Preview
INDEX NO. 717964/2018
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 02/06/2022
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE _ PETER J. O’7DONOGHUE IA Part MD
Justice FILED
12/6/2021
COUNTY CLERK
THERESA ROBINSON and DEREK ROBINSON, QUEENS COUNTY,
x Index
Plaintiffs, Number 717964 2018
-against- Motion
Date August 25, 2021
NORTHWELL HEALTH, INC.,
Defendants. Motion Seq. No. 5
xX
The following papers read on this motion by defendants Northwell Health Inc. and Long
Island Jewish Medical Center (LIJMC)) move for an order dismissing all of plaintiffs’
allegations relating to the April 12, 2016 admission and delivery on the grounds of statute
of limitations; dismissing all allegations against Northwell Health Inc; granting summary
judgment dismissing the complaint; and amending the caption to delete Northwell Health Inc.
and LIJMC as defendants in this action and severing them from this action; and permitting
Northwell Health Inc. and LIJMC to enter a judgment with the Clerk of the Court against
plaintiff with statutory costs and disbursements.
Papers
Numbered
Notice of Motion-Statement of Material Facts-Affirmations-Exhibits.. EF 120-147
Opposing Affirmations-Exhibits
Reply Affirmation.....
Upon the foregoing papers this motion is determined as follows:
Theresa Robinson initially received pre-natal care at LIIMC Women for Women
Obstetrics & Gynecology. On December 8, 2015, her pre-natal care was transferred to
Deepak Nanda M.D., P.C., who then maintained an office solely in Rego Park, New York.
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Ms. Robinson was examined by Dr. Deepak Nanda at said private practice, and was also seen
at said private practice by Dr. Emmanuel M. Pafos, an employee of Deepak Nanda, M.D.,
P.C. Dr. Nanda had previously delivered Ms. Robinson’s first child in 2009, via an
emergency cesarian section due to fetal distress.
Dr. Nanda and Dr. Pafos testified at their depositions that in 2016, they were
employed by LIJMC and by Deepak Nanda, M.D., P.C.. Ms. Robinson testified at her
deposition that she transferred to Dr. Nanda’s office where she received the remainder of her
pre-natal care. On April 12, 2016, Ms. Robinson was admitted to LIJMC, at approximately
2:00 a.m., at which time there was rupture of membranes. LIJMC staff members discussed
her plan of care with Dr. Nanda. Dr. Nanda testified that Ms. Robinson was admitted to the
service of his private practice, and that he monitored her labor until Dr. Pafos took over later
that evening. Dr. Nanda and Dr. Pafos both testified that when Pafos took over for Nanda
on the evening of April 12, 2016, he was working for the private practice. Following a trial
of labor after a cesarian, fetal tachycardia was noted and Dr. Pafos performed an emergency
cesarian section on April 13, 2016, that began at approximately 12:30 a.m. Ms. Robinson
gave birth to a healthy girl. During the cesarian section procedure, a uterine rupture and
bladder injury were observed and Dr. Pafos and the resident under his supervision performed
a uterine repair and Dr. Omid Rofeim, a urologist, repaired the bladder. A Foley catheter
was placed along with JP drains which was monitored by urology. Ms. Robinson was
discharged from the hospital on April 17, 2016, with the catheter in place. On April 25,
2016, a CT performed at LIJMC, showed an intact bladder repair and Dr. Rofein removed
the Foley catheter on the same day. Ms. Robinson did not thereafter return to LIJMC or to
Dr. Rofein regarding the repair to the uterus or bladder. She had two follow-up visits with
Dr. Pafos for postpartum care at the Rego Park office of Deepak Nanda, M.D. P.C. on Apri
28, 2016 and May 23, 2016.
Plaintiffs commenced the within action on November 22, 2018, and allege causes o:
action against defendants Northwell Health, Inc., LIIMC, Deepak Nanda, M.D. P.C., Deepak
Nanda, M.D., and Emmanuel M. Pafos, M.D., for medical malpractice, lack of informed
consent, and a derivative cause of action for loss of services. Plaintiffs also assert a cause
of action against LIJMC for negligent credentialing and the negligent failure to adequately
proctor and monitor its medical staff, including the co-defendants. In their verified
complaint plaintiffs allege that defendants’ negligent acts and omissions occurred on Apri
13, 2016 through May 23, 2016. With respect to LIJMC and Northwell Health Inc., plaintiffs
in their bill of particulars allege that the negligent acts and omissions occurred from Apri
12, 2016 to April 17, 2016.
Defendants Northwell Health Inc. and LIJMC have each served an answer and
interposed affirmative defenses, including statute of limitations. Said defendants now move
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for summary judgment dismissing the complaint in its entirety on the grounds of statute of
limitations and other grounds.
At the outset, defendant Northwell Health Inc. has established, prima facie its
entitlement to summary judgment dismissing the complaint in its entirety. In support of the
motion, defendants have submitted an affirmation from Avraham Z. Schwartz, an attorney
employed by Northwell Health Inc., as the Vice-President of the Medical Malpractice
Program, Corporate Risk Management. Mr. Schwartz states that he is familiar with the
corporate status of Northwell Health Inc. and its corporate relationship to LIJMC, as well as
applicable liability insurance coverage relative to this action; that Northwell Health Inc. is
a not-for-profit corporation and is the corporate parent of LIJMC; that Northwell Health Inc.
does not render and has never rendered medical care; that LIJMC maintains professional
liability insurance through Northwell Health Inc., and that said insurance is not affected by
whether Northwell Health Inc. is named a party in this action and that no additional insurance
coverage is available by virtue of naming Northwell Health Inc. as a party to this action.
Plaintiffs’ in opposition has failed to present any evidence that defendant Northwell
Health Inc. provided any medical services to Ms. Robinson. Plaintiffs’ claims against
Northwell Health Inc. for medical malpractice, lack of informed consent and loss of
consortium therefore, are dismissed.
Plaintiffs’ claims against LIJMC for medical malpractice, whether alleged directly or
based upon vicariously liability, and for lack of informed consent are governed by a two and
a half year statute of limitations (CPLR 214-a; see also Bleiler v Bodnar, 65 NY2d 65
1985]; (Murriello v Crapotta, 51 AD2d 381 [2d Dept 1976]). “To dismiss a cause of action
pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of
imitations, a defendant bears the initial burden of demonstrating, prima facie, that the time
within which to commence the action has expired” (Campone v Panos, 142 AD3d 1126,
127 [2d Dept 2016], quoting Stewart v GDC Tower at Greystone, 138 AD3d 729, 729 [2d
Dept 2016]; see Geotech Enters., Inc. v 181 Edgewater, LLC, 137 A.D.3d 1213, 1214 [2d
Dept 2016]; Vissichelli v Glen—Haven Residential Health Care Facility, Inc., 136 AD3d
021, 1022 [2d Dept 2016]; Barry v Cadman Towers, Inc., 136 AD3d 951, 952 [2d Dept
2016]). “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a
question of fact as to whether the statute of limitations was tolled or otherwise inapplicable,
or whether the plaintiff actually commenced the action within the applicable limitations
period” (Campone v Panos, 142 AD3d at 1127, quoting Barry v Cadman Towers, Inc., 136
AD3d at 951; see Stewart v GDC Tower at Greystone, 138 AD3d at 730; Geotech Enters.,
Inc. v_ 181 Edgewater, LLC, 137 AD3d at 1214; Vissichelli v Glen—Haven Residential
Health Care Facility, Inc., 136 AD3d at 1022).
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Here, the evidence presented establishes that on April 12, 2016, plaintiff Theresa
Robinson was admitted to LIJMC as a patient of Dr. Nanda, in his capacity as a private
attending physician and not as an employee of LIJMC. Ms. Robinson’s labor was initially
monitored by Dr. Nanda, who was at her bedside several times on April 12, 2016, until Dr.
Pafos took over at approximately 5:00 p.m. on April 12, 2016, and later that night first saw
her at her bedside at approximately 10:55 p.m. On April 13, 2016, following a trial of labor,
fetal tachycardia was noted and Dr. Pafos performed an emergency cesarian section, and Ms.
Robinson gave birth to a healthy daughter. During the cesarian section procedure, a uterine
rupture and bladder injury were observed. Dr. Pafos and a resident under his supervision
performed a uterine repair and Dr. Omid Rofeim, a urologist, repaired the bladder. A Foley
catheter was placed along with JP drains which was monitored by urology. Ms. Robinson
was discharged from the hospital on April 17, 2016, with the catheter in place. On April 25,
2016, a CT performed at LIJMC, showed an intact bladder repair and Dr. Rofein removed
the Foley catheter on the same day. Ms. Robinson did not thereafter return to LISMC
regarding the repair to her uterus, and did not return to LIJMC or or to Dr. Rofein regarding
the repair to her bladder. She had two follow-up visits with Dr. Pafos for postpartum care
at the Rego Park office of Deepak Nanda, M.D. P.C. on April 28, 2016 and May 23, 2016.
Dr. Pafos found nothing remarkable on both visits and on May 23, 2016, determined that no
further follow-up was necessary. Ms. Robinson did not return to said private practice after
May 23, 2016.
Based upon the foregoing, defendant LIJMC has established, prima facie, that the
within action against it was untimely commenced. Plaintiffs do not assert any claims against
LIJMC based upon the bladder repair performed by Dr. Rofein, or the CT scan and the
removal of the Foley catheter on April 25, 2016. However, even if the statute of limitations
accrued, at the latest on April 25, 2016, the date the catheter was removed, it expired no later
than October 26, 2018, which was well before the commencement of the within action
against LIJMC on November 22, 2018.
Plaintiffs, in opposition, have failed to raise a question of fact as to whether the
statute of limitations was tolled pursuant to the continuous treatment doctrine (see Curcio v
Ippolito, 63 NY2d 967, 969 [1984]; McDermott v Torre, 56 NY2d 399 [1982]; see also
Campone v Panos, 142 AD3d 1126, 1127 [2d Dept 2016]). The evidence presented
establishes that as of December 8, 2015, Ms. Robinson became a patient of Deepak Nanda,
M.D. P.C., and that from that date onward the medical care and treatment Dr. Nanda and Dr.
Pafos provided Ms. Robinson was solely in their capacities as employees of said professional
corporation. There is no evidence that either Dr. Nanda or Dr. Pafos acted as employees of
LIJMC during Ms. Robinson’s labor and delivery, or during the follow-up postpartum office
visits on April 28, 2016 and May 23, 2016.
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Plaintiffs’ reliance upon CPLR 203(b) is misplaced. CPLR 203(b) by its terms, only
applies where a plaintiff seeks to name an additional defendant after the expiration of the
statute of limitations. As the within action was commenced against all of the defendants on
November 22, 2018, the united in interest and relation-back doctrines are inapplicable here.
Mr. Robinson’s claim for loss of consortium is governed by a three year statute of
limitations (see CPLR 214; Chambers v Mirkinson, 68 AD3d 702 [2d Dept 2009]; Schrank
v Lederman, 52 AD3d 494,497[2d Dept 2008]), and was timely commenced against LIJMC.
However, as the loss of consortium claim against LIJMC is based upon the untimely causes
of action for medical malpractice and lack of informed consent, this derivative claim must
also be dismissed as against said defendant (see generally Liff'v Schildkrout, 49 NY2d 622
[1980]; Wright v Morning Star Ambulette Services Inc., 170 AD3d 1249 [2d Dept 2019];
Wittrock v Maimonides Medical Center-Maimonides Hosp., 119 AD2d 748 [2d Dept 1986]).
Plaintiffs’ claim of negligent hiring and negligent credentialing against LIJMC is
governed by a three year statute of limitations (see CPLR 214; Schrank v Lederman, 52
AD3d at 497), and the within action was timely commenced as to this cause of action. As
defendant LIJMC does not address this claim in its moving papers, summary judgment is not
appropriate at this juncture.
Accordingly, that branch of defendants’ motion which seeks to dismiss the complaint
in its entirety as to Northwell Health Inc. is granted and the request to delete the movants
from the caption is granted solely as to Northwell Health Inc. The new caption shall read as
follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
THERESA ROBINSON and DEREK ROBINSON
Plaintiffs
-against- Index No. 717964 2018
LONG ISLAND JEWISH MEDICAL CENTER,
DEEPAK NANDA M.D.,P.C., and EMMANUEL PAFOS, M.D.
Defendants.
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That branch of defendants’ motion which seeks summary judgment dismissing the
complaint against LIJMC on the grounds of statute of limitations is granted as to the causes
of action for medical malpractice, lack of informed consent and loss of consortium. To the
extent that defendants also seek summary judgment dismissing the cause of action against
LIJMC for negligent hiring and negligent credentialing, that branch of the motion is denied.
That branch of defendants’ motion which seeks a bill of costs and disbursements, is granted
solely as to Northwell Health Inc. The Clerk of the Court is directed to enter a judgment
accordingly.
Dated: December 6, 2021
FILED
12/6/2021
COUNTY CLERK
QUEENS COUNTY,
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