appeal from the orders of Supreme Court, New York County
(Joan B. Lobis, J.), entered September 9, 2015, which,
insofar as appealed from, denied defendants Mark Weller,
M.D.'s and the New York and Presbyterian Hospital's
motions for summary judgment dismissing the medical
malpractice cause of action as against them.
Marulli, Lindenbaum & Tomaszewski, LLP, New York (Gerard
J. Marulli of counsel), for Mark Weller, M.D., appellant.
McAloon & Friedman, P.C., New York (Gina Bernardi DiFolco
of counsel), for the New York and Presbyterian Hospital,
Fitzgerald Law Firm, P.C., Yonkers (Ann B. Chase, John M.
Daly and Mitchell Gittin of counsel), for respondents.
T. Renwick, J.P. Richard T. Andrias David B. Saxe, Judith J.
Gische Troy K. Webber, JJ.
judgment pursuant to CPLR 3212 permits a defendant to dispose
of a case promptly where claims lack merit. It is not
intended to deprive a plaintiff of the right to adjudicate
claims where factual issues exist. In this case, we adhere to
the rule that summary judgment is not authorized in a medical
malpractice action where the parties adduce conflicting
opinions of medical experts (see Fernandez v
Moskowitz (85 A.D.3d 566');">85 A.D.3d 566 [1st Dept 2011]). Contrary to
the dissent's conclusion, the opinions of plaintiffs'
experts were based upon facts in evidence and were not
conclusory or otherwise insufficient.
medical malpractice case relates to the care and treatment of
plaintiff Marino Severino (Severino), aged 61, who underwent
gallbladder surgery at defendant hospital on May 17, 2008.
Defendant Dr. Weller was the anesthesiologist for the
procedure and postoperatively. In the hours following the
surgery, Severino suffered cardiopulmonary arrest, resulting
in severe anoxic brain injury, leaving him permanently
ventilated in a near-vegetative or vegetative state.
Plaintiffs' malpractice claims, which relate to the
postoperative management of Severino's care, allege
failure to properly monitor with continuous pulse oximetry,
failure to recognize that he was not responding appropriately
to opiate pain medication, and failure to timely call a code
and commence resuscitation after his witnessed arrest.
disagree with plaintiffs to the extent they argue that
defendants did not meet their initial burden of coming
forward with evidence showing the absence of any material
issue of fact (see Sisko v New York Hosp., 231
A.D.2d 420, 422 [1st Dept 1997], lv dismissed 89
N.Y.2d 982 ). Defendants relied on expert affirmations
by licensed physicians who are board certified in, inter
alia, anesthesiology and surgery. The experts opined that
there were no departures from the standard of care with
respect to the treatment of Severino and that any alleged act
or failure to act by defendants did not cause or contribute
to Severino's injuries. Specifically, the experts opined
that there was no basis to transfer Severino to an intensive
care unit since his vital signs were stable. The experts also
opined that Severino's non-responsive condition was not
attributable to the doses of morphine, explaining that the
limited amounts of morphine received by Severino were
insufficient to cause him to become nonresponsive and that
there were no signs that he had any adverse reaction to the
morphine. Rather, the experts opined that Severino's
cardiorespiratory arrest was a sudden and unpredictable
event. Finally, the experts opined that Severino was timely
and properly resuscitated, ventilated, medicated, and
intubated in response to his cardiac arrest.
the burden shifted to plaintiffs to produce evidence in
admissible form sufficient to establish the existence of a
triable issue of fact (see Sisko, 231 A.D.2d at
422). We find that the affirmations of plaintiffs'
experts were sufficient to preclude summary judgment because
they raised three potential departures from accepted
standards that could have proximately caused Severino's
plaintiffs' experts opined that defendants departed from
accepted standards insofar as they failed to identify several
red flags of an adverse morphine reaction and, as a result,
prematurely discharged Severino to the surgical floor, where
he was no longer under continuous pulse oximetry monitoring.
The experts stated that the alleged red flags included slow
wake-up time, persistent slurred speech, drowsiness, low
blood pressure, rapid and shallow breathing, and oxygen
saturation of only 95%.
defendants argue, and the dissent agrees, that the purported
red flags did not exist, as a factual matter, there is
evidence to support plaintiffs' experts' contentions.
For instance, Nurse Meenan, a certified registered nurse
anesthetist, testified that Severino woke up slowly, and
Nurse Choi's departure note referred to slurred speech,
rapid and shallow breathing, and blood pressure more than 20%
below the preoperative value. To the extent defendants
dispute the significance of a slow wakeup or low blood
pressure, this dispute is not properly resolved on summary
judgment (Bradley v Soundview Healthcenter, 4 A.D.3d
194 [1st Dept 2004] [conflicting expert opinions "raise
issues of fact and credibility that cannot be resolved on a
motion for summary judgment"]).
plaintiffs' experts opined that defendants departed from
accepted standards by failing to recognize that Severino was
experiencing an overdose or adverse reaction to morphine.
Defendants, however, point to their experts' opinion that
the 9 to 13 mg of morphine Severino received was not
sufficient to cause an overdose. However, one of
plaintiffs' experts opined that, although the amount of
morphine (9 to 13 mg) Severino received may not have been
excessive for a younger patient without his medical
conditions, Severino was at an increased risk of an abnormal
reaction due to his age, obesity, and ASA score of III.
defendants argue that plaintiffs cannot establish that
morphine-induced respiratory depression proximately caused
Severino's cardiac arrest. But again this is the subject
of directly conflicting expert testimony, and thus not an
appropriate issue for resolution on summary judgment.
Plaintiffs' experts both opined that the aforementioned
red flags, as well as Severino's pinpoint pupils, were
all consistent with an opioid overdose. Contrary to the
dissent's assertion, plaintiffs' experts'
reliance on the pinpoint pupils is not impermissible
"hindsight" reasoning. On the contrary, the
pinpoint pupils are cited not as an example of a red flag
that defendants failed to identify but ...