FILED: NEW YORK COUNTY CLERK 06/14/ :12 PM INDEX NO /2014 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 06/14/2018

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2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JULIO PEREZ AND ANGELA ROMERO, Index #: /14 X Plaintiffs, -against- AFFIRMATION OF MARK ABEL, M.D. 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 MARK ABEL, M.D., a physician duly licensed to practice medicine in the State of New York, who is not a party to this action, hereby affirms the following to be true under penalty of perjury: 1. I am a physician duly licensed to practice medicine in the State of New York, having received my medical degree from New York University School of Medicine in I completed an internship at Cabrini Medical Center in I then completed a residency in Anesthesiology at Mount Sinai Hospital in I am board certified by the American Board of Anesthesiology. In my over 20 years of practice in the field of anesthesiology, I regularly provide anesthetic care to surgical patients. Therefore, I am able to opine as to the standard of care relating to the treatment at issue and can provide an opinion to a reasonable degree of medical certainty concerning such care. 2. I am not a party to this action, nor do I have any affiliation with In Jang, M.D. (hereinafter, "Dr. Jang"). I submit this affirmation in support of the summary judgment motion on behalf of Dr. Jang.

3 3. I have reviewed the Summons and Complaint, the Verified Bills of Particulars and the Amended Verified Bills of Particulars as to Dr. Jang, as well as the plaintiff, Julio Perez's medical records including, but not limited to those from the Union Health Center, the New York Eye and Ear Infirmary, New York Hospital Queens, and the New York and Presbyterian Hospital. I have also reviewed deposition transcripts of the following individuals: Angela Romero, Naeem Sadat, P.A., Edward Kwak, M.D., Hai Sun Park, M.D., In Jang, M.D., Robert Dyksterhouse, M.D., and Anjali Bharati, D.O. Additionally, I have reviewed the interrogatories as to Mr. Perez. A review of these materials, together with my training, knowledge, and experience in the field of anesthesiology, formulate the basis of my opinions expressed herein, all of which are to a reasonable degree ofmedical certainty. 4. Plaintiff's initial Verified Bills of Particulars as to Dr. Jang erroneously amplified the pleadings as to the Union Health Center. Plaintiff's Amended Verified Bill of Particulars include allegations that Dr. Jang departed 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 plaintiff also claims 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 plaintiff's additional allegations against Dr. Jang include failing 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 claims that Dr. Jang failed to properly treat the plaintiff and caused his hyponatremia. 5. Based upon my review of the above materials and my years of experience as an anesthesiologist, it is my opinion to a reasonable degree of medical certainty that all care

4 rendered by Dr. Jang was appropriate and within the standard of care. Furthermore, it is my opinion to a reasonable degree of medical certainty that no act or omission on the part of Dr. Jang, in any way caused or contributed to any of the plaintiff's alleged injuries. 6. The plaintiff had a history of type I Von Willebrand's disease, as diagnosed by hematologist, Dr. Park on June 4, The plaintiffs primary care physician, Dr. Dyksterhouse, had referred him to Dr. Park for the evaluation after the patient experienced abnormal nose bleeding after a prior nasal surgery with Dr. Kwak. Dr. Park testified that DDAVP (Stimate) was her primary choice for treating the plaintiff's type I Von Willebrand's disease for the June 29, 2012 surgery. She further testified that she decided to prescribe intranasal DDAVP in anticipation of the June 29, 2012 surgery, after conferring with Dr. Kwak. After a trial period on DDAVP, the plaintiff was cleared for nasal septum surgery by Dr. Dyksterhouse, who testified that he reviewed the instructions as to Stimate use, as indicated on the prescription, with the plaintiff. In clearing the plaintiff, Dr. Dyksterhouse wrote 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. Dr. Dyksterhouse's note further referenced that the patient was to take intranasal DDAVP, two hours before the procedure, then every 12 hours for three days post-procedure. Dr. Dyksterhouse concluded his note by asserting that the patient had a low cardiac risk for a low risk procedure, as per ACC/AHA guidelines. 7. Dr. Park had ordered the DDAVP and testified that she instructed the plaintiff as to the use and administration of DDAVP, including directing the plaintiff to limit his fluid intake while on the medication. Dr. Park issued the order on June 11, 2012 for Stimate (DDAVP) 1.5mg./ml., to be administered as one spray in each nostril two hours before the procedure and thereafter repeat every 12 hours for three days. Dr. Park testified that her order reflected that the

5 patient was to receive one dose of DDAVP before the procedure and dosages after the procedure, dependent upon the presence of any bleeding issues. Dr. Park affirmed that she never spoke with the plaintiff's anesthesiologist for the June 29, 2012 surgery. Up to this point, Dr. Jang had absolutely no involvement in the plaintiff's care, nor did he render any opinions regarding his surgery or instructions with respect to DDAVP. 8. On June 29, 2012, the plaintiff presented to the New York Eye and Ear Infirmary and underwent surgical repair of nasal vestibular stenosis, a septoplasty, and bilateral inferior turbinate reduction. The surgery was performed by Dr. Kwak. Dr. Jang was the plaintiffs anesthesiologist for the procedure. This was the only date that Dr. Jang rendered service to the plaintiff. 9. The patient was admitted at 8:13 a.m. A different attending anesthesiologist on duty during the pre-operative round obtained the plaintiffs consent for anesthesia. This attending anesthesiologist also completed a Pre-Anesthetic Evaluation form, which documented that the patient had type I Von Willebrand's disease. The form further noted that as per the hematologist and internist, DDAVP spray 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. It was noted on the form that DDAVP spray was administered at 9:15 a.m. on the day of the surgery. The form also documented that the patient was assigned at ASA class 3. The plaintiff was also denoted as class III under airway classification and the form reflected that general anesthesia was planned. The patient was NPO status (meaning, nothing by mouth) and it was documented that there was no social history of alcohol use.

6 10. Ira Garcia, R.N. of the New York Eye and Ear Infirmary documented that DDAVP spray was administered to each nostril at 9:15 a.m. Dr. Jang was not on duty and was not present during the pre-operative round on June 29, The patient arrived in the operating room at 9:52 a.m. Documentation in the anesthesia record was made by Anne Beitler, CRNA and Dr. Jang was the attending anesthesiologist, signing off on the anesthesia record. The patient was noted to have been NPO for over eight hours. Anesthesia was timed to have begun at 9:54 a.m. The patient received general anesthesia. At 10:03 a.m., IV induction commenced and the patient was successfully intubated without incident. Dr. Jang testified that he first met the patient at induction. The procedure was timed to have begun at 10:30 a.m. 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. At 12:41 p.m., the patient was breathing well and was extubated at 12:45 p.m. without issue. Anesthesia was timed to have ended at 12:59 p.m. The patient was admitted to the PACU at 1:02 p.m. in stable condition. 12. Intra-operatively, the plaintiff received a total of 1,300 cc. of IV fluids. The plaintiff experienced an estimated blood loss of 40 ml. Urine output was not monitored because a Foley catheter had not been used in light of the type of anesthesia implemented. 13. Dr. Jang never administered DDAVP to the plaintiff and never directed any medical staff to administer DDAVP to the plaintiff. 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. These decisions are not made by Dr. Jang. 14. Dr. Jang's role as the anesthesiologist during the post-operative period was limited to ensuring the patient was stable and awake for discharge. As per Dr. Jang's orders,

7 during phase one in the PACU, the plaintiff received 500 ml. of IV fluids. Also as per Dr. Jang's orders, during phase two in the PACU, the plaintiff received 50 ml. of IV fluids. By 2:02 p.m., the plaintiff received a post-anesthesia recovery score of 12 and was cleared for discharge. The patient was discharged from the PACU at 2:05 p.m. Dr. Jang's care of the patient terminated upon clearing him for discharge from the PACU and Dr. Jang never had contact with the patient again. 15. Dr. Kwak issued the patient's discharge orders, provided the patient with discharge instructions, and discharged the patient from the hospital on June 29, On July 6, 2012, the plaintiff presented to New York Hospital Queens and was hospitalized for hyponatremia. The plaintiff suffered a generalized tonic clonic seizure on July 75, which was considered as possibly alcohol withdrawal induced. He reportedly stabilized and was discharged home on July 12, On July 14, 2012, the plaintiff was admitted to the New York and Presbyterian Hospital for altered mental status and hyponatremia. Ultimately, an MRI of the brain revealed central pontine myelinolysis. Following a lengthy hospitalization, the plaintiff was discharged on August 30, 2012 and his diagnoses 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. 18. Based upon the foregoing, including the medical records of the plaintiff, together with the testimony in this matter, it is my opinion to a reasonable degree of medical certainty that

8 the care rendered by Dr. Jang to the plaintiff was appropriate and within the standard of care at all times. 19. Dr. Jang never ordered DDAVP to be administered to the plaintiff. Dr. Jang never administered DDAVP to the plaintiff and did not direct anyone to administer DDAVP to the plaintiff. Dr. Jang had no contact with Dr. Park, who ordered DDAVP and provided the plaintiff with instruction as to DDAVP use. Dr. Jang had no contact with Dr. Dyksterhouse, who cleared the plaintiff for surgery and reinforced instructions to the plaintiff as to DDAVP use. Dr. Jang was not involved in the pre-operative anesthesia evaluation of the patient, such that another attending anesthesiologist of the hospital completed the evaluation. A pre-operative dose of DDAVP was administered to the patient before Dr. Jang was on duty. Thus, Dr. Jang had no involvement in the management of the plaintiff's DDAVP use and, accordingly, did not provide instruction to the patient 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. 20. It is my opinion to a reasonable degree of medical certainty that Dr. Jang can have no liability for the administration of DDAVP, as he never administered or directed anyone to administer DDAVP to the patient. It is also my opinion to a reasonable degree of medical certainty that Dr. Jang can have no liability for the management of the patient's DDAVP use, including instruction as to restricting fluids and diet, as this was beyond the scope of this physician's function as an anesthesiologist and was a role already assumed by the plaintiffs hematologist and internist. 21. Dr. Jang administered 1,300 cc. of IV fluids during the intra-operative period. This amount of IV fluids is appropriate, even with consideration that the plaintiff had been

9 administered DDAVP pre-operatively. I affirm that the administration of 1,300 cc. of IV fluids was minimal and would never be sufficient to cause hyponatremia, and there is no evidence in the plaintiffs records attesting to the contrary. Urine output had not been monitored since a Foley catheter had not been placed due to the type of anesthesia being used. It is my 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. 22. It is my opinion to a reasonable degree of medical certainty that Dr. Jang's postoperative care of the patient was performed appropriately and within the standard of care. Dr. Jang ordered a total of 550 ml. of IV fluids to be administered to the patient in the PACU, which was a standard and appropriate amount that would never be sufficient to cause hyponatremia. Dr. Jang appropriately ensured that the patient was stable and awake for discharge, as the patient was not discharged from the PACU until obtaining a post-anesthesia recovery score of 12, which indicated that he was stable. It is likewise my opinion to a reasonable degree of medical certainty that the patient did not experience any complications and did not manifest any symptoms at the time he was discharged from Dr. Jang's care. Therefore, the plaintiff's alleged injuries cannot be attributed to the care rendered by Dr. Jang in any manner. 23. Dr. Jang can have no liability for the discharge of the patient from the hospital, as well as for the discharge instructions and discharge orders provided to the patient, as his care of the patient had ceased prior to this time. Dr. Kwak was the physician who discharged the patient from the hospital and provided the discharge instructions and discharge orders. Similarly, the determination of whether to conduct post-operative lab testing was within the purview of the role of the surgeon, not the anesthesiologist. Moreover, post-operative lab testing was unwarranted, given the minimal blood loss of 40 ml. by the plaintiff. Dr. Jang likewise cannot be liable for

10 any care related to the treatment of the plaintiffs hyponatremia, since the treatment of the plaintiff's hyponatremia did not involve Dr. Jang and occurred well after Dr. Jang's care of the plaintiff had ended. 24. Dr. Jang had no involvement in the pre-operative management of the patient, never rendered any opinions concerning the plaintiff's DDAVP use, and never administered or directed the administration of DDAVP. It is my opinion to a reasonable degree of medical certainty that Dr. Jang's care of the patient did not contribute to or cause the plaintiff's claimed injuries related to the use and management of DDAVP. Furthermore, Dr. Jang's management of the patient during the intra-operative and post-operative periods was entirely appropriate and within the standard of care, inclusive of the amount of IV fluids administered and in ensuring the patient was stable before discharge from the PACU. Thus, it is also my opinion to a reasonable degree of medical certainty that none of the care rendered by Dr. Jang during the intra-operative and post-operative periods on June 29, 2012 could have contributed to or caused the plaintiff's claimed injuries. Ordering post-operative lab testing was also never the role of Dr. Jang as the anesthesiologist and was moreover never warranted. Dr. Jang's care of the patient ceased after his discharge from the PACU, such that Dr. Jang had no involvement in the discharge of the patient from the hospital or in providing the patient with discharge instructions. Dr. Jang was likewise not present when the plaintiff was treated for hyponatremia, which occurred at an independent facility, well after Dr. Jang's care of the patient had ended. Therefore, because Dr. Jang had no role in the care of the patient after his discharge from the PACU, it is my opinion to a reasonable degree of medical certainty that Dr. Jang's care of the patient never contributed to or caused the plaintiff's claimed injuries in so far as they relate to allegations of not

11 performing post-operative lab testing, in discharging the patient from the hospital, in providing discharge instructions to the patient, or in treating the patient's hyponatremia. 25. In summary, to a reasonable degree of medical certainty, Dr. Jang's actions were within the standard of care and consistent with good anesthetic practice, such that his actions did not cause injury to the plaintiff Accordingly, the plaintiff s claims against Dr. Jang are not only false, but also devoid of fact. There is no evidence that there was a breach in the standard of anesthetic practice, which could be attributed to the plaintiff s claimed damages. Dated: New York, New York June d 2018 MAIUC ABEL, M.D.