUITES AT 1901 UTICA AVENUE d/b/a FIVE THOUSAND AVENUE K MEDICAL ASSOCIATES. P.C., MEDICAL SUITES AT 1901 d/b/a FIVE THOUSAND AVENUE K. MEDICAL ASSOCIATES, P C., BROOK PLAZA AMBULATORY SURGERY, INC. s/h/a BROOK PLAZA AMBULATORY SURGERY move pursuant to CPLR 3212 for an order granting summary judgment and dismissing the complaints against them. Plaintiff RAHIM ALI opposes the motions.
The plaintiff, Mr. Rahim Ali, was a patient of Dr. Tracer since 20.01. Starting in 2001, the plaintiff underwent a colonoscopy and endoscopy three times, in 2001, 2008 and 2011. There was no reported problem with the three prior procedures. On March 27, 2018, plaintiff presented to Dr. Tracer with a history of peptic ulcer disease and guaiac-positive stool. Dr. Tracer ordered an endoscopy and a colonoscopy to be performed on April 9, 2018. Dr. Tracer explained the procedure to the Plaintiff and gave him preoperative instructions. Dr. Tracer explained to Plaintiff that he would be receiving fast acting anesthesia intravenously during the procedure. The plaintiff did not sign any consent forms that day, as it was customary for Dr. Tracer to have patients sign the consent forms on the day of the procedure.
On April 9, 2018, Plaintiff arrived for the procedure at Five Thousand Avenue K Medical Associates, P.O., G.I. Suites at 1901 Utica Avenue, Medical Suites at 1901. Brook Plaza Ambulatory Surgery Center ("Brook Plaza"), Plaintiff's three previous endoscopies and colonoscopies with Dr. Tracer occurred at Brook Plaza, Upon his arrival, Plaintiff signed two procedure consent forms, including a section stating the signer understood the risks associated with anesthesia. In his deposition, the plaintiff affirmed this statement and admitted he did not read the forms when signing them because he knew he had to have the procedure. After signing the forms, Nurse Tsoy took Plaintiff back to the changing area, where he provided Plaintiff with a hospital gown, asked him preoperative questions, and completed preoperative paperwork. When asked what medicine he was taking, Nurse Tsoy reported on the preoperative chart that Plaintiff was taking blood pressure medications but failed to specify which ones. Nurse Tsoy then accompanied the Plaintiff to the preoperative area, where he took the Plaintiff's vital signs and inserted an IV. The plaintiff testified that he was called into the procedure room shortly after. Once in the procedure room, Plaintiff met with certified nurse anesthetist Ronell Kirkley. CRNA Kirkley provided the anesthesia during the Plaintiff's procedure. Dr. Shifrin is an anesthesiologist who was present in Brook Plaza on April 9, 2018 but was not involved in Plaintiff's care. CRNA Kirkley testified that his customary practice was to review the forms before the procedures and confirm the signature on the forms was the patient's.
CRNA Kirkley, Dr. Tracer, and an unnamed endoscopy technician were in the procedure room. According to hospital records, the procedure took approximately 39 minutes, beginning at 11:40 am and ending at 12:19 pm. First, CRNA Kirkley sprayed benzocaine into Plaintiff's mouth and administered oxygen. Initially, CRNA Kirkley administered 50 micrograms of fentanyl, 160: milligrams of propofol, and 80 milligrams of lidocaine. Throughout the procedure, he administered more propofol: 40 milligrams at 11:55 am, 30 milligrams at 12:05 pm, and 20 milligrams at 12:10 pm. Throughout the procedure, Kirkley monitored Plaintiff's vital signs, such as heart rate, systolic and diastolic blood pressure, and respiration. Dr. Tracer completed the procedure with no complications, and CRNA Kirkley transported Plaintiff to the post anesthesia care unit ("PACU"), where he gave a short report to Nurse Tsoy stating that the procedure went as planned.
The plaintiff woke up approximately ten minutes after CRNA Kirkley brought him to the recovery room. Once the plaintiff was awake, Nurse Tsoy, according to Brook Plaza policy, transferred him to a chair and gave him juice and crackers while monitoring his vital signs. After approximately thirty minutes, Nurse Tsoy observed that Plaintiff could move his four extremities, breathe and cough freely, and had normal blood pressure and oxygen saturation. At that time, Nurse Tsoy escorted Plaintiff approximately 15 feet to the dressing room to change his clothes for discharge. Plaintiff testified that he told Nurse Tsoy that he felt dizzy. Nurse Tsoy testified that Plaintiff never told him he was dizzy or felt faint. Once in the dressing room, Nurse Tsoy retrieved Plaintiffs clothes from the locker. Nurse Tsoy asked Plaintiff if he needed help getting dressed. The plaintiff declined, and Nurse Tsoy closed the curtain and asked a medical assistant to assist the Plaintiff if he needed help. The plaintiff testified that during his last three procedures at Brook Plaza, he was unclear if someone accompanied him to the. changing room. Shortly after leaving Plaintiff to get dressed, Nurse Tsoy heard a loud noise arid found Plaintiff with his socks and underwear on the ground with his pants around his knees. The plaintiff was bleeding from the right side of his head. Plaintiff told Nurse Tsoy that he lost his balance while putting on his pants. Dr. Tracer arrived in the changing room and asked Plaintiff if he was in pain or dizzy, to which Plaintiff replied that he was fine. CRNA Kirkley and Dr. Paccione, an anesthesiologist, came to the dressing room, where they sat Plaintiff down, started intravenous fluids, cleaned the laceration on his skull, and called 911. The plaintiff had no recollection of the incident and only remembered walking into the changing room and waking up in the ambulance.
Plaintiff was transported to Kings County Hospital Center, where he received staples to close his head wound and a CT scan, which showed normal results. Plaintiff was discharged from Kings County Hospital Center with the directions to follow up with a healthcare provider in approximately one week to have the staples removed. Plaintiff testified that following the fall on April 9, 2018, he currently suffers from constant headaches and pain in his left shoulder, right knee, and lower back.
Defendant CRNA Kirkley submitted an affidavit from a board-certified anesthesiologist licensed to practice in New York. CRNA Kirkley's expert opined that CRNA Kirkley acted within the standard and care of accepted medical practice by administering the correct dosage of the anesthetics. The expert also stated that stable patients after a routine procedure, such as Plaintiffs, do not require monitoring longer than thirty minutes, as the anesthetics would have worn off by then. Additionally, the expert stated that dizziness and disorientation are such well-known consequences of anesthesia that the standard of care does not require anesthesia providers to discuss them with patients. The expert witness stated that once CRNA Kirkley brought the Plaintiff to the PACU and gave a report to Nurse Tsoy, his duty to the Plaintiff ended. CRNA Kirkley testified that at Brook Plaza, he had no duty to evaluate patients before they left the recovery room. After transferring Plaintiff to Nurse Tsoy, CRNA. Kirkley returned to the procedure room, where he provided anesthesia services to another patient. The expert opines CRNA Kirkley could not monitor the Plaintiff in the PACU while administering anesthetics in the procedure room. Furthermore, the expert opines that it is highly speculative to conclude that the Plaintiff's fall was induced by anesthesia.
Plaintiff opposed CRNA Kirkley's motion and submitted an affidavit from a board-certified anesthesiologist licensed to practice in New York and New Jersey. Plaintiff's expert opined that CRNA Kirkley departed from good and accepted standards of care. The expert testified that CRNA Kirkley deviated from the standard of care by not determining which type of blood pressure medication Plaintiff took as it could affect anesthesia. Plaintiffs expert also opined that CRNA Kirkley administered an excessive amount of propofol, which led to the fall in the dressing room. The plaintiff's expert also highlighted the Anesthesia Record signed by CRNA Kirkley and noted that the anesthesia ended two minutes before the procedure ended, which the expert notes as inaccurate, as anesthesia cannot finish before the procedure. The expert also differs in the standard of care in obtaining informed consent for the risks of receiving anesthesia. The expert concluded that the departures from good and accepted standards of care were substantial factors in Plaintiff's fall.
Defendant Dr. Shifrin submitted an affidavit from Judith Schachner, M.D. Dr, Schachner is board-certified in anesthesiology and is licensed to practice medicine in the State of New York. Dr. Schachner opines that the anesthetics CRNA Kirkley administered to Plaintiff were of the appropriate dosages. Dr. Schachner further states that monitoring a patient post-anesthesia is a function delegated to the nurses and not the anesthesia providers. The expert witness highlights that Dr. Shifrin played no role in the care Plaintiff received at Brook Plaza, and therefore, a doctor-patient relationship was never established. Because CRNA Kirkley was the assigned anesthesia provider and not Dr. Shifrin, Dr. Schachner states that Dr. Shifrin did not owe Plaintiff a duty of care. The expert witness states that Plaintiff's anesthetic care was within the good and accepted standards of care and was not the proximate cause of Plaintiffs injuries.
Plaintiff opposed Dr. Shifrin's motion and submitted an affidavit from a board-certified anesthesiologist licensed to practice in New York and New Jersey. Plaintiffs expert witness states that although Dr. Shifrin had no contact with the Plaintiff, he signed the "Anesthesiologist's History and Physical" form after the Plaintiffs procedure and Subsequent fail. The expert witness opined that Dr. Shifrin deviated from the supervisory role of anesthesiologist over CRNAs.
Defendant Nurse Tsoy submitted an affidavit from Adam 1. Levine, M.D. Dr. Levine is a board-certified anesthesiologist licensed to practice in New York; Dr. Levine opines that while Plaintiffs fall was unfortunate, it was neither foreseeable nor preventable, and Defendants were not the proximate cause. Dr. Levine states that it was Dr. Shifrin and CRNA Kirkley's responsibility to provide the Plaintiff with anesthesia services, not Nurse Tsoy. Dr. Levine also noted that the improper dosage claims made by Plaintiff are unrelated to Nurse Tsoy, as he was uninvolved with that aspect of Plaintiffs care. Dr Levine states that Nurse Tsoy correctly used Aldrete's scoring system to determine when Plaintiff could be transferred from the PACU. According to Nurse Tsoy's chart, Plaintiff scored a 9/10 on the Aldrete score within five minutes of entering the PACU and remained there for an additional 25 minutes, which signified to an expert that he received exemplary care. Nurse Tsoy offered to help Plaintiff get dressed, and when he declined, Nurse Tsoy closed the curtain to give Plaintiff privacy and alerted a nearby unnamed medical assistant to keep an eye on Plaintiff. Dr. Levine opines Plaintiff had fully recovered from the effects of the anesthesia when he tripped on his pants and fell. Dr. Levine's professional opinion was that the Plaintiff did not fall because of Nurse Tsoy'S negligence.
Plaintiff opposed Nurse Tsoy's motion and submitted an affidavit from a Registered Nurse licensed to practice Nursing in New York. Plaintiff's expert witness opined that Nurse Tsoy deviated from standards of care by failing to monitor Plaintiff properly and allowing him to change unattended in the changing room. The expert opines that Plaintiff's time in the PACU was too short, and Nurse Tsoy deviated from accepted standards by not providing an adequate neuromuscular evaluation. The expert witness also stated that Nurse Tsoy should have told the Plaintiff to change while sitting down. There is also conflicting testimony from Plaintiff and Nurse Tsoy regarding whether Plaintiff told Nurse Tsoy he was dizzy while walking from the PACU to the changing room. Additionally, Plaintiff submitted an affidavit from a board-certified Anesthesiologist stating that Nurse Tsoy deviated from the accepted standards by not performing a neuromuscular assessment or evaluation, which the Aldrete scale fails to address.
For a summary judgment motion to dismiss a medical malpractice cause of action, the defendant has the prima facie burden of establishing that there was no departure from good and accepted medical practice, or, if there was a departure, the departure was not the proximate cause of the alleged injuries. Brinkley v. Nassau Health Care Corp., 120 AD.3d 1287 (2d Dept. 2014); Fritz v Burman; 107 AD.3d 936, 940; 968 (2d Dept 2013). "In a medical malpractice action, a plaintiff, in opposition to a defendant physician's summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was riot negligent in treating plaintiff so. as to demonstrate the existence of a triable. issue of fact'' Alvarez v. Prospect Hosp., 68 N.Y.2d 324 (1986). ''To succeed in a medical malpractice action, the plaintiff must show that a defendant deviated from accepted standards of medical practice and that this deviation proximately caused the plaintiff's injury." Contreras v Adeyemi 102 A.D.3d 720, 721 (2d Dept. 2013); Gillespie v New York Hosp. Queens, 96 A.D.3d 901, 902 (2d Dept. 2012). "When a defendant in a medical malpractice action demonstrates the absence of any material issues, of fact with respect to at least one of those elements, summary judgment dismissing the action should eventuate unless the plaintiff raises a triable issue of fact in opposition" Schwartz v Partridge, 179 A.D.3d 963, 964 (2d Dept 2020) (internal citations omitted).
CRNA Kirkley's Motion
Upon review of the facts and exhibits, there are issues of fact regarding CRNA Kirkley's care of the Plaintiff. "Summary judgment may not be awarded in a medical malpractice action where the parties adduce conflicting opinions of medical experts" McKenzie v. Clarke, 77 A.D.3d 637, 638 (2d Dept. 2010); see Adjetey v. New York City Health & Hosps. Corp., 63 A.D.3d 865 (2d Dept. 2009). The expert witnesses the Plaintiff and Defendant provided conflict on their opinion of CRNA Kirkley's treatment and whether it was a departure from the good and accepted standard of care. The Plaintiff's expert witness states that CRNA Kirkley did not correctly evaluate the Plaintiff after the procedure, and significant inconsistencies on the medical chart highlight CRNA Kirkley's alleged departure from the standard of cafe. The expert also opines that CRNA Kirkley had a duty within the standard of care to evaluate the Plaintiff before he was discharged from the PACU.
Additionally, the Plaintiff's expert witness opines and states that CRNA Kirkley gave Plaintiff inappropriate dosages of propofol, and the excess of the sedation is what caused Plaintiff to fall in the changing room.
There is no question of fact as to informed consent obtained by CRNA Kirkley from Plaintiff about the risks of anesthesia. Plaintiff stated that he signed the form because he knew he needed the procedure. In addition, he was aware of the risks of the procedures having undergone them three times previously.
As there are questions of fact regarding Plaintiff's treatment from CRNA Kirkley; his motion for summary judgment must be denied.
Dr. Shifrin and North American Partners in Anesthesia's Motion
Upon review of the facts and exhibits, there is no triable issue of fact regarding the care Plaintiff received from Dr. Shifrin. There is no evidence that Dr. Shifrin had any contact with the Plaintiff that would have caused any injury. Plaintiff's anesthesiology care Was assigned to CRNA Kirkley, and Dr. Shifrin did not supervise the CRN As. including CRNA Kirkley. Other than signing the consent form after the procedure to complete Plaintiff s chart, Dr. Shifrin did not have contact with Plaintiff regarding his anesthesiology care, which could have resulted in his fall in the changing room. Because there is no question of facts regarding Dr. Shifrin's lack of treatment of the Plaintiff, the motion for summary judgment must be granted.
As Dr. Shifrin's motion was granted, and there, are no independent claims of liability against Dr. Shifrin's employer, North American Partners in Anesthesia, their motion for summary judgment is granted.
Nurse Tsoy's Motion
Upon review of the facts and exhibits, there are issues of fact regarding Nurse Tsoy's care of the Plaintiff. "Summary judgment may not be awarded in a medical malpractice action where the parties adduce conflicting opinions of medical experts" McKenzie v. Clarke, 77 A.D.3d 637, 638 (2d Dept. 2010); see Adjetey v. New York City Health & Hosps. Corp., 63 A.D.3d 865 (2d Dept. 2009). The expert witnesses the Plaintiff and Defendant provided conflicted on their opinion of Nurse Tsoy's treatment and whether it was a departure from the good and accepted standard of care. Nurse Tsoy's expert witness opines that Nurse Tsoy adhered to the standard of good care when he evaluated Plaintiff under the Aidrete scoring system to determine if he could be discharged from the PACU. The Plaintiff s witness opines that Nurse Tsoy deviated from the standard of care by failing to obtain the exact blood pressure medication Plaintiff was taking and to evaluate him post-procedure. There is also an issue of fact regarding the statements made by Plaintiff to Nurse Tsoy. In his deposition, Plaintiff testified that after the procedure, he told Nurse Tsoy that he was dizzy. However, in Nurse Tsoy's deposition, he stated that at no point did Plaintiff let him know that he was dizzy or felt faint. As there are questions of fact regarding Plaintiff's treatment from Nurse Tsoy, his motion for summary judgment must be denied.
Defendant Robert S. Tracer's motion for summary judgment was previously granted as unopposed on May 24, 2024.
In conclusion, CRNA Kirkley and Nurse Tsoy's motion for summary judgment is denied, and Dr. Shifrin and North American Partners in Anesthesia's motion for summary judgment is granted.
The caption shall be amended as follows:
RAHIM ALI, Plaintiff,
v.
L. TSOY, R.N., FIVE THOUSAND AVENUE K MEDICAL ASSOCIATES, P.C., G.I. SUITES AT 1901 UTICA AVENUE, MEDICAL SUITES AT 1901, BROOK PLAZA AMBULATORY SURGERY, and RONELL KIRKLEY, CRNA Defendants.
This constitutes the decision and order of the Court.