Opinion
04-16-2024
Humberto ALMANZAR etc., Plaintiff-Respondent, v. Reginald ANKRAH et al., Defendants-Appellants, Henry James Behar, M.D., et al., Defendants.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for appellants. Kelner & Kelner, New York (David A. Stanigar of counsel), for respondent.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for appellants.
Kelner & Kelner, New York (David A. Stanigar of counsel), for respondent.
Kern, J.P., Singh, Scarpulla, Mendez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about February 6, 2023, which denied defendants Reginald Ankrah, CRNA, Eugene Ornstein, M.D., and The New York Presbyterian Hospital’s (defendants) motion for summary judgment dismissing the complaint against them, unanimously affirmed, without costs. Although defendants met their prima facie entitlement to summary judgment, plaintiff’s experts raised issues of fact as to whether defendants injured plaintiff’s decedent’s inferior vena cava during the insertion of an epidural, causing her death days later (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002]; Cregan v. Sachs, 65 A.D.3d 101, 108–109, 879 N.Y.S.2d 440 [1st Dept. 2009]). Contrary to defendants’ assertions, plaintiff’s experts’ opinions were not speculative, as they were based upon record facts, specifically the autopsy report and accompanying photographs of the decedent’s inferior vena cava (cf. Montilla v. St. Luke’s–Roosevelt Hosp., 147 A.D.3d 404, 407, 46 N.Y.S.3d 93 [1st Dept. 2017]). Nor were plaintiff’s experts’ opinions based on new theories of liability (cf. Rotante v. New York Presbyt. Hosp.-N.Y. Weill Cornell Med. Ctr., 175 A.D.3d 1142, 1143, 107 N.Y.S.3d 289 [1st Dept. 2019]). Accordingly, the issue of the cause of the decedent’s death should be determined by a jury (see Lo Presti v. Hospital for Joint Diseases, 275 A.D.2d 201, 204, 712 N.Y.S.2d 110 [1st Dept. 2000]).
We have considered defendants’ remaining arguments and find them unavailing.