Preview
FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022
017-2118/19
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
—X
DINO BONAVITA,
AFFIRMATION IN
Plaintiff, SUPPORT OF MOTION
FOR SUMMARY
-against- JUDGMENT
SYED MUJAHID SAYEED, M.D., PRECISION Index No.: 61 1506/2018
SURGERY OF NEW YORK, P.C., NORTH SHORE
UNIVERSITY HOSPITAL, and NORTHWELL HEALTH,
Defendants.
X
Roy G. Kulick, M.D., a physician duly licensed in the State of New York, affirms
under penalty of perjury as follows:
1. I am a 1 973 graduate of Cornell University School of Medicine, with residency
training in orthopedic surgery at New York Presbyterian Hospital and fellowship training in
hand and shoulder surgery at the Hospital for Special Surgery. After six years of postgraduate
training, I became board certified by examination in orthopedic surgery as well as obtaining
the certificate of added qualification in hand surgery from the American Board of Orthopedic
Surgery. I have since that time practiced as a full time hand surgeon and since 2001, 1 have
been the Director of the Hand Service at Montefiore Medical Center where I continue to
practice and teach as an Associate Professor of Orthopedic Surgery.
2. At the request of counsel for Dr. Syed M. Sayeed and his professional
corporation, Precision Surgery of New York, P.C., I have reviewed the complaint; bills of
particulars; medical records of North Shore University Hospital, Dr. Sayeed, and Dr.
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Greenberg; photographs; occupational therapy records of Nick Roselli, O.T.; records of Glen
Cove Hospital; and deposition testimony of Dino Bonavita and Syed Sayeed, M.D. I was
retained to render an opinion as to the validity of the claims that the management of Mr.
Bonavita’s hand injury by Dr. Sayeed between July 21, 2017, and October 3 1, 2017, was not
in accord with the prevailing standards of accepted medical practice with causally related
injury to the patient, as set forth in the bills of particulars dated January 15, 2019. All opinions
stated in this affirmation are held by me based upon that review with a reasonable degree of
medical certainty as a hand surgeon.
3. The statement of claims, medical records, and deposition testimony I have
reviewed give a comprehensive picture of the accidental injury sustained by Mr. Bonavita on
July 21, 2017, his treatment by Dr. Sayeed, and the ultimate outcome of the injury and
treatment by Dr. Sayeed, Mr. Roselli, and Dr. Greenberg. In my opinion there was no
departure from the accepted standards of care for the management of the hand injury by Dr.
Sayeed either in the initial hospital care or in the follow-up care rendered in his office. This
type of hand injury is one I have seen and treated on many occasions, and the standards of
care with respect to the management of such injuries are the same for plastic surgeons who
perform hand surgery as they are for orthopedic surgeons who treat the same patients. In
assessing the outcome of the treatment, it is also my opinion that there is no evidence that the
patient sustained any injury or damages as a consequence of the claimed omissions or acts of
Dr. Sayeed in this lawsuit.
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4. Mr. Bonavita sustained a serious injury to delicate structures in the back of his
right hand which was caused by his hand striking a glass pane which shattered and caused
multiple wounds. He was transported by ambulance to the Emergency Department of North
Shore University Hospital, where he came under the care of Dr. Sayeed, who was the on-call
attending consultant in plastic surgery and hand surgery at the time of his arrival. The injury
to the patient’s hand involved injury to the skin and the extensor tendon structures beneath the
skin in the back of the patient’s right hand, which required the attention of a surgeon trained
in hand surgery to explore the wounds and repair the tissues, with efforts to minimize or
prevent further injury and decrease the chances that scarring in the healing process would
produce lasting disability. The nature and extent of the original injury was such that serious
disability was on the spectrum of possible outcome even with prompt and correct treatment.
5. In his firstencounter with the patient, Dr. Sayeed properly informed Mr.
Bonavita of the nature of the injury and the various options for treatment. The patient
appreciated the severity of the injury and informed Dr. Sayeed that he was acquainted with
Dr. Burt Greenberg, another hand surgeon who was on the staff at North Shore University
Hospital. Dr. Sayeed arranged a telephone conversation between the patient and Dr.
Greenberg to allow the patient to discuss the treatment option of a staged repair by Dr.
Greenberg, who was traveling and not immediately available. After discussion with Dr.
Greenberg and Dr. Sayeed, Mr. Bonavita chose to undergo exploration of the wound and
repair of the injuries by Dr. Sayeed in the Emergency Room on the date of the injury without
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a staged repair. This was a procedure which was well within the competence of Dr. Sayeed,
and it was an appropriate treatment alternative for both doctor and patient.
6. Dr. Sayeed examined the wound and confirmed the determination that it was
safe to proceed to perform the repair under suitably sterile conditions in the Emergency
Department. The patient did not require microvascular repair or tendon retrieval and would
not have expected to have any benefit from repair in the operating room or use of an operating
microscope in an operating room, as opposed to the method of repair without magnification
employed by Dr. Sayeed. The repair in the Emergency Department without magnification
was an appropriate treatment alternative within the hand surgery standard of care at the time
and place of treatment.
7. Hand injuries from broken glass are a fairly common injury treated in the
practice of hand surgery. It is known that fragments of glass of various sizes may remain in
the patient’s wounds before or after the surgical repair is performed. The description of the
repair using enlargement of the wound, direct inspection, and steel instruments for tactile
identification of glass fragments, demonstrates that Dr. Sayeed was aware of the standard of
care for attempting to identify and remove retained glass fragments. He also advised the
patient that following the repair, there would be the possibility of retained fragments of glass
which could be addressed in a subsequent procedure if that were necessary. Dr. Sayeed
demonstrated the knowledge of the appropriate concern for retained glass fragments, without
being overly aggressive in exploring the wounds and causing unwarranted trauma and
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increased scarring in a search for foreign bodies which may or may not have been present or
problematic.
8. At the conclusion of the repair surgery by Dr. Sayeed, the extensor tendons he
repaired were seen to be functioning properly, and x-rays of the right hand showed no
evidence of retained foreign bodies which were large enough to be seen on x-ray. The repair
ofthe tendon mechanism and skin were appropriately performed by Dr. Sayeed, his operative
technique as described by him in his operative report and deposition testimony was standard,
and his choices of equipment and suture material were within the applicable standard of care.
When the patient was discharged from the Emergency Department to be followed by Dr.
Sayeed in his office his wounds had been properly explored, his injuries had been
appropriately repaired, and the patient had been instructed on the need for occupational
therapy which is vital to the effort to maintain as much normal function of the hand as possible
despite the serious injury. The treatment was rendered with recognition of the tendency of
normal healing processes to create scar tissue and limitation of the use of the hand, which are
in turn known to cause a spectrum of disability in appropriately treated cases. Despite the
proper management of the injury up until the patient left the hospital, therapy and follow-up
care was required because it could not be predicted how the healing would progress or what
the residual effects of the injury would be.
9. The patient was seen thereafter at proper intervals in follow-up care by Dr.
Sayeed. Under the direction of the doctor, the patient underwent occupational therapy with a
qualified occupational therapist, Mr. Roselli, whose records show that the appropriate
5
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splinting and occupational therapy was administered over the requisite period of months. The
patient had residual pain, numbness, decreased strength, and stiffness in his hand, but this was
the expected result of the initial injury and was not a consequence of decisions or actions of
Dr. Sayeed. The postoperative care by the occupational therapist and Dr. Sayeed was at all
points appropriate to the condition presented by the patient and within the applicable standard
of care.
10. During the postoperative course, the skin wounds healed without difficulty, but
the patient complained of localized tenderness on the back of his right ring finger. X-ray study
of October 4, 2017, demonstrated findings thought to be consistent with the retention of small
foreign bodies, which in this case would suggest glass fragments in the wounds. The patient
had understood the possibility that further treatment might be required to address retained
foreign bodies, and with his consent, Dr. Sayeed performed a limited exploration of the area
under local anesthesia in his office but found no foreign bodies. Although infection is a
complication of the injury, the initial repair, and the subsequent exploration for foreign bodies,
the patient was thankfully able to avoid any sign of postoperative infection.
11. The patient ultimately saw Dr. Greenberg who arranged for an MRI of the area
of concern at the back of the right ring finger. That imaging was likewise interpreted as
showing findings which were consistent with retained foreign bodies. In discussion with Dr.
Greenberg of further exploration, the patient was reminded that foreign bodies may not be
found or removable, and that the return of 100% of hand function may not be possible.
6
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12. The patient was encouraged by Dr. Greenberg to return to Dr. Sayeed for
further treatment, but the patient continued to see Dr. Greenberg who explained to him the
options for further care. The patient underwent a third procedure by Dr. Greenberg on October
31, 2017, again with the understanding that the surgery was complex and may not restore
1 00% of function to the injured right hand. The patient received no lasting relief of symptoms
or increase in functional use of the right hand following the third procedure.
13. Both before and after Dr. Greenberg’s surgery, the patient continued to receive
occupational therapy from Mr. Roselli. Although there were compliance issues from the
patient’s side, the therapy was appropriate in type and duration, and some return of normal
function was obtained by Mr. Bonavita. Unfortunately, he did not achieve full return of
function despite the efforts of Dr. Sayeed, Mr. Roselli, and Dr. Greenberg.
14. The injured structures in the patient’s right hand, including the extensor
tendons, radial lateral band extensor structures, and the metacarpophalangeal joint capsule
were correctly repaired by Dr. Sayeed at the first surgical procedure on the date of Mr.
Bonavita’s injury. Residual extensor mechanism imbalance and dysfunction of the type he
developed is unfortunately very common after the type of injury he sustained. Appropriate
surgical management and proper hand therapy are sometimes unable to achieve a better
treatment outcome, and this in my opinion explains the residual difficulties which Mr.
Bonavita had following the treatment of Dr. Sayeed.
15. The bill of particulars contains allegations that there was a negligent failure to
assess the risk of the presence of foreign bodies in the wounds, and a negligent failure to
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identify foreign bodies in the wound. The evidence in the records of treatment and the
deposition testimony is to the contrary in that itwas clearly recognized that there could be
foreign bodies in the wounds at each stage of the treatment. The efforts to identify and remove
any foreign bodies on the part of Dr. Sayeed were judicious and appropriate, with the
understanding that the risk of further injury to the internal structures that control use and
movement of the hand and fingers has to be balanced against the risk of retained foreign bodies
as it was by Dr. Sayeed. The bill of particulars also suggests that the incomplete recovery of
hand function and mobility was a result of negligent treatment by Dr. Sayeed as an employee
of Precision Surgery of New York, P.C. There is no evidence to support that claim. The
unfortunate outcome which was experienced by Mr. Bonavita is well within the spectrum of
outcome for the initial injury he sustained, even in the presence of the best of hand surgery
care and occupational therapy. It is urged that the Court should take action consistent with
the lack of merit to the claims that errorsor omissions in treatment by Dr. Sayeed caused
injury to Mr. Bonavita. In my opinion with reasonable medical certainty, as explained above,
there is no merit to those claims.
Dated: Bronx, New York
August (J, 2022
'
/6 R^G.
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Preview
FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022 017-2118/19 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU —X DINO BONAVITA, AFFIRMATION IN Plaintiff, SUPPORT OF MOTION FOR SUMMARY -against- JUDGMENT SYED MUJAHID SAYEED, M.D., PRECISION Index No.: 61 1506/2018 SURGERY OF NEW YORK, P.C., NORTH SHORE UNIVERSITY HOSPITAL, and NORTHWELL HEALTH, Defendants. X Roy G. Kulick, M.D., a physician duly licensed in the State of New York, affirms under penalty of perjury as follows: 1. I am a 1 973 graduate of Cornell University School of Medicine, with residency training in orthopedic surgery at New York Presbyterian Hospital and fellowship training in hand and shoulder surgery at the Hospital for Special Surgery. After six years of postgraduate training, I became board certified by examination in orthopedic surgery as well as obtaining the certificate of added qualification in hand surgery from the American Board of Orthopedic Surgery. I have since that time practiced as a full time hand surgeon and since 2001, 1 have been the Director of the Hand Service at Montefiore Medical Center where I continue to practice and teach as an Associate Professor of Orthopedic Surgery. 2. At the request of counsel for Dr. Syed M. Sayeed and his professional corporation, Precision Surgery of New York, P.C., I have reviewed the complaint; bills of particulars; medical records of North Shore University Hospital, Dr. Sayeed, and Dr. (DN/00247591J ) 1 of 8 FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022 Greenberg; photographs; occupational therapy records of Nick Roselli, O.T.; records of Glen Cove Hospital; and deposition testimony of Dino Bonavita and Syed Sayeed, M.D. I was retained to render an opinion as to the validity of the claims that the management of Mr. Bonavita’s hand injury by Dr. Sayeed between July 21, 2017, and October 3 1, 2017, was not in accord with the prevailing standards of accepted medical practice with causally related injury to the patient, as set forth in the bills of particulars dated January 15, 2019. All opinions stated in this affirmation are held by me based upon that review with a reasonable degree of medical certainty as a hand surgeon. 3. The statement of claims, medical records, and deposition testimony I have reviewed give a comprehensive picture of the accidental injury sustained by Mr. Bonavita on July 21, 2017, his treatment by Dr. Sayeed, and the ultimate outcome of the injury and treatment by Dr. Sayeed, Mr. Roselli, and Dr. Greenberg. In my opinion there was no departure from the accepted standards of care for the management of the hand injury by Dr. Sayeed either in the initial hospital care or in the follow-up care rendered in his office. This type of hand injury is one I have seen and treated on many occasions, and the standards of care with respect to the management of such injuries are the same for plastic surgeons who perform hand surgery as they are for orthopedic surgeons who treat the same patients. In assessing the outcome of the treatment, it is also my opinion that there is no evidence that the patient sustained any injury or damages as a consequence of the claimed omissions or acts of Dr. Sayeed in this lawsuit. 2 ( DN/0024759 1 ; 1 } 2 of 8 FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022 4. Mr. Bonavita sustained a serious injury to delicate structures in the back of his right hand which was caused by his hand striking a glass pane which shattered and caused multiple wounds. He was transported by ambulance to the Emergency Department of North Shore University Hospital, where he came under the care of Dr. Sayeed, who was the on-call attending consultant in plastic surgery and hand surgery at the time of his arrival. The injury to the patient’s hand involved injury to the skin and the extensor tendon structures beneath the skin in the back of the patient’s right hand, which required the attention of a surgeon trained in hand surgery to explore the wounds and repair the tissues, with efforts to minimize or prevent further injury and decrease the chances that scarring in the healing process would produce lasting disability. The nature and extent of the original injury was such that serious disability was on the spectrum of possible outcome even with prompt and correct treatment. 5. In his firstencounter with the patient, Dr. Sayeed properly informed Mr. Bonavita of the nature of the injury and the various options for treatment. The patient appreciated the severity of the injury and informed Dr. Sayeed that he was acquainted with Dr. Burt Greenberg, another hand surgeon who was on the staff at North Shore University Hospital. Dr. Sayeed arranged a telephone conversation between the patient and Dr. Greenberg to allow the patient to discuss the treatment option of a staged repair by Dr. Greenberg, who was traveling and not immediately available. After discussion with Dr. Greenberg and Dr. Sayeed, Mr. Bonavita chose to undergo exploration of the wound and repair of the injuries by Dr. Sayeed in the Emergency Room on the date of the injury without 3 {DN/0024759 1 ; I} 3 of 8 FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022 a staged repair. This was a procedure which was well within the competence of Dr. Sayeed, and it was an appropriate treatment alternative for both doctor and patient. 6. Dr. Sayeed examined the wound and confirmed the determination that it was safe to proceed to perform the repair under suitably sterile conditions in the Emergency Department. The patient did not require microvascular repair or tendon retrieval and would not have expected to have any benefit from repair in the operating room or use of an operating microscope in an operating room, as opposed to the method of repair without magnification employed by Dr. Sayeed. The repair in the Emergency Department without magnification was an appropriate treatment alternative within the hand surgery standard of care at the time and place of treatment. 7. Hand injuries from broken glass are a fairly common injury treated in the practice of hand surgery. It is known that fragments of glass of various sizes may remain in the patient’s wounds before or after the surgical repair is performed. The description of the repair using enlargement of the wound, direct inspection, and steel instruments for tactile identification of glass fragments, demonstrates that Dr. Sayeed was aware of the standard of care for attempting to identify and remove retained glass fragments. He also advised the patient that following the repair, there would be the possibility of retained fragments of glass which could be addressed in a subsequent procedure if that were necessary. Dr. Sayeed demonstrated the knowledge of the appropriate concern for retained glass fragments, without being overly aggressive in exploring the wounds and causing unwarranted trauma and 4 {DN/00247S91;! ) 4 of 8 FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022 increased scarring in a search for foreign bodies which may or may not have been present or problematic. 8. At the conclusion of the repair surgery by Dr. Sayeed, the extensor tendons he repaired were seen to be functioning properly, and x-rays of the right hand showed no evidence of retained foreign bodies which were large enough to be seen on x-ray. The repair ofthe tendon mechanism and skin were appropriately performed by Dr. Sayeed, his operative technique as described by him in his operative report and deposition testimony was standard, and his choices of equipment and suture material were within the applicable standard of care. When the patient was discharged from the Emergency Department to be followed by Dr. Sayeed in his office his wounds had been properly explored, his injuries had been appropriately repaired, and the patient had been instructed on the need for occupational therapy which is vital to the effort to maintain as much normal function of the hand as possible despite the serious injury. The treatment was rendered with recognition of the tendency of normal healing processes to create scar tissue and limitation of the use of the hand, which are in turn known to cause a spectrum of disability in appropriately treated cases. Despite the proper management of the injury up until the patient left the hospital, therapy and follow-up care was required because it could not be predicted how the healing would progress or what the residual effects of the injury would be. 9. The patient was seen thereafter at proper intervals in follow-up care by Dr. Sayeed. Under the direction of the doctor, the patient underwent occupational therapy with a qualified occupational therapist, Mr. Roselli, whose records show that the appropriate 5 (DN/0024759 1 ; I) 5 of 8 FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022 splinting and occupational therapy was administered over the requisite period of months. The patient had residual pain, numbness, decreased strength, and stiffness in his hand, but this was the expected result of the initial injury and was not a consequence of decisions or actions of Dr. Sayeed. The postoperative care by the occupational therapist and Dr. Sayeed was at all points appropriate to the condition presented by the patient and within the applicable standard of care. 10. During the postoperative course, the skin wounds healed without difficulty, but the patient complained of localized tenderness on the back of his right ring finger. X-ray study of October 4, 2017, demonstrated findings thought to be consistent with the retention of small foreign bodies, which in this case would suggest glass fragments in the wounds. The patient had understood the possibility that further treatment might be required to address retained foreign bodies, and with his consent, Dr. Sayeed performed a limited exploration of the area under local anesthesia in his office but found no foreign bodies. Although infection is a complication of the injury, the initial repair, and the subsequent exploration for foreign bodies, the patient was thankfully able to avoid any sign of postoperative infection. 11. The patient ultimately saw Dr. Greenberg who arranged for an MRI of the area of concern at the back of the right ring finger. That imaging was likewise interpreted as showing findings which were consistent with retained foreign bodies. In discussion with Dr. Greenberg of further exploration, the patient was reminded that foreign bodies may not be found or removable, and that the return of 100% of hand function may not be possible. 6 ( DN/0024759 1 ; 1) 6 of 8 FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022 12. The patient was encouraged by Dr. Greenberg to return to Dr. Sayeed for further treatment, but the patient continued to see Dr. Greenberg who explained to him the options for further care. The patient underwent a third procedure by Dr. Greenberg on October 31, 2017, again with the understanding that the surgery was complex and may not restore 1 00% of function to the injured right hand. The patient received no lasting relief of symptoms or increase in functional use of the right hand following the third procedure. 13. Both before and after Dr. Greenberg’s surgery, the patient continued to receive occupational therapy from Mr. Roselli. Although there were compliance issues from the patient’s side, the therapy was appropriate in type and duration, and some return of normal function was obtained by Mr. Bonavita. Unfortunately, he did not achieve full return of function despite the efforts of Dr. Sayeed, Mr. Roselli, and Dr. Greenberg. 14. The injured structures in the patient’s right hand, including the extensor tendons, radial lateral band extensor structures, and the metacarpophalangeal joint capsule were correctly repaired by Dr. Sayeed at the first surgical procedure on the date of Mr. Bonavita’s injury. Residual extensor mechanism imbalance and dysfunction of the type he developed is unfortunately very common after the type of injury he sustained. Appropriate surgical management and proper hand therapy are sometimes unable to achieve a better treatment outcome, and this in my opinion explains the residual difficulties which Mr. Bonavita had following the treatment of Dr. Sayeed. 15. The bill of particulars contains allegations that there was a negligent failure to assess the risk of the presence of foreign bodies in the wounds, and a negligent failure to 7 (DN/00247591;! } 7 of 8 FILED: NASSAU COUNTY CLERK 08/30/2022 01:47 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 08/30/2022 identify foreign bodies in the wound. The evidence in the records of treatment and the deposition testimony is to the contrary in that itwas clearly recognized that there could be foreign bodies in the wounds at each stage of the treatment. The efforts to identify and remove any foreign bodies on the part of Dr. Sayeed were judicious and appropriate, with the understanding that the risk of further injury to the internal structures that control use and movement of the hand and fingers has to be balanced against the risk of retained foreign bodies as it was by Dr. Sayeed. The bill of particulars also suggests that the incomplete recovery of hand function and mobility was a result of negligent treatment by Dr. Sayeed as an employee of Precision Surgery of New York, P.C. There is no evidence to support that claim. The unfortunate outcome which was experienced by Mr. Bonavita is well within the spectrum of outcome for the initial injury he sustained, even in the presence of the best of hand surgery care and occupational therapy. It is urged that the Court should take action consistent with the lack of merit to the claims that errorsor omissions in treatment by Dr. Sayeed caused injury to Mr. Bonavita. In my opinion with reasonable medical certainty, as explained above, there is no merit to those claims. Dated: Bronx, New York August (J, 2022 ' /6 R^G. 8 (DN/002J7J91 ;l ) 8 of 8