The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff commenced this action on April 8, 2008 against Michael Aronis, MD, Theodore M. Petkov, MD, Wilson Memorial Regional Medical Center, and United Health Services asserting negligence in their care and treatment of the deceased, Edward E. Miller. The thrust of Plaintiff's claims is that Mr. Miller's care providers failed to order a Computerized Tomography ("CT") scan of his head and neck afer Mr. Miller was injured in a rollover motor vehicle accident, which scan purportedly would have revealed multiple cerebral infarcts and a fracture of the C-3 transverse foramen. Plaintiff asserts that Mr. Miller's death was caused because these injuries were left undiagnosed.
Defendants United Health Services Hospitals Inc. and Wilson Memorial Regional Medical Center ("Defendants")*fn1 have moved for partial summary judgment seeking to dismiss the claims asserting: (1) negligence on the part of Wilson Memorial Regional Medical Center for granting privileges to Dr. Petkov and Dr. Aronis; and (2) negligence on the part of Wilson Memorial Regional Medical Center for the conduct of its employee nurses. Plaintiff has conceded the first prong of the motion, see Plt. Mem. L., p. 12,*fn2 but has opposed the second prong. See id. For the reasons that follow, the second prong of the motion is denied.
It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56( c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in her favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
Edward E. Miller ("Miller") was involved in a tractor trailer roll-over motor vehicle accident at about 2:30 A.M. on January 8, 2007. Emergency medical services responded to the scene. The emergency medical services personnel's notes indicated that, at the scene of the accident, Miller was responsive and had lacerations to the left side of his head, pain in his ribs and left shoulder, lacerations on the right side of his head, and pain with swelling on the left side of his neck. Emergency medical services personnel placed a cervical collar ("C-collar") on Miller, placed him on a backboard, and transported him by ambulance to Wilson Memorial Regional Medical Center
At approximately 3:44 A.M., Miller was seen in the emergency room by Nurse Jacobs for the initial triage assessment. Nurse Jacobs noted that Miller was involved in a tractor trailer roll-over motor vehicle accident and that his injuries included right side rib pain with movement, left shoulder pain, and right sided head laceration. Nurse Jacobs noted no loss of consciousness, no headache, neck pain, back pain, numbness or weakness.
Miller was seen by Dr. Petkov at 6:07 A.M. Dr. Petkov removed Miller's cervical collar ("C-collar") and backboard at 6:10 A.M. Dr. Petkov testified at his deposition that Miller was irate and that the C-collar was removed because Miler claimed he was going to remove it himself. The nursing progress notes include no mention of the rationale for the removal of the C-collar.
When seen by Dr. Petkov, Miller complained of injuries to the face, chest and shoulder and of moderate pain. Dr. Petkov noted that Miller had sustained a blow to the head but that there was no neck pain, loss of consciousness or seizure. However, Dr. Petkov noted that Miller had numbness on the left side of his neck and left shoulder area and complained of severe, sharp, stabbing, pleuritic right-sided chest pain. Although not noted in the medical record, Dr. Petkov testified at his deposition that he did recall some tenderness on the left side of the neck, but that he did not believe it was significant.
Dr. Petkov ordered x-rays of the cervical spine ("c-spine") and left shoulder, which were read as "negative." He also ordered x-rays of the chest, whichrevealed fractures of the 7th, 8th, 9th and 10th right ribs which diagnosis was confirmed by a chest CT. The CT of the abdomen showed no acute disease.
Dr. Petkov requested a general surgical consult from Dr. Aronis with regard to trauma admission. Dr. Aronis saw Miller at 11:30 A.M. Dr. Aronis noted that Miller complained of right-sided chest pain and some numbness and tingling on the left side of his neck, but with no motor function losses in his upper extremity. Dr. Aronis also noted that Miller's neck was supple with normal range of motion and no bony abnormality, and that he had reviewed a CT scan of the head and neck which was otherwise benign.*fn3 Dr. Aronis indicated that he does not recall being concerned that Miller had sustained an occult injury to his cervical spine because the C-collar had been removed and that an occult injury would have had to have been ruled out when the C-collar was removed.
Miller was moved to a room on a cardiac monitor and was placed on "hold status" in the ER. An admission database was completed by Nurse Rose. A notation was made on the assessment that Miller was experiencing a new onset of weakness. There is no documentation that ...