Plaintiffs appeal from the order of the Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered February 21, 2008, which granted the motion of defendant Dr. Madhavarao Subbaro for summary judgment dismissing the complaint as against him.
The opinion of the court was delivered by: Nardelli, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Eugene Nardelli, J.P., John T. Buckley, Karla Moskowitz, Dianne T. Renwick, JJ.
The threshold issue is the extent of an anesthesiologist's postoperative duties to his patient after a procedure which took place in a doctor's office, but required the patient to remain in the office overnight.
Plaintiff's decedent, Kay Cregan, died on March 17, 2005, at the age of 42, from complications resulting from plastic surgery performed by defendant Michael E. Sachs in his office in New York. Defendant Dr. Madhavarao Subbaro provided anesthesiologic services for the surgery.
The decedent, who lived in Ireland, had contacted Dr. Sachs after hearing publicity about him, and they met in Ireland to discuss the procedures she was interested in having. They agreed that Dr. Sachs would perform five procedures: facial cervical reconstruction (face lift), bilateral upper/lower eyelid blepharaoplasty; nasal septal reconstruction; upper lower lip augmentation, and chin augmentation. Ms. Cregan came to the United States for the surgery on March 14, 2007, the surgery was performed the same day, and she died three days later in St. Luke's Hospital.
At one time Dr. Sachs had been Chairman of the Department of Facial Plastics at New York Eye and Ear Infirmary, but his relationship with New York Eye and Ear terminated in 2001, and he has not had operating privileges with any hospital since then. In 2004 the New York State Department of Health charged that he had committed misconduct through negligent practice of medicine on repeated occasions between May 1985 and December 1993. After he agreed to the charge his medical license was placed on probation for a period of three years. Dr. Sachs did not tell Ms. Cregan that his license was on probation or that he had been sued about 30 times by patients upon whom he performed facial surgery.
Co-defendant Dr. Subbaro is a board-certified anesthesiologist who, since about 1997, has provided anesthesia services for plastic surgeons who perform surgery in private offices. Starting in about 2003, Dr. Subbaro worked for Dr. Sachs about three or four days per month, for which he was paid $2,500 per day, regardless of how many patients he saw. On some days he saw as many as five or six patients, and was "[n]ot too sure" if it could be as many as ten.
On the date of Ms. Cregan's surgery, Dr. Subbaro worked on seven or eight patients, including a nasal reconstruction and several smaller procedures. He started the anesthesia for Ms. Cregan at 6:00 p.m., and the operation lasted about three hours, from 6:15 p.m. until 9:10 p.m. He stood to the right side of the patient throughout the operation administering agents. During the operation bleeding resulted from the reconstruction of the nasal septum, as well as the other procedures.
Dr. Sachs left the office a few minutes after the surgery ended. Dr. Subbaro testified that he was "in and out" of the recovery room from 9:15 until 10:30 or 11:00, when he left. The recovery room nurse, defendant Susan Alonzo-Francisco, believed that Dr. Subbaro left shortly after the operation ended, sometime after Dr. Sachs, at around 9:30 p.m.
After the operation, Ms. Cregan was bandaged while in a drowsy state, and was moved to the adjacent recovery room. Dr. Sachs testified that moving the patient is generally the "province of the anesthesiologist and the nurses." Ms. Cregan and another patient were watched in the recovery room that night by nurse Alonzo-Francisco, who was retained by Dr. Sachs for evening work on occasion, and was paid by him on a per diem basis.
Dr. Subbaro testified that, before he left, nurse Alonzo-Francisco told him the patient was doing well and was comfortable. He himself spoke to the patient before he left the office, when she was groggy but able to answer and she said she was fine. Dr. Subbaro's only postoperative note indicated that the patient was "recovering, stable, sleepy" and that her oxygen saturation was 97 percent, heart rate 70, and blood pressure 100/61. He said that, before leaving, he "made sure" the nurse had his telephone numbers and told her to call him if she needed him. The nurse testified ...