Preview
FILED: KINGS COUNTY CLERK 10/05/2021 11:49 AM INDEX NO. 508009/2013
NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 10/05/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------x
N.G., an Infant, by his Mother and Natural Guardian,
SHERRI SKIDMORE, Index No.: 508009/2013
Plaintiff, ATTORNEY AFFIRMATION
-against-
VASUSHA VISWANATHAN, M.D., CALIXTO
CAZANO, M.D., RAJENDRA BHAYANI, M.D.,
FERNANDO GINEBRA, M.D., SONY LOISEAU,
M.D. and WYCHOFF HEIGHTS MEDICAL CENTER,
Defendants.
----x
GINETTE M. PORTERA, an attorney licensed to practice in the State ofNew York, hereby
affirms the following under penalty of perjury:
1. I am an attorney with the LAW OFFICF S OF BENVENUTO & SLATTERY,
attorneys for RAJENDRA BHAYANI, M.D. in the above-captioned case. As such, I am fully
familiar with the facts and proceedings relevant to the instant matter.
2. This affirmation is submitted in support of the motion on behalf of Dr. Bhayani for
suniniary judgment pursuant to CPLR 3212. As set forth below, Dr. Bhayani is entitled to
judgnieñt because he did not breach professional of care owed to the infant-
summary any duty
plaintiff and nothing that he did or did not do was a proximate cause of or a substantial factor in
any of the injuries alleged by plaintiff.
3. Thus, there exist no issues of fact a trial. The complaint and cross-
requiring any
claims as against Dr. Bhayani should be dismissed.
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PROCEDURAL BACKGROUND
4. This action was commenced by the filing of the summons and verified complaint
with the Kings County Clerk's Office on or about December 17, 2013 (Exhibit "A"). A Verified
Answer on behalf of Dr. Bhayani was filed and served on or about January 31, 2013 (Exhibit
"B").1
A Verified Bill of Particulars was served on or about May 30, 2014 (Exhibit "C").
5. Party depositions have been completed. Plaintiff testified on October 23, 2015 and
"D"
May 17, 2016 (Exhibits and "E"). Dr. Viswanathan testified on June 21, 2016 (Exhibit
"F"). Dr. Cazano testified on October 2, 2019 (Exhibit "G"). Dr. Ginebra testified on May 12,
2021 (Exhibit "H"). Dr. Bhayani testified on June 1, 2021 (Exhibit "I").
6. Plaintiff filed a Note of Issue on August 6, 2021 (Exhibit "J"). Thus, the instant
motion is timely.
LEGAL ARGUMENT
7. CPLR 3212 provides that a motion for summary judgment "shall be granted if,upon
all the papers and proof submitted, the cause of action or defense shall be established sufficiently
party."
to warrant the court as a matter of law in directing judgment in favor of any
8. The proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). 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 that require a trial of the action. Id.; see also Zuckerman v. The
City of New York, 49 NY2d 557 (1980).
1 the as
Answers served on behalf of co-defendants are also annexed hereto Exhibit "B".
2
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9. In a medical malpractice action, a plaintiff, in opposition to a defendant physician's
summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie
showing by the defendant that it was not negligent in treating plaintiff so as to demonstrate the
existence of a triable issue of fact. Alvarez, supra. General allegations of medical malpractice,
merely conclusory and unsupported by competent evidence tending to establish the essential
elements of medical malpractice, are insufficient to defeat a defendant physician's summary
judgment motion. Id.; see also Horth v. Mansur, 243 A.D.2d 1041 (3rd Dept. 1997) (speculation
cannot substitute for a causal link between the defendant's care and the plaintiff's alleged injury).
10. As demonstrated below, BHAYANI has made a prima facie showing that he was
not negligent in treating the infant-plaintiff. Plaintiff will be unable to sustain his burden to
demonstrate the existence of a triable issue of fact, and summary judgment should be granted.
11. The law is well settled that the requisite elements of proof in a medical malpractice
action are a deviation or departure from accepted practice and evidence that such departure was a
proximate cause of injury or damage. See Amsler v. Verilli, 119 AD2d 786 (2nd Dept. 1986). To
carry the burden of proving a prima facie case, the plaintiff must generally show that the
defendant's negligence was a substantial factor in the injury. Prete v. Rafla-
producing
Demetrious, 224 AD2d 674, 675 (2nd Dept. 1996). Expert testimony is necessary to prove a
deviation from accepted standards of medical care and to establish proximate cause, unless the
matter is one that is within the experience and observation of the ordinary juror. M., at 675-76.
12. As set forth in the Affirmation of Michael Setzen, M.D., annexed hereto as Exhibit
"K", there was no deviation or departure from accepted practice by Dr. Bhayani and there is no
evidence that anything Dr. Bhayani did or did not do was the proximate cause of or a substantial
factor in the infant-plaintiff's subsequent injuries.
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13. Plaintiff is alleging negligence against Dr. Bhayani in connection with care and
treatment provided to the infant-plaintiff, then 32 days old, on April 2, 2009, at Wyckoff. (Records
from Wyckoff are annexed hereto as Exhibit "L".) Plaintiff is claiming that the intubation of the
infant was negligently performed, resulting in various injuries, including respiratory issues,
including asthma, frequent colds, and pneumonia, and possible developmental delays.
14. Importantly, there is no evidence that Dr. Bhayani was involved with any decisions
relating to anesthesia or efforts to intubate the infant-plaintiff once the laryngospasm occurred.
His involvement in the patient's care was limited to scheduling the procedure to remove the skin
tag, and then cancelling the procedure once the laryngospasms occurred. Both decisions were
entirely appropriate decisions and well within the standard of care. Moreover, there is no
indication that the intubation was negligently performed. It can be extremely difficult in a young
infant who goes into laryngospasm. The presence of a skin tag will not interfere with intubation
at all. Nor was the skin tag itself the cause of any laryngeal airway problems.
15. As to causation, itis entirely speculative to suggest that the short period of laryngeal
airway compromise caused the alleged injuries, including brain damage and/or developmeñtal
delay.
16. In sum, there was no deviation or departure from accepted practice by Dr. Bhayani.
Moreover, there is no evidence that anything Dr. Bhayani did or did not do was the proximate
cause of or a substantial factor in the injuries alleged by plaintiff.
17. For the foregoing reasons, plaintiff has failed to raise a triable issue of fact and
summary judgment is therefore appropriate. The Complaint and any cross-claims as against Dr.
Bhayani should be dismissed.
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WHEREFORE, itis therefore requested that the Court grant summary judgment in favor
of Dr. Bhayani, and against plaintiff, together with such other and further relief as the Court deems
just and proper.
Dated: Roslyn, New York
October 5, 2021
Ginette M. Portera
5
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Preview
FILED: KINGS COUNTY CLERK 10/05/2021 11:49 AM INDEX NO. 508009/2013 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 10/05/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------x N.G., an Infant, by his Mother and Natural Guardian, SHERRI SKIDMORE, Index No.: 508009/2013 Plaintiff, ATTORNEY AFFIRMATION -against- VASUSHA VISWANATHAN, M.D., CALIXTO CAZANO, M.D., RAJENDRA BHAYANI, M.D., FERNANDO GINEBRA, M.D., SONY LOISEAU, M.D. and WYCHOFF HEIGHTS MEDICAL CENTER, Defendants. ----x GINETTE M. PORTERA, an attorney licensed to practice in the State ofNew York, hereby affirms the following under penalty of perjury: 1. I am an attorney with the LAW OFFICF S OF BENVENUTO & SLATTERY, attorneys for RAJENDRA BHAYANI, M.D. in the above-captioned case. As such, I am fully familiar with the facts and proceedings relevant to the instant matter. 2. This affirmation is submitted in support of the motion on behalf of Dr. Bhayani for suniniary judgment pursuant to CPLR 3212. As set forth below, Dr. Bhayani is entitled to judgnieñt because he did not breach professional of care owed to the infant- summary any duty plaintiff and nothing that he did or did not do was a proximate cause of or a substantial factor in any of the injuries alleged by plaintiff. 3. Thus, there exist no issues of fact a trial. The complaint and cross- requiring any claims as against Dr. Bhayani should be dismissed. 1 of 5 FILED: KINGS COUNTY CLERK 10/05/2021 11:49 AM INDEX NO. 508009/2013 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 10/05/2021 PROCEDURAL BACKGROUND 4. This action was commenced by the filing of the summons and verified complaint with the Kings County Clerk's Office on or about December 17, 2013 (Exhibit "A"). A Verified Answer on behalf of Dr. Bhayani was filed and served on or about January 31, 2013 (Exhibit "B").1 A Verified Bill of Particulars was served on or about May 30, 2014 (Exhibit "C"). 5. Party depositions have been completed. Plaintiff testified on October 23, 2015 and "D" May 17, 2016 (Exhibits and "E"). Dr. Viswanathan testified on June 21, 2016 (Exhibit "F"). Dr. Cazano testified on October 2, 2019 (Exhibit "G"). Dr. Ginebra testified on May 12, 2021 (Exhibit "H"). Dr. Bhayani testified on June 1, 2021 (Exhibit "I"). 6. Plaintiff filed a Note of Issue on August 6, 2021 (Exhibit "J"). Thus, the instant motion is timely. LEGAL ARGUMENT 7. CPLR 3212 provides that a motion for summary judgment "shall be granted if,upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently party." to warrant the court as a matter of law in directing judgment in favor of any 8. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). 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 that require a trial of the action. Id.; see also Zuckerman v. The City of New York, 49 NY2d 557 (1980). 1 the as Answers served on behalf of co-defendants are also annexed hereto Exhibit "B". 2 2 of 5 FILED: KINGS COUNTY CLERK 10/05/2021 11:49 AM INDEX NO. 508009/2013 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 10/05/2021 9. In a medical malpractice action, a plaintiff, in opposition to a defendant physician's summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant that it was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact. Alvarez, supra. General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion. Id.; see also Horth v. Mansur, 243 A.D.2d 1041 (3rd Dept. 1997) (speculation cannot substitute for a causal link between the defendant's care and the plaintiff's alleged injury). 10. As demonstrated below, BHAYANI has made a prima facie showing that he was not negligent in treating the infant-plaintiff. Plaintiff will be unable to sustain his burden to demonstrate the existence of a triable issue of fact, and summary judgment should be granted. 11. The law is well settled that the requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage. See Amsler v. Verilli, 119 AD2d 786 (2nd Dept. 1986). To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial factor in the injury. Prete v. Rafla- producing Demetrious, 224 AD2d 674, 675 (2nd Dept. 1996). Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause, unless the matter is one that is within the experience and observation of the ordinary juror. M., at 675-76. 12. As set forth in the Affirmation of Michael Setzen, M.D., annexed hereto as Exhibit "K", there was no deviation or departure from accepted practice by Dr. Bhayani and there is no evidence that anything Dr. Bhayani did or did not do was the proximate cause of or a substantial factor in the infant-plaintiff's subsequent injuries. 3 3 of 5 FILED: KINGS COUNTY CLERK 10/05/2021 11:49 AM INDEX NO. 508009/2013 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 10/05/2021 13. Plaintiff is alleging negligence against Dr. Bhayani in connection with care and treatment provided to the infant-plaintiff, then 32 days old, on April 2, 2009, at Wyckoff. (Records from Wyckoff are annexed hereto as Exhibit "L".) Plaintiff is claiming that the intubation of the infant was negligently performed, resulting in various injuries, including respiratory issues, including asthma, frequent colds, and pneumonia, and possible developmental delays. 14. Importantly, there is no evidence that Dr. Bhayani was involved with any decisions relating to anesthesia or efforts to intubate the infant-plaintiff once the laryngospasm occurred. His involvement in the patient's care was limited to scheduling the procedure to remove the skin tag, and then cancelling the procedure once the laryngospasms occurred. Both decisions were entirely appropriate decisions and well within the standard of care. Moreover, there is no indication that the intubation was negligently performed. It can be extremely difficult in a young infant who goes into laryngospasm. The presence of a skin tag will not interfere with intubation at all. Nor was the skin tag itself the cause of any laryngeal airway problems. 15. As to causation, itis entirely speculative to suggest that the short period of laryngeal airway compromise caused the alleged injuries, including brain damage and/or developmeñtal delay. 16. In sum, there was no deviation or departure from accepted practice by Dr. Bhayani. Moreover, there is no evidence that anything Dr. Bhayani did or did not do was the proximate cause of or a substantial factor in the injuries alleged by plaintiff. 17. For the foregoing reasons, plaintiff has failed to raise a triable issue of fact and summary judgment is therefore appropriate. The Complaint and any cross-claims as against Dr. Bhayani should be dismissed. 4 4 of 5 FILED: KINGS COUNTY CLERK 10/05/2021 11:49 AM INDEX NO. 508009/2013 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 10/05/2021 WHEREFORE, itis therefore requested that the Court grant summary judgment in favor of Dr. Bhayani, and against plaintiff, together with such other and further relief as the Court deems just and proper. Dated: Roslyn, New York October 5, 2021 Ginette M. Portera 5 5 of 5