NEW YORK HOSPITAL QUEENS, UNION HEALTH

Transcription

1 At IAS Part 6, of the Supreme Court of the State of New York, held in and for the County of New York, 71 Thomas Street, on the _ day of, 2018 Room 205, New York, New York, 10013, PRESENT: Hon. Eileen A. Rakower, J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index #: /14 X JULIO PEREZ AND ANGELA ROMERO, -against- Plaintiffs, ORDER TO SHOW CAUSE NEW YORK HOSPITAL QUEENS, UNION HEALTH CENTER, INC., THE NEW YORK EYE & EAR INFIRMARY, EDWARD KWAK, M.D., HAI SUN SHI PARK, M.D., IN JANG, M.D., ANJALI BHARATI, M.D., and ROBERT MAX DYKSTERHOUSE, M.D. Defendants. X Upon the reading and filing annexed affirmation of Amy T. Jen, Esq. dated June 14, 2018, and upon all prior pleadings and proceedings heretofore had herein, it is hereby, ORDERED, that the plaintiffs, JULIO PEREZ and ANGELA ROMERO, or their counsel, appear and show cause at IAS Part 6, Room 205 of this Court, on the day of, 2018 at 9:30 a.m., at the courthouse located at 71 Thomas Street, New York, New York, why an Order should not be granted in favor of the defendant, IN JANG, M.D., through his attorneys, for the following relief: (a) Pursuant to CPLR 3212, granting summary judgment dismissing all claims, in their entirety, with prejudice against the defendant, DR. JANG, upon the grounds that there are no triable issues of fact, and thereby warranting direction of judgment in favor of the moving defendant, as a matter of law; the caption the name of the (b) Amending by deleting moving defendant, DR. JANG;

2 (c) Directing the Clerk of the Court to enter judgment accordingly; and, (d) For such other and further relief as this Court deems just and proper. AND IT IS FURTHER ORDERED that service of a copy of this Order to Show Cause together with the papers upon which it is granted, via electronic filing shall be deemed good and sufficient service upon the following: 1. Attorneys for the plaintiffs, JULIO PEREZ and ANGELA ROMERO, Gersowitz Libo & Korek, P.C., 111 Broadway, 12th PlOOr, New York, New York 10006; 2. Attorneys for the defendants, UNION HEALTH CENTER, INC., d/b/a UNITE HERE HEALTH CENTER, INC. s/h/a UNION HEALTH CENTER, INC. and HAISUN S. PARK, M.D. s/h/a HAI SUN SHI PARK, M.D., Kaufman Borgeest & Ryan, LLP, 120 Broadway, 14th Floor, New York, New York, 10271; 3. Attorneys for the defendants, EDWARD KWAK, M.D. and THE NEW YORK EYE & EAR INFIRMARY, Shaub Ahmuty Citrin & Spratt, LLP, 77 Water Street, New York, New York, 10005; 4. Attorneys for the defendants, NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS s/h/a NEW YORK HOSPITAL QUEENS and ANJALI BHARATI, M.D., Aaronson Rappaport Feinstein & Deutsch, LLP, 600 Third Avenue, New York, New York, 10016; and, 5. Attorneys for the defendant, ROBERT DYKSTERHOUSE, M.D. s/h/a ROBERT MAX DYKSTERHOUSE, M.D., Koster Brady & Nagler, LLP, One Whitehall Street, New York, New York ENTER: Hon. Eileen A. Rakower, J.S.C.

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X JULIO PEREZ AND ANGELA ROMERO, Index #: /14 Plaintiffs, -against- AFFIRMATION IN SUPPORT OF NEW YORK HOSPITAL QUEENS, UNION HEALTH ORDER TO SHOW CENTER, INC., THE NEW YORK EYE & EAR CAUSE INFIRMARY, EDWARD KWAK, M.D., HAI SUN SHI PARK, M.D., IN JANG, M.D., ANJALI BHARATI, M.D., and ROBERT MAX DYKSTERHOUSE, M.D. Defendants. X AMY T. JEN, an attorney duly licensed to practice law in the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am an associate of the law firm of DeCORATO, COHEN, SHEEHAN, & FEDERICO, LLP, attorneys for the defendant, IN JANG, M.D. (hereinafter, "DR. JANG"), in the above-captioned matter. 2. I am fully familiar with the facts and circumstances of this action based upon a review of the file maintained by this office during the course of this litigation. 3. I submit this affirmation in support of the within motion for an order: (a) pursuant to CPLR 3212, granting summary judgment dismissing all claims, in their entirety, with prejudice against the defendant, DR. JANG, upon the grounds that there are no triable issues of fact, and thereby warranting direction of judgment in favor of the moving defendant, as a matter of law; (b) amending the caption by deleting the name of the moving defendant, DR. JANG; (c)

4 directing the Clerk of the Court to enter judgment accordingly; and, (d) for such other and further relief as this Court deems just and proper. 4. No prior application for this same relief has been made. INTRODUCTION 5. This action sounds in claims of medical malpractice against the defendants surrounding the care and treatment of the plaintiff, JULIO PEREZ. Co-plaintiff, ANGELA ROMERO asserts a derivative claim for a loss of services and consortium. 6. This motion is submitted because the medical care and treatment rendered by DR. plaintiff' JANG to the plaintiff, JULIO PEREZ (hereinafter, "the plaintiff"), was done in a manner within the accepted standards of medical practice. Further, no act or omission attributable to DR. JANG caused or contributed to the plaintiff's alleged injuries. 7. On June 29, 2012, the plaintiff underwent surgical repair of nasal vestibular stenosis, a septoplasty, and bilateral inferior turbinate reduction as a patient of the NEW YORK EYE & EAR INFIRMARY. DR. JANG was the plaintiff's anesthesiologist for the procedure. This would be the only date that DR. JANG rendered service to the plaintiff. DR. JANG had no involvement in the pre-operative management of the patient, when the patient was prescribed, instructed on the use of DDAVP (Stimate), and administered DDAVP. It is a fact that DR. JANG never ordered, never administered, and never directed anyone to administer DDAVP to the plaintiff. 8. DR. JANG'S first contact with the plaintiff occurred at the time of induction of anesthesia on June 29*.. DR. JANG'S role during the intra-operative period was to monitor the plaintiff's vitals and ensure the plaintiff was stable. DR. JANG administered an appropriate amount of IV fluids intra-operatively and the patient appropriately experienced minimal blood

5 loss. There is no dispute that when anesthesia ended, the patient was extubated without issue, and did not have any anesthetic complications. Furthermore, following the operation, the plaintiff was transferred to the PACU in stable condition. DR. JANG was the anesthesia attending while the plaintiff was in the PACU. DR. JANG ordered a standard and appropriate amount of IV fluids to be administered to the plaintiff in the PACU. DR. JANG then appropriately ensured that the plaintiff was stable and awake for discharge from the PACU, as reflected in the fact that the plaintiff achieved a post-anesthesia recovery score of 12, indicative that the patient was stable. 9. DR. JANG'S care of the plaintiff ceased upon the plaintiff's transfer out of the PACU and DR. JANG never had contact with the plaintiff again. DR. JANG was not involved in the determination of whether post-operative lab testing was needed, in the discharge of the patient from the hospital, and in providing the patient with discharge instructions. DR. JANG likewise had no involvement in the treatment of the plaintiff's hyponatremia, which occurred at a different facility, long after DR. JANG'S care of the plaintiff had ended. 10. As detailed in the affirmation of Mark Abel, M.D., a board certified physician in anesthesiology, DR. JANG, a board certified physician in anesthesiology, rendered proper care to the plaintiff at all times. (EXHIBIT "A.") DR. JANG'S care of the plaintiff was appropriate and within the standard of care. The records and testimony in this matter clearly prove that the care rendered by DR. JANG was appropriate and unrelated to the plaintiff's claimed injuries. PROCEDURAL HISTORY 11. This action was commenced by the filing and service of a Summons and Complaint on or about January 28, (EXHIBIT "B.") Issue was joined as to defendant, DR. JANG with the service of a Verified Answer on April 10, (EXHIBIT "C.")

6 12. Issue was joined as to the co-defendants UNION HEALTH CENTER, INC. d/b/a UNITE HERE HEALTH CENTER, INC. s/h/a UNION HEALTH CENTER, INC., HAISUN S. PARK s/h/a HAI SUN SHI PARK, M.D., EDWARD KWAK, M.D., THE NEW YORK EYE 4 EAR INFIRMARY, NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS s/h/a NEW YORK HOSPITAL QUEENS (hereinafter, "NEW YORK HOSPITAL QUEENS"), ANJALI BHARATI, M.D., and ROBERT DYKSTERHOUSE, M.D. s/h/a ROBERT MAX DYKSTERHOUSE, M.D. on or about April 4, 2014, April 7, 2014, March 24, 2014, March 27, 2014, March 20, 2014, and April 7, 2014, respectively. (Collectively annexed hereto as EXHIBIT "D.") 13. The plaintiffs served Verified Bills of Particulars as to UNION HEALTH CENTER, INC. d/b/a UNITE HERE HEALTH CENTER, INC. s/h/a UNION HEALTH CENTER, INC. (hereinafter, "UNION HEALTH CENTER"), HAISUN S. PARK s/h/a HAI SUN SHI PARK, M.D., EDWARD KWAK, M.D., THE NEW YORK EYE & EAR INFIRMARY, NEW YORK HOSPITAL QUEENS, ANJALI BHARATI, M.D., and ROBERT DYKSTERHOUSE, M.D. s/h/a ROBERT MAX DYKSTERHOUSE, M.D. on or about April 25, (Collectively annexed hereto as EXHIBIT"E.") The plaintiffs served a Verified Bill of Particulars as to DR. JANG on or about February 2, 2015, which erroneously addressed claims as to the UNION HEALTH CENTER. (EXHIBIT"F.") 14. Accordingly, the plaintiffs served an Amended Verified Bill of Particulars as to DR. JANG on or about April 16, (EXHIBIT "G.") As to DR. JANG, the plaintiffs alleged departures from accepted standards of medical practice by purportedly improperly administering DDAVP and failing to properly instruct the plaintiff on the use of DDAVP, including failing to restrict and advise the plaintiff on fluid intake. The plaintiffs further claim

7 that DR. JANG failed to monitor and note the significance of the plaintiff's IV fluid intake during surgery and administered an incorrect dosage of intra-operative IV fluids in the face of DDAVP. The plaintiffs additional claims against DR. JANG include a purported failure to perform repeat lab testing, failing to provide the plaintiff with post-operative instructions, improperly discharging the plaintiff, and failing to provide proper discharge instructions. The plaintiff also asserts that DR. JANG failed to properly treat the plaintiff and caused his hyponatremia. (EXHIBIT "G," pages 1-4, 3, 6-7.) 15. As a result of the claimed departures, the plaintiff's alleged injuries include the following: pontine myelinosis; brain damage; seizures; expressive aphasia and dysarthria; left hemiparesis and hemiplegia with decreased balance; left facial droop and myofascial pain; exacerbation of hyponatremia; a decreased ability to walk and decreased motor skills; spasticity; global and cognitive delays; respiratory failure and intubation; peg tube placement; undergoing a tracheostomy; c. difficile; urosepsis; pressure ulcers; depression; anxiety; and, a loss of enjoyment of life. (EXHIBIT "G," page 4-6, 9.) 16. The deposition of the co-plaintiff, ANGELA ROMERO was held on two sessions on June 17, 2015 and August 20, (Collectively annexed as EXHIBIT "H.") The deposition of non-party witness, Naeem Sadat, P.A. was held on December 15, (EXHIBIT "I.") The deposition of defendant, DR. KWAK was held on June 21, (EXHIBIT "J.") The deposition of defendant, DR. PARK was held on August 9, (EXHIBIT "K.") The deposition of DR. JANG was held on September 20, (EXHIBIT "L.") The deposition of defendant, DR. DYKSTERHOUSE was held on November 20, (EXHIBIT "M.") The deposition of defendant, DR. BHARATI was held on January 31, (EXHIBIT "N.")

8 17. In lieu of a deposition, the plaintiff submitted interrogatories. On or about April 20, 2016, the plaintiff submitted responses to defendants, DR. KWAK and the NEW YORK EYE 4 EAR INFIRMARY'S interrogatories. The plaintiff served responses to the initial set and the supplemental interrogatories of defendants, NEW YORK HOSPITAL QUEENS and DR. BHARATI on or about December 18, 2015 and August 17, 2016, respectively. The plaintiff served a response to defendants, UNION HEALTH CENTER, INC., DR. PARK, and DR. DYKSTERHOUSE'S interrogatories on or about April 20, The plaintiff served responses to defendant, DR. JANG'S first set of interrogatories and request for a supplemental interrogatory on or about August 17, The plaintiff served supplemental and amended responses to DR. JANG'S interrogatories on or about October 24, The plaintiff then also served an amended response to defendant DR. JANG'S supplemental interrogatories on or about October 24, The plaintiff thereafter served a second supplemental response to DR. JANG'S interrogatories on or about December 2, (All of the plaintiff's responses to the defendants' interrogatories are collectively annexed hereto as EXHIBIT "O.") 18. On April 17, 2018, plaintiffs filed a Note of Issue and Certificate of readiness. (EXHIBIT "P.") Pursuant to the November 25, 2014 Preliminary Conference Order, this motion is timely and the relief has not been sought prior. (EXHIBIT "Q.") 19. Copies of the plaintiff's pertinent medical records are annexed as follows: UNION HEALTH CENTER (EXHIBIT "R"), NEW YORK EYE 4 EAR INFIRMARY (EXHIBIT "S"), NEW YORK HOSPITAL QUEENS (EXHIBIT "T"), and the New York and Presbyterian Hospital (EXHIBITS "U," "U1," "UU2," and "UU3).1 1 All exhibits have been redacted in compliance with 22 NYCRR 202.5(e). All medical records have been Bate stamped to facilitate judicial review of this application.

9 20. Plaintiff's counsel has indicated that he is amenable to discontinuing this action as to DR. JANG; however, the parties were unable to reach an agreement and stipulate to language to facilitate the discontinuance. (EXHIBIT "V.") Therefore, the instant motion is necessary. STATEMENT OF FACTS 21. The plaintiff was diagnosed with type I Von Willebrand's disease by hematologist, DR. PARK on June 4, (EXHIBIT "R," page 40, June 4, 2012 Office Note; see also, EXHIBIT "K," 53:12-18). The plaintiff's primary care physician, DR. DYKSTERHOUSE had referred the plaintiff to DR. PARK for the evaluation after he had experienced abnormal nose bleeding after a prior nasal surgery with DR. KWAK. (EXHIBIT "M," 34:7-22.) It was DR. PARK'S testimony that DDAVP (Stimate) was her primary choice for treating the plaintiff's type I Von Willebrand's disease for the June 29, 2012 surgery. (EXHIBIT"K," 57:9-12.) DR. PARK testified that she prescribed DDAVP to the plaintiff in anticipation for the June 29, 2012 surgery after speaking with DR. KWAK. (EXHIBIT "K," 63:14-64:25.) The plaintiff was placed on a trial period of DDAVP and was thereafter cleared for the nasal septum surgery by DR. DYKSTERHOUSE. (EXHIBIT "R," page 32, DR. DYKSTERHOUSE June 26, 2012 Clearance Note; see also, EXHIBIT "M," 48:18-20.) DR. DYKSTERHOUSE'S clearance note documented that the patient responded well to DDAVP, increasing the Von Willebrand factor activity from 26% to 145% and that the patient was cleared for surgery. (EXHIBIT "R," page 32). He further noted that the patient was to take intranasal DDAVP, two hours before the procedure, then every 12 hours for three days post-procedure. (Id.) DR. DYKSTERHOUSE'S note concluded with stating that the patient had a low cardiac risk for a low risk procedure, as per ACC/AHA guidelines. (Id.) DR. DYKSTERHOUSE

10 testified that he reviewed the instructions as to Stimate use, as indicated on the prescription, with the plaintiff. (EXHIBIT "M," 39:10-40:19.) 22. On June 11, 2012, DR. PARK issued an order for DDAVP (Stimate), 1.5 mg./ml. to the plaintiff, which was to be administered as one spray in each nostril two hours before the procedure and thereafter repeat every 12 hours for three days. (See, EXHIBIT"W," page 8, 11, Prescription Record Produced at Deposition of DR. PARK.) 23. DR. PARK testified that she instructed the plaintiff as to the use and administration of DDAVP, including directing him to limit his fluid intake while on the medication. (EXHIBIT "K," 72:11-77:19; 88:24-91:22; 93:11-19.) DR. PARK testified that her order reflected that the patient was to receive one dose of DDAVP before the procedure and dosages after the procedure, dependent upon the presence of any bleeding issues. (Id. at 72:22-73:13.) DR. PARK asserted that she never spoke with the plaintiffs anesthesiologist for the June 29, 2012 surgery. (Id. at 100:25-101:10.) Clearly, DR. JANG had no contact and no involvement in the plaintiff's care up to this time, as DR. JANG did not render any opinions regarding the plaintiff's surgery or instructions with respect to DDAVP. 24. On June 29, 2012, the plaintiff presented to the NEW YORK EYE & EAR INFIRMARY as a patient and underwent surgical repair of nasal vestibular stenosis, a septoplasty, and bilateral inferior turbinate reduction. (EXHIBIT "S," page 81, Operative Record.) DR. KWAK performed the surgery. (Id.) DR. JANG was the plaintiff's anesthesiologist for the procedure. (Id. at 80, Anesthesia Record.) This is the only date that DR. JANG ever provided service to the plaintiff. 25. The plaintiff was admitted as a patient at 8:13 a.m. (Id. at 104, Ambulatory Surgery Face Sheet; see also, Id. at 116.) A different attending anesthesiologist on duty during

11 the pre-operative period obtained the plaintiffs consent for anesthesia. (Id at 107; see also, EXHIBIT "L," 26:7-19) This same attending anesthesiologist also completed a Pre-Anesthetic Evaluation form, which recorded that the plaintiff had type I Von Willebrand's disease. (EXHIBIT "S," at 78.) The form also noted that as per the hematologist and internist, DDAVP was to be provided prior to surgery, as the patient had been treated for response to DDAVP with an increase in the Von Willebrand Factor. (Id.) It was also documented on the form that DDAVP spray was administered at 9:15 a.m. on the day of the surgery. (Id) The form also reported that the plaintiff was assigned as ASA class 3. (Id) Furthermore, the form denoted the plaintiff to be class III under airway classification and reflected that general anesthesia was planned. (Id.) The form also noted that the plaintiff was NPO status (indicating, nothing by mouth) and that the plaintiff had no social history of alcohol use. (Id.) 26. Ira Garcia, R.N. of the NEW YORK EYE & EAR INFIRMARY documented that DDAVP spray was administered to each nostril at 9:15 a.m. (Id. at 54; see also, Id. at 80, Anesthesia Record Indicating DDAVP administration intranasally at 9:15 a.m.) DR. JANG was not on duty and was not present during the pre-operative round on June 29, (See, Id at 94, Intra-operative Record reflecting DR. JANG time in at 9:54 a.m.) 27. The plaintiff arrived in the operating room at 9:52 a.m. (Id at 116.) Anne Beitler, CRNA made the documentation in the anesthesia record. (EXHIBIT "L," 19:3-8.) DR. JANG was the attending anesthesiologist, signing off on the anesthesia record. (EXHIBIT "S," at 80, see also, EXHIBIT "L," 18:12-19:2.) The patient was noted to have been NPO for over eight hours. (EXHIBIT "S," at 80.) Anesthesia was timed to have begun at 9:54 a.m. (Id) General anesthesia was administered. (Id at 77; see also, EXHIBIT "L," 20:17-19) At 10:03 a.m., IV induction commenced and the patient was successfully intubated without incident. (EXHIBIT

12 "S," at 80.) DR. JANG testified that he first had contact with the patient at induction. (EXHIBIT "L," 26:20-24.) The procedure was timed to have begun at 10:30 a.m. (EXHIBIT"S," at 91.) DR. JANG monitored the patient's vitals and ensured that the patient was stable during the procedure. The procedure was timed to have ended at 12:38 p.m. (EXHIBIT "S," at 96.) At 12:41 p.m., the plaintiff was noted to be breathing well and was extubated at 12:45 p.m. without issue. (Id. at 80.) Anesthesia was timed to have ended at 12:59 p.m. (Id. at 96.) The plaintiff was admitted to the PACU at 1:02 p.m., in stable condition. (Id. at 77, 98.) 28. Intra-operatively, the plaintiff received at total of 1,300 cc. of IV fluids. (Id. at 80.) The plaintiff experienced an estimated blood loss of 40 ml. (Id) Urine output was not monitored because a Foley catheter had not been used in light of the type of anesthesia implemented. (EXHIBIT "L," 33:23-34:11.) DR. JANG never administered DDAVP to the plaintiff and never directed his medical staff to administer DDAVP to the plaintiff. (EXHIBIT "L," 24:11-15; 38:10-18) The management of DDAVP and determining whether post-operative lab testing was indicated was beyond the purview of DR. JANG'S role as the anesthesiologist and were not decisions made by DR. JANG. 29. DR. JANG'S role as the attending anesthesiologist during the post-operative period was limited to ensuring the patient was stable and awake for discharge. Pursuant to DR. JANG'S orders, the plaintiff received 500 ml. of IV fluids during phase one in the PACU. (EXHIBIT "S," at 87.) Furthermore, pursuant to DR. JANG'S orders, the plaintiff received 50 ml. of IV fluids during phase two in the PACU. (Id.) By 2:02 p.m., the plaintiff received a postanesthesia recovery score of 12 and was cleared for discharge. (Id. at 70.) The plaintiff was discharged from the PACU at 2:05 p.m. (Id.) DR. JANG'S care of the laintiff terminated u on

13 clearing him for discharge from the PACU and DR. JANG never had contact with the plaintiff again. 30. DR. KWAK issued the plaintiffs discharge orders, provided the plaintiff with discharge instructions, and discharged the plaintiff from the hospital on June 29, (Id at 49-50; see also, EXHIBIT "J," 74:8-75:16.) 31. On July 6, 2012, the plaintiff presented to NEW YORK HOSPITAL QUEENS and was hospitalized for hyponatremia. (EXHIBIT "T," at 215, Discharge Summary Detailing Hospital Course.) The plaintiff suffered a generalized tonic clonic seizure on July 7th, which was considered as possibly alcohol withdrawal induced. ( Id) The plaintiff reportedly stabilized and was discharged home on July 12, (Id) DR. JANG did not treat the plaintiff during this admission. 32. On July 14, 2012, the plaintiff was admitted to the New York and Presbyterian Hospital for altered mental status and hyponatremia. (EXHIBIT "U1," at 704.) Ultimately, an MRI of the brain revealed central pontine myelinosis. (Id at 745.) Following a lengthy hospitalization, the plaintiff was discharged on August 30, 2012 with diagnoses that included central pontine myelinolysis with residual weakness, as well as rubral and intention tremors, Von Willebrand's disease, a history of alcoholism, Olgivie's syndrome, urinary retention, multi-drug resistant Klebsiella pneumonia and urinary tract infection, diarrhea with treatment of c. difficile, a tracheostomy and peg placement, reactive depression, and normocytic anemia. ( Id at 704.) DR. JANG did not treat the plaintiff during this admission.

14 STATEMENT OF LAW 33. Pursuant to C.P.L.R. 3212(b), summary judgment is warranted if "upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party." 34. A party moving for summary judgment must make a prima facie showing of entitlement to the judgment as a matter of law, which requires the submission of sufficient evidence that no genuine triable issues of fact exist in the case. In a medical malpractice action where the movant is a defendant doctor or hospital, sufficient evidence includes all relevant medical records, deposition testimony of the parties, and the sworn statement of a medical expert demonstrating the absence of negligence on the part of a moving party. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 501 N.E.2d 572, (1986). 35. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, which require resolution by a jury. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 501 N.E.2d 572, (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). The party opposing the motion must submit the sworn statement of a medical expert rebutting the movant's proof that there is an absence of negligence. (See, Alvarez, supra, 68 N.Y.2d at 327, 508 N.Y.S.2d at 927). The expert's affirmation must be supported by competent evidence establishing the essential elements of malpractice, and general allegations or mere conclusions will not be sufficient to defeat the motion for summary judgment. Id., N.Y.2d at 325, 508 N.Y.S.2d at 926. The opponent must not only show a deviation from the accepted standards of care, but also the existence of a nexus between the alleged malpractice and the injury. Ferrara v. South Shore

15 Orthopedic Associates, P.C., 178 A.D.2d 364, 366, 577 N.Y.S.2d 813 (13t Dep't. 1991). Absent causation, liability cannot be imposed. Koehler v. Schwartz, 48 N.Y.2d 807, 399 N.E.2d 1140, 424 N.Y.S.2d 119 (1979). LEGAL ARGUMENTS 36. In the instant matter, the pertinent medical records, testimony, as well as the expert opinions set forth in the expert affirmation of Mark Abel, M.D., and all exhibits annexed hereto establish DR. JANG'S prima facie showing that no malpractice occurred in this matter and that the treatment rendered by DR. JANG was not the proximate cause of the plaintiffs alleged injuries. There was no action or inaction on the part of DR. JANG that caused, or even proximately caused the injuries alleged by the plaintiff. DR. JANG'S care of the plaintiff was at all times appropriate and within the standard of care, including his intra-operative and postoperative management of the anesthetic care of the plaintiff. Therefore, summary judgment should be granted on behalf of DR. JANG. A. Dr. Jang's care and treatment was at all times within the appropriate standards of medical care. 37. As articulated in the affirmation of Dr. Abel, DR. JANG'S care of the plaintiff was at all times acceptable and within the standard of good anesthetic practice. At no time did DR. JANG depart from the standard of anesthetic care in treating the plaintiff. Furthermore, nothing that DR. JANG did or did not do in any way caused or contributed to the injuries alleged by the plaintiff. (EXHIBIT "A.") 38. Dr. Abel opined to a reasonable degree of medical certainty that DR. JANG can have no liability for the administration of DDAVP because DR. JANG never administered or at directed anyone to administer DDAVP to the plaintiff. (Id. $ 19, 20.)

16 39. Dr. Abel also concluded to a reasonable degree of medical certainty that DR. JANG can have no liability for the management of the plaintiff's DDAVP use, which includes instruction as to restricting fluids and diet, as this was beyond the scope of DR. JANG'S function as an anesthesiologist and was a role already assumed by the plaintiff's hematologist and internist. (Id at 20.) Dr. Abel noted that DR. JANG never ordered the DDAVP. (Id at 19.) He also had no contact with DR. PARK, who had ordered DDAVP and provided the plaintiff with instruction as to DDAVP use. (Id) Furthermore, Dr. Abel asserted that DR. JANG had no contact with DR. DYKSTERHOUSE, who cleared the plaintiff for surgery and reinforced instructions to the plaintiff as to DDAVP use. (Id) Moreover, Dr. Abel also noted that DR. JANG was not involved in the pre-operative anesthesia evaluation of the plaintiff, such that a different attending anesthesiologist of the hospital completed the evaluation. (Id) Dr. Abel further detailed that the pre-operative dose of DDAVP was administered to the plaintiff before DR. JANG was on duty. (Id) Therefore, Dr. Abel found that DR. JANG had no involvement in the management of the plaintiff's DDAVP use and, accordingly, did not provide instruction to the plaintiff as to fluid intake while taking the medication, as this would have been beyond the scope of his role as the attending anesthesiologist of the intra-operative and postoperative periods of the plaintiff's June 29, 2012 nasal surgery. (Id) 40. Dr. Abel found that the 1,300 cc. of IV fluids administered by DR. JANG during the intra-operative period was entirely appropriate and standard, even with consideration that the plaintiff had been administered DDAVP pre-operatively. (Id at 21.) Dr. Abel affirms that 1,300 cc. of IV fluids was a minimal amount, which would never be sufficient to cause hyponatremia and that no evidence in the plaintiff's records would attest to the contrary. (Id) Dr. Abel noted that urine output had not been monitored because a Foley catheter had not been

17 placed because of the type of anesthesia being used. (Id). Dr. Abel concluded that it was his opinion to a reasonable degree of medical certainty that the intra-operative care rendered by DR. JANG was entirely appropriate and within the standard of care. (Id) 41. Dr. Abel opined to a reasonable degree of medical certainty that DR. JANG'S post-operative care of the patient was performed appropriately and within the standard of care. ( Id at 22.) Dr. Abel cited that DR. JANG ordered a standard and appropriate amount of a total of 550 ml. of IV fluids to be administered to the plaintiff in the PACU, which was likewise never enough to cause hyponatremia. (Id) Dr. Abel also noted that DR. JANG appropriately ensured that the plaintiff was stable and awake for discharge, such that the plaintiff was not discharged from the PACU until obtaining a post-anesthesia recovery score of 12, which was indicative that he was stable. (Id) Dr. Abel further opined to a reasonable degree of medical certainty that the plaintiff did not experience any complications and did not manifest any symptoms at the time he was discharged from DR. JANG'S care, such that the plaintiffs alleged injuries could not be attributed to the care rendered by DR. JANG. ( Id) 42. Dr. Abel concluded that DR. JANG could have no liability for the discharge of the plaintiff from the hospital, as well as for the discharge instructions and discharge orders provided to the plaintiff, as his care of the plaintiff had ceased prior to this time. (Id. at $23.) Dr. Abel supported his opinion by stating that DR. KWAK was the physician who discharged the plaintiff from the hospital and provided discharge instructions and discharge orders. (Id) Moreover, Dr. Abel also asserted that the determination of whether to conduct post-operative lab testing was within the purview of the role of the surgeon, not the anesthesiologist. (Id) Dr. Abel detailed that, regardless, post-operative labs testing was unwarranted because the plaintiff experienced minimal blood loss of 40 ml. (Id.) Dr. Abel noted that DR. JANG cannot be liable

18 for any care related to the treatment of the plaintiff's hyponatremia, which is supported by the fact that the treatment of the plaintiff's hyponatremia did not involve DR. JANG and occurred at a different facility well after DR. JANG'S care of the plaintiff had ended. (Id.) Moreover, the amount of IV fluids administered to the plaintiff intra-operatively and in the PACU was never sufficient to cause hyponatremia. (Id. at ) Accordingly, Dr. Abel concluded to a reasonable degree of medical certainty that DR. JANG'S care of the plaintiff never contributed to or caused the plaintiffs claimed injuries in so far as they relate to allegations of not performing post-operative lab testing, in discharging the patient from the hospital, in providing discharge instructions to the patient, or in treating the plaintiff's hyponatremia. (Id. at 24.) 43. Therefore DR. JANG never deviated from good and accepted standards of care in his treatment of the plaintiff. The care rendered by DR. JANG was appropriate and within the standard of care at all times. There being no triable issue of fact against the moving defendant, summary judgment should be granted in favor as a matter of law and all claims against the moving defendant should be dismissed. B. Dr. Jang's care and treatment was not the proximate cause of the plaintiff's claimed injuries. 44. Dr. Abel affirms that it his opinion to a reasonable degree of medical certainty that DR. JANG'S care of the plaintiff did not cause the plaintiff's claimed injuries related to the use and management of DDAVP. (Id. at 24.) Dr. Abel pinpointed that DR. JANG had no involvement in the pre-operative management of the plaintiff, never rendered any opinions concerning the plaintiff's DDAVP use, and never administered or directed the administration of DDAVP. (Id.) 45. Dr. Abel also concluded that DR. JANG'S management of the plaintiff during the intra-operative and post-operative periods was entirely appropriate and within the standard of

19 care, inclusive of the amount of IV fluids administered and in ensuring the plaintiff was stable before discharge from the PACU. (Id) Dr. Abel opined to a reasonable degree of medical certainty that none of the care rendered by DR. JANG during the intra-operative and postoperative periods on June 29, 2012 could have contributed to or caused the plaintiff's claimed injuries. (Id) 46. Dr. Abel elaborated that ordering post-operative lab testing was never the role of DR. JANG as the anesthesiologist and was never warranted. (Id) Dr. Abel supported his opinion by referencing the fact that DR. JANG'S care of the plaintiff ceased after his discharge from the PACU. (Id) Dr. Abel also raised the fact that DR. JANG had no involvement in the discharge of the plaintiff from the hospital or in providing the plaintiff with discharge instructions. (Id) Dr. Abel referenced the fact that DR. JANG was not present when the plaintiff was treated for hyponatremia, which had occurred at an independent facility, well after DR. JANG'S care of the plaintiff had ended. (Id) Dr. Abel concluded to a reasonable degree of medical certainty that because DR. JANG had no role in the care of the plaintiff after his discharge from the PACU, DR. JANG'S care of the plaintiff never contributed to or caused the plaintiff's claimed injuries in so far as they relate to allegations of not performing post-operative lab testing, in discharging the plaintiff from the hospital, in providing discharge instructions to the plaintiff, or in treating the plaintiff's hyponatremia. (Id) 47. Thus, there exists no causation between the care rendered by DR. JANG and the claimed injuries. The plaintiffs claimed injuries are unrelated to the care and treatment he received from DR. JANG.

20 CONCLUSION 48. As detailed in the affirmation of expert physician, Mark Abel, M.D., which opines to a reasonable degree of medical certainty that DR. JANG acted at all times in accordance with the appropriate standard of medical care and that no action or inaction on his behalf caused or contributed to the plaintiff's alleged injuries, it is respectfully requested that this Court deem as a matter of law that the moving defendant has made a prima facie showing of entitlement for summary judgment and grant this motion in its entirety. It is further requested that upon a dismissal of this action as to the plaintiff, that the claim as to the co-plaintiff, ANGELA ROMERO also be dismissed. The co-plaintiff asserts a derivative claim for a loss of services and consortium, which cannot survive the dismissal of the primary action of the plaintiff. WHEREFORE, it is respectfully submitted that the defendant's motion be granted in its entirety and this Court issue an order: pursuant to CPLR 3212, granting summary judgment dismissing all claims, in their entirety, with prejudice against the defendant, DR. JANG, upon the grounds that there are no triable issues of fact, and thereby warranting direction of judgment in favor of the moving defendant, as a matter of law; amending the caption by deleting the name of the moving defendant, DR. JANG; directing the Clerk of the Court to enter judgment accordingly; and, (d) for such other and further relief as this Court deems just and proper. Dated: New York, New York June 14, 2018 Amy T. Jen

21 AFFIDAVIT OF SERVICE Perez v. Jang (1.3325) STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) I, LISA PAYTON, being duly sworn, deposes and says: Deponent is not a party to this action, is over 18 years of age and resides in Pike County, Pennsylvania. On June 14, 2018 I served the within ORDER TO SHOW CAUSE by e-filing a true copy of the same via the New York State Court System's electronic filing system on: GERSOWITZ LIBO & KOREK, P.C. KAUFMAN BORGEEST & RYAN, LLP Attorneys for Plaintiffs Attorneys for Defendants th Broadway, Floor UNION HEALTH CENTER, INC., d/b/a UNITE New York, New York HERE HEALTH CENTER, INC, s/h/a UNION HEALTH CENTER, INC., HAISUN S. PARK, M.D. SHAUB AHMUTY CITRIN & SPRATT, LLP s/h/a HAI SUN SHI PARK and ROBERT Attorneys for Defendants DYKSTERHOUSE, M.D. s/h/a ROBERT MAX EDWARD KWAK, M.D. and THE NEW YORK DYKSTERHOUSE, M.D. EYE & EAR INFIRMARY th Broadway, Floor 77 Water Street New York, New York New York, New York KOSTER BRADY & NAGLER, LLP AARONSON RAPPAPORT Attorneys for Defendant FEINSTEIN & DEUTSCH, LLP ROBERT DYKSTERHOUSE, M.D. s/h/a Attorneys for Defendants ROBERT MAX DYKSTERHOUSE, M.D. NEW YORK HOSPITAL MEDICAL CENTER OF One Whitehall Street QUEENS s/h/a NEW YORK HOSPITAL New York, New York QUEENS and ANJALI BHARATI, M.D. 600 Third Avenue New York, New York Lisa Payton Sworn to before me this 14th day of June, 22)18 Notarv Public Oublic RAMONA CAÊ Notary Public, State of New York Reg. No. 01CA Qualified in New York County Commission Expires November 23, 2021

22 Index # /14 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JULIO PEREZ AND ANGELA ROMERO, Plaintiffs, -against- NEW YORK HOSPITAL QUEENS, UNION HEALTH CENTER, INC., THE NEW YORK EYE & EAR INFIRMARY, EDWARD KWAK, M.D., HAI SUN SHI PARK, M.D., IN JANG, M.D., ANJALI BHARATI, M.D., and ROBERT MAX DYKSTERHOUSE, M.D. Defendants. ORDER TO SHOW CAUSE DECORATO COHEN SHEEHAN & FEDERICO, LLP Attorneys for Defendant IN JANG, M.D. 14th 90 Broad Street, Floor New York, New York (212)