Preview
INDEX NO. 717964/2018
NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 08/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
THERESA ROBINSON and DEREK ROBINSON,
Index No.: 717964/2018
Plaintiffs,
SUPPLEMENTAL
AFFIRMATION
-against- IN SUPPORT OF MOTION
NORTHWELL HEALTH, INC, LONG ISLAND
JEWISH MEDICAL CENTER, DEEPAK NANDA,
MD, PC, DEEPAK NANDA M.D., EMMANUEL
M. PAFOS, M.D.
Defendants.
weceeeeeenccceeceeeenseeeeeeceeeeneneeseeeeceeeeeeeeseneeeeeceeeeeeee x
Anthony X anthakis, Esq., an attorneys at law, duly licensed in the State of New Y ork,
affirms the following under penalty of perjury:
1. Iam amember of Galvano & Xanthakis PC and as such I am fully familiar with the
facts and circumstances of this case.
2. I submit this supplemental affirmation in support of defendant, EMMANUEL M.
PAFOS MD’s motion for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's
complaint and for such other and further relief which this court deems just and proper.
3. This affirmation is submitted to supplement the motion for summary judgment filed
on June 15, 2021. Itis filed within the deadline imposed by this court for making a summary
judgment motion which is June 16, 2021. This affirmation is filed to incorporate the affirmation
of Jay Stephen Lupin, MD filed by defendants Northwell and LIJ Hospital on June 16, 2021.
(Exhibit A, affirmation of Jay Stephen Lupin, MD)
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4. With respect to plaintiffs’ specific claims of medical malpractice pertaining to Dr.
Pafos, Dr. Lupin has affirmed as follows:
Notwithstanding no departure by LIJMC orits staff, itis my opinion that
the bladder injury and uterine rupture did not result from a departure from the
standard of care by the defendant hospital or its staff. Both are complications of
aTOLAC and can occur even without any departure from the standard of care.
Further, my review of the detailed operative report of Dr. Pafos reflects a proper
exercise of surgical judgment. (Exhibit A-paragraph 25)
Notwithstanding Dr. Pafos’ responsibility as the private surgeon for
making all the surgical decisions, including the timing, it is my opinion to a reasonable
degree of medical certainty that there were no deviations from the standard of care
in connection with the performance of the cesarean section. The surgery was
performed by an experienced board-eligible OB/GY N physician with significant
training in labor, delivery and cesarean sections, the care at issue. I found no
evidence of surgical error. Dr. Pafos’ credentials, training, board-eligibility, and
having performed this surgery on multiple occasions, suggest that he was well qualified.
As the attending private physician, Dr. Pafos directed and supervised
Dr. Shekarloo as a resident. Dr. Pafos exercised good and acceptable surgical
judgment, including with respect to his repair of the uterus and promptly seeking
and obtaining an intraoperative urology consultation for the bladder injury. (Exhibit A-paragraph
21)
My review of the records reflects that TOLAC was approved by Dr. Nanda and that
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the timing and decision to perform an emergency cesarean section was determined by Dr. Pafos.
The patient admitted she agreed to proceed with the surgery, given that there was concer for the
baby’s health. Irrespective of LIMC’s role, or lack thereof, in deciding whether a cesarean
section was appropriate, the surgery was indicated in light of the unresolved, recurrent
decelerations. (Exhibit A-paragraph 20)
The patient’s experienced OB/GYN physicians, who were intimately familiar with her
prenatal care and medical history, determined the mode of delivery, including to attempt a
TOLAC, and ultimately, to perform an emergency cesarean section which was in the best interest
of the patient and her baby. (Exhibit A-paragraph 19)
Each attending confirmed that they provided prenatal care to the patient, monitored her
pregnancy through ultrasounds and office visits, and that they were well aware of the patient’s
history of a cesarean section. In fact, Dr. Nanda delivered the patient’s first child via cesarean
section due to a non-reassuring fetal heart rate. The testimony of the private attendings further
confirm that this was their private patient, admitted to their care, and that they made the
judgments with respect to the manner of delivery. The patient expressed her desire to proceed
with a TOLAC and consent was obtained and documented. A dditionally, Dr. Nanda testified that
there was no indication to offer a cesarean section while he provided the care for the patient,
and Dr. Pafos, who assumed care after him, confirmed that it was his decision to
perform a cesarean section at the time he did. With regard to the adhesions, in particular, I agree
with Dr. Pafos that the degree and extent of same cannot be predicted with any certainty.
Adhesions, which are bans of scar tissue, can cause internal organs, such as the uterus and
bladder to be stuck together. (Exhibit A-paragraph 16)
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Regarding the complications which resulted, it is my opinion to a reasonable degree of
medical certainty that they were appropriately managed by the private attending. Dr. Pafos, and
the supervised resident, immediately performed a uterine repair and contacted a urologist to
repair the bladder. A Foley catheter was placed, along with JP drains, all of which were
monitored by urology up until the patient was discharged. There were no pertinent urological
findings suggesting that the Foley was improperly placed or that there were any complications
with the catheter. Further, the patient was instructed to follow up with the urologist and with her
private OB/GY N physician for scar inspection and postpartum visits. A CT performed on A pril
25, 2016 revealed an intact bladder repair. Consequently, on the same day, urologist, Dr. Rofeim,
discontinued the Foley catheter. While the patient testified that she has had bladder leakage and
other urological symptoms since, she has not sought treatment from a urologist in more than four
years, nor is there any testing or assessment of the bladder or evaluation of her symptoms by any
urologist or physician. (Exhibit A-paragraph 11)
5. With respect to plaintiff’s specific claims of failure to obtain informed consent before
performing a cesarean section, Dr.. Lupin has affirmed as follows:
As to the cause of the uterine rupture, it is my opinion that the
mechanism of the rupture cannot be precisely identified. Dr. Pafos testified that he
encountered it intraoperatively and that the bladder was also stuck to the anterior
uterus. My review of the copious charting by the nurses and the physicians reveal
no earlier indications of a uterine rupture. Nevertheless, a uterine rupture and injury
to organs in the abdomen and pelvic area are known risks of a TOLAC. Dr. Nanda
testified that, by custom and practice, he would have reviewed with the patient the
risks associated with a TOLAC. Specifically, he would have discussed the
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likelihood of a rupture of the uterus, which would be less than 1% of the time and
a 2 % percent chance of scar separation. Additionally, before performing the
cesarean section, Dr. Pafos, documented in his attending note that he discussed
with the patient the risk of injury to the organs and uterus. Moreover, this was an
emergency situation. The baby’s life was at risk, and no reasonable patient in the
patient’s position would have refused a cesarean section. (Exhibit A-paragraph 10)
I find that the emergency cesarean section was indicated at the time the decision was
made by Dr. Pafos due to unresolved recurrent fetal heart decelerations. The patient had an
informed consent discussion with her private physician, Dr. Pafos, and, notwithstanding same,
the hospital had no role with regard to consenting a private patient for an emergency surgery by
her private physician. (Exhibit A-paragraph 7)
The incontrovertible evidence herein is that the patient was under the management of her
private board-certified and board-eligible obstetricians and gynecologists, Dr. Nanda and Dr.
Pafos. Both private attendings managed her obstetrical and gynecological care prior, during
and subsequent to the delivery admission. Dr. Nanda determined in his judgment
that a trial of labor after cesarean was appropriate and Dr. Pafos timely and appropriately
determined in his judgment that an emergency cesarean section was indicated in light of
unresolved, recurrent fetal heart rate decelerations. (Exhibit A-paragraph 6).
WHEREFORE, the undersigned respectfully submits that the motion of defendant,
Emmanuel M. Pafos MD, for summary judgment pursuant to CPLR 3212 should be granted,
dismissing plaintiffs’ complaint.
Respectfully Submitted,
Gucthorag Kertthobis
Anthony Xanthakis
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I, Anthony X anthakis Esq., certify that the Affirmation in Support and Supplemental
Affirmation in Support complies with the word count and page count limits as set forth in the
Uniform Civil Rules for the Supreme Court Rule 202.8-b. The Supplemental A ffirmation in
Support contains 1416 and combined with the word count in the A ffirmation in Support totals
5688 words.
Gucthorag Kertthobis
Anthony Xanthakis
6 of 6(FILED: QUEENS COUNTY CLERK 02/08/2022 05:10 PM INDEX NO. 717964/2018
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EXHIBIT ANYSCEF DOC. NO. 188
SUPREME COURT OF THE STA
COUNTY OF QUEENS
INDEX NO. 717964/2018
RECEIVED NYSCEF: 08/06/2022
TE OF NEW YORK
THERESA ROBINSON and DEREK ROBINSON,
-against-
NORTHWELL HEALTH, INC., LON
MEDICAL CENTER, DEEPAK NAN
NANDA, M.D. and EMMANUEL PA
Index No.: 717964/2018
Plaintiff,
EXPERT AFFIRMATION
G ISLAND J EWISH
DA, M.D., P.C., DEEPAK
FOS, M.D.,
Defendant.
J AY STEPHEN LUPIN, M.D., a physician duly licensed to practice medicine
in the State of New York, hereby affirms and states the following under the
penalties of perjury:
1. | ama physician licensed
am
Board Certified in the field of Obs
to practice medicine in New York State and |
etrics & Gynecology. | obtained my medical
degree from Tulane University School of Medicine in New Orleans, Louisiana.
Following my graduation from medi
ical school in 1978, | completed my internship
and subsequent residency in Obste'
Medicine. | maintain an active pra
trics & Gynecology at Albert Einstein School of
ctice wherein | see and treat obstetrical and
gynecological patients, prenatally, during labor, as well as during and after vaginal
deliveries or cesarean sections. As such, | am fully familiar with the standards of
accepted medical care relating to the issues raised in this matter.
2. This Expert Affirmation is
submitted in support of the motion for summary
judgment on behalf of defendants, NORTHWELL HEALTH, INC. and LONGy INDEX NO. 717964/2018
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ISLAND J EWISH MEDICAL CENTER. The bases for my opinions, all of which
are to a reasonable degree of medical certainty, are my knowledge and experience
in the field of Obstetrics & Gynecology, as well as my review of the pleadings,
verified bill of particulars, deposition testimony, and pertinent medical records
including the records of DEEPAK NANDA M.LD., P.C., LONG ISLAND J EWISH
MEDICAL CENTER (“LJ MC”) and OMID ROFEIM, M.D.
ALLEGATIONS
3. My review of plaintiffs Bill of Particulars revealed the following
allegations
against Northwell Health, Inc. and LIJ MC: that during the April 12, 2016 delivery
admission at Ll) MC, the defendants departed from good and accepted medical
practice in failing to timely perform a C-section, delaying the C-section; negligently
attempting vaginal delivery despite her past obstetric and gynecological history;
failed to anticipate her abdominal adhesions in light of her past gynecological and
obstetrical history; and failed to advise her of the material risks, benefits and
alternatives to the vaginal delivery and C-section; and failed to properly document
events which occurred in the operating room.
4. Itis claimed that, prior to the Cesarean section, the defendants failed to
properly monitor the plaintiff, identify and report abnormal findings in the labor and
deliver unit, including timely and properly reporting episodes of late decelerations
and other abnormal fetal heart rhythms observed from the fetal heart monitor.
Plaintiff claims that the defendants failed to timely implement nursing interventions
in response to the episodes of late decelerations and other abnormal fetal heartNYSCEF DOC. NO. 188
rhythms. Plaintiff claims that the defendants failed to timely diagnose and prevent
her uterine rupture; and negligently caused her bladder injury. Plaintiff also claims
defendants negligently inserted a Foley catheter, and that the hospital failed to
supervise the nurses or hire and retain qualified medical providers.
5. Further, plaintiff claims that defendants failed to have in effect or follow
its
Policies and Procedures in the labor and delivery unit related to communications
between nurses and physicians, monitoring of patients, staffing of the unit,
insertion of Foley catether, reporting of abnormal findings and the taking of
medical, gynecological and obstetrical history.
OPINION
6. Itis my opinion to a reasonable degree of medical certainty that the
care provided by the hospital and its staff in connection with the patient's April 12,
2016 delivery admission was at all times within the standard of care without any
deviation. Any claim by the patient that LI) MC failed to properly or timely
diagnose, manage and/or treat plaintiff, is fully negated by the patient's medical
records and the testimony adduced herein. The incontrovertible evidence herein
is that the patient was under the management of her private board-certified and
board-eligible obstetricians and gynecologists, Dr. Nanda and Dr. Pafos. Both
private attendings managed her obstetrical and gynecological care prior, during
and subsequent to the delivery admission. Dr. Nanda determined in his judgment
that a trial of labor after cesarean was appropriate and Dr. Pafos timely and
appropriately determined in his judgment that an emergency cesarean section was
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indicated in light of unresolved, recurrent fetal heart rate decelerations.
7. | find no support for plaintiff's claim that the hospital improperly
recommended a trial of labor, improperly performed the April 13, 2016 cesarean
section or improperly managed the plaintiff's labor and delivery, as all of the
foregoing were under the management and supervision of her private OB/GYN,
Dr. Nanda and Dr. Pafos. | find that the emergency cesarean section was indicated
at the time the decision was made by Dr. Pafos due to unresolved recurrent fetal
heart decelerations. The patient had an informed consent discussion with her
private physician, Dr. Pafos, and, notwithstanding same, the hospital had no role
with regard to consenting a private patient for an emergency surgery by her private
physician.
8. The hospital provided continuous nursing care, live fetal monitoring and
repeated nursing assessments, all of which are documented in the records. There
is no support for plaintiff's claim that the patient was not monitored or that the
nurses failed to heed any abnormal findings or fetal heart rhythms. In fact, the
record and the testimony is replete with references to timely interventions which
were taken in response to late, prolonged or recurrent decelerations, as well as
pain and pressure, among other things. This included repositioning the patient,
administering oxygen and IV fluids, and seeking the assistance of physicians
where the late or prolonged decelerations did not resolve with the interventions.
Pitocin was also administered and adjusted in accordance with physician’s orders.
All three nurses who participated in this labor and delivery testified that this was
the policy and procedure of the hospital as it relates to fetal monitoring, negating
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the plaintiff's claim of the absence of policies and procedures or the failure to
adhere to them. Plaintiff's contention or suggestion that physicians be notified of
every single deceleration, is not only impractical, but is not required by the
standard of care. The standard of care requires physician interventions where
standard nursing interventions do not resolve the decelerations. Moreover, the
attendings themselves testified to continuously watching the fetal monitor tracings
displayed throughout the hospital and to frequently evaluating the plaintiff and
baby. Consequently, the record does not support any failure on the part of the
hospital to inform the attendings of significant abnormal findings or the progress of
labor.
9. With regard to the timing of the cesarean section, the timing of the
cesarean section was appropriately determined by the patient's private attending
managing her care, and not the hospital staff. The patient was under the care of
her private attendings at all times during her labor and delivery.
10.As to the cause of the uterine rupture, it is my opinion that the
mechanism
of the rupture cannot be precisely identified. Dr. Pafos testified that he
encountered it intraoperatively and that the bladder was also stuck to the anterior
uterus. My review of the copious charting by the nurses and the physicians reveal
no earlier indications of a uterine rupture. Nevertheless, a uterine rupture and injury
to organs in the abdomen and pelvic area are known risks of a TOLAC. Dr. Nanda
testified that, by custom and practice, he would have reviewed with the patient the
risks associated with a TOLAC. Specifically, he would have discussed the
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likelihood of a rupture of the uterus, which would be less than 1% of the time and
a 2 % percent chance of scar separation. Additionally, before performing the
cesarian section, Dr. Pafos, documented in his attending note that he discussed
with the patient the risk of injury to the organs and uterus. Moreover, this was an
emergency situation. The baby’s life was at risk, and no reasonable patient in the
patient's position would have refused a cesarean section.
11.Regarding the complications which resulted, itis my opinion to a
reasonable degree of medical certainty that they were appropriately managed by
the private attending. Dr. Pafos, and the supervised resident, immediately
performed a uterine repair and contacted a urologist to repair the bladder. A Foley
catheter was placed, along with J P drains, all of which were monitored by urology
up until the patient was discharged. There were no pertinent urological findings
suggesting that the Foley was improperly placed or that there were any
complications with the catheter. Further, the patient was instructed to follow up
with the urologist and with her private OB/GYN physician for scar inspection and
postpartum visits. A CT performed on April 25, 2016 revealed an intact bladder
repair. Consequently, on the same day, urologist, Dr. Rofeim, discontinued the
Foley catheter. While the patient testified that she has had bladder leakage and
other urological symptoms since, she has not sought treatment from a urologist in
more than four years, nor is there any testing or assessment of the bladder or
evaluation of her symptoms by any urologist or physician.
12.The patient never returned to LI) MC for any treatment with respect to
theNYSCEF DOC. NO. 188
delivery admission or complications, or to see Dr. Rofeim after the April 25, 2016
visit. Plaintiff also never reported any complaints to the hospital or to Dr. Rofeim
subsequently. She also never returned to either medical provider regarding her
repaired uterus or bladder. Consequently, there is no continuous treatment by
LI) MC or its staff relating to the care at issue.
Specific Departures
13.With respect to plaintiffs allegation that the movants failed to have
policies
and procedures in place in the labor and delivery unit, this is negated by the
testimony of the providers herein. First, | note that a large number of the policies
and procedures plaintiff claims do not exist, were not covered in the testimony |
reviewed or ever explored to substantiate this claim; for example, there was no
inquiry as to staffing of the labor and delivery unit or insertion of Foley catheters.
It is also unclear what is meant by “access to patient's medical records.” Second,
itis also unclear if plaintiff is referring to policies and procedures governing nursing
or the private attending’s care, especially as it relates to cesarean sections;
cesarean sections, in particular, are completely outside the scope of nursing care.
Nurses do not perform cesarean sections and do not decide if or whether one
should be performed. As a practicing OB/GYN physician for over 40 years, | can
state with a reasonable degree of medical certainty that the performance of
cesarean sections are solely within the scope, judgment and practice of the
patient's private attendings, not the nurses who were monitoring the patient. Third,
all four nurses testified to existing policies and procedures and how they adhered
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to same. Specifically, the labor and delivery nurses all testified to nursing
interventions and communications with physicians with regard to significant
findings during labor, including unresolved late, prolonged and recurrent fetal heart
decelerations observed on fetal monitoring strips. They testified to policies with
regard to documenting in the chart and monitoring labor and delivery patients. NP
Brodsky specifically testified to the procedure for admitting patients, obtaining an
obstetrical history, reviewing the patient's existing prenatal records, and reviewing
the plan of care with the patient's private attending and obtaining approval of the
plan from the attending.
14. Regarding the caliber of the hospital personnel who provided care to this
patient, the testimony confirms that they were highly credentialed and experienced.
They all possessed the requisite education, training and experience as reflected in
their testimony and Curricula Vitae. The plaintiff's private physician Dr. Nanda has
been practicing over forty (40) years, is board certified in Obstetrics & Gynecology,
is a subspecialist in Maternal Fetal Medicine, has taught multiple residents as a
clinical assistant professor and is the principal of an Obstetrics & Gynecology
practice. Plaintiff's other private attending, Dr. Pafos, graduated from medical
school in 2011, completed his four-year OB/GYN residency, has performed over
500 cesarean sections and is board eligible with full surgical privileges at LI) MC.
Parenthetically, | note that it was not a departure from the standard of care by the
hospital to allow a board-eligible, experienced physician to perform a cesarean
section. All the nurses were licensed to practice and were experienced in labor
and delivery, or, in the case of Nurse Siegel, was being closely supervised and
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followed by a preceptor while she provided care to the patient. The residents were
also supervised by the attendings, as expected at a teaching hospital such as
LI) MC. Consequently, there is no merit to these allegations that any of the medical
providers were negligently hired, granted hospital privileges or that they were
inexperienced.
15.With regard to plaintiff's allegation that the movants failed to report,
identify
or observe late decelerations or abnormal fetal heart rhythms, these claims are
inconsistent with the records and testimony. The nurses regularly documented all
abnormal heart rhythms and recorded the interventions they made with respect to
the decelerations. They testified to repositioning the patient, administering
supplemental oxygen and increasing IV fluids to resolve late, prolonged and
recurrent decelerations. Where the decelerations did not resolve, they notified the
private attendings. The attendings themselves also confirmed that they were
continuously watching the fetal monitors and evaluating the patient frequently. Dr.
Nanda testified that he was at the bedside “many times” and that, each time, he or
his resident would review the tracings, review the progress of labor and discuss
this with the patient. He further testified that he would review late decelerations to
see if there were “significant late deceleration or just significant, which [they] see
in practically every patient [sic] labor.” Consequently, any claim of failure to notify
the physicians of abnormal findings is fully negated. Moreover, it is my opinion to
a reasonable degree of medical certainty that, given that there was no injury to the
baby, it is unclear what, if anything, the notification, or lack of notification ofy INDEX NO. 717964/2018
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abnormal heart rhythms, has on the injuries the patient is claiming in this case.
While the fetal tracings gave the OB/GYN the indications for the emergency
cesarean section, the bladder injury and uterine rupture sustained were not caused
by the baby’s heart rhythms. There is no relationship between the heart rhythms
and the outcome of the cesarean section.
16.Regarding the allegations that LI) MC failed to timely perform a cesarean
section, negligently attempted to perform a vaginal delivery despite her previous
cesarean section, failed to anticipate adhesions from her past obstetrical history,
delayed the cesarean section or failed to advise her of the material risks and
benefits and alternatives to vaginal delivery and cesarean section, the hospital had
no responsibility with regard to any of the foregoing as the patient was at all times
under the management of her experienced private attendings. Each attending
confirmed that they provided prenatal care to the patient, monitored her pregnancy
through ultrasounds and office visits, and that they were well aware of the patient's
history of a cesarean section. In fact, Dr. Nanda delivered the patient's first child
via cesarean section due to a non-reassuring fetal heart rate. The testimony of the
private attendings further confirm that this was their private patient, admitted to
their care, and that they made the judgments with respect to the manner of
delivery. The patient expressed her desire to proceed with a TOLAC and consent
was obtained and documented. Additionally, Dr. Nanda testified that there was no
indication to offer a cesarean section while he provided the care for the patient,
and Dr. Pafos, who assumed care after him, confirmed that it was his decision to
perform a cesarean section at the time he did. With regard to the adhesions, iny INDEX NO. 717964/2018
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particular, | agree with Dr. Pafos that the degree and extent of same cannot be
predicted with any certainty. Adhesions, which are bans of scar tissue, can cause
internal organs, such as the uterus and bladder to be stuck together. It is therefore
my opinion to a reasonable degree of medical certainty that neither the hospital,
nor its staff, departed from the standard of care with respect to the cesarean
section, including its timing, performance or outcome.
17.With regard to the diagnoses of the bladder injury and uterine rupture,
there were no departures from the standard of care by the hospital with respect to
same. The diagnoses were made intraoperatively by Dr. Pafos, and there were
no earlier indications of these injuries.
18.With regard to the supervision of hospital staff, it is my opinion to a
reasonable degree of medical certainty that the hospital staff was properly
supervised during the patient's labor and delivery. Nurse Siegel testified in detail
that she was supervised her entire shift by her preceptor, Nurse Melin Torres-
Perez. The preceptor reviewed the patient's care with her, supervised Nurse
Siegel's care, discussed significant findings, including decelerations; and reviewed
everything Nurse Siegel documented. At no point did Nurse Siegel act
independently, and the chart confirms they were charting simultaneously. All the
nurses worked directly with the residents and attendings as reflected in the chart
and testimony. In addition to nurses, the residents who provided care where also
directly supervised by the private attendings. Dr. Nanda testified to his supervision
of the residents and Dr. Pafos also testified to supervising the resident who
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resident for the entire surgery. He emphasized that every single aspect of the
surgery was performed under his direct supervision and he was intimately involved
“in every step of the way.” Nothing was done without the attending’s knowledge,
direction or supervision. The attendings and staff heeded the nurses’ advice,
including with respect to fetal monitoring and complaints by the patient, and this is
specifically documented in the chart. This patient was monitored continuously by
both nurses and OB/GYN physicians, as reflected in the charting of the patient's
labor and delivery course, including the charting of significant findings and
interventions.
19. It is my opinion that, upon the patient's presentation to LIJ MC, a
detailed, comprehensive and proper medical, obstetrical and gynecological history
was obtained, and appropriate labor and delivery monitoring and care was
employed, to include the fetal monitoring and timely nursing interventions;
significant findings, timely interventions and the monitoring of the patient by her
private attendings. The patient's experienced OB/GYN physicians, who were
intimately familiar with her prenatal care and medical history, determined the mode
of delivery, including to attempt a TOLAC, and ultimately, to perform an emergency
cesarean section which was in the best interest of the patient and her baby. Ll) MC
made its operating room and facilities available, fully prepped and staffed, for the
patient's emergency surgery.
20.Itis further my opinion to a reasonable degree of medical certainty that
neither the nurses, nor the hospital, had any role in the decision-making as to
whether the patient’s cesarean section was indicated, and that neither LI) MC, norNYSCEF DOC. NO. 188
its staff, had any role in deciding the manner or timing of the delivery, including,
but, not limited to whether the plaintiff should have a TOLAC ora cesarean section.
My review of the records reflects that TOLAC was approved by Dr. Nanda and that
the timing and decision to perform an emergency cesarean section was
determined by Dr. Pafos. The patient admitted she agreed to proceed with the
surgery, given that there was concern for the baby’s health. Irrespective of Ll) MC's
role, or lack thereof, in deciding whether a cesarean section was appropriate, the
surgery was indicated in light of the unresolved, recurrent decelerations.
21.Notwithstanding Dr. Pafos’ responsibility as the private surgeon for
making
all the surgical decisions, including the timing, it is my opinion to a reasonable
degree of medical certainty that there were no deviations from the standard of care
in connection with the performance of the cesarean section. The surgery was
performed by an experienced board-eligible OB/GYN physician with significant
training in labor, delivery and cesarean sections, the care at issue. | found no
evidence of surgical error. Dr. Pafos’ credentials, training, board-eligibility, and
having performed this surgery on multiple occasions, suggest that he was well-
qualified. As the attending private physician, Dr. Pafos directed and supervised
Dr. Shekarloo as a resident. Dr. Pafos exercised good and acceptable surgical
judgment, including with respect to his repair of the uterus and promptly seeking
and obtaining an intraoperative urology consultation for the bladder injury.
22.Dr. Pafos confirmed that he directed, instructed and supervised the
chief resident, Dr. Shekarloo, during the entirety of the procedure, and that she
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followed all his instructions. Dr. Shekarloo surgically assisted under his direct
supervision and to his satisfaction, and in doing so, did not exercise any
independent judgment. Dr. Pafos also confirmed that Dr. Shekarloo did not do
anything which was not under his control. Moreover, the detailed operative reports
support a proper exercise of surgical judgment in performing the cesarean section
and repairing the bladder and uterus.
23.Additionally, | found no orders or directives by the private attendings
which would warrant inquiry by LIJ MC staff into their correctness, or deviation
therefrom. Moreover, there are no indications from the record as to the need for
any inquiries into their directives or orders, given their years of experience and
having performed many cesarean sections as testified to by same. Moreover, it
would have been inappropriate and beyond the standard of care for LI) MC or its
staff to formulate a different plan of care from that of the patient's specialists who
were intimately familiar with this patient’s history and followed the patient prior and
subsequent to the surgery at Ll) MC.
24.Not once since her hospital discharge, or since her April 25, 2016 visit
with
urologist, Dr. Rofeim, did the patient return to the hospital or complain to anyone
at the hospital regarding the complications from her delivery. She never once
reported any untoward condition or presented to the hospital for any treatment
whatsoever with respect to the injuries she alleges she sustained from the delivery.
There was no follow up with the hospital or any evidence that the patient had any
reasonable expectation of care from the hospital or was under the management of
INDEX NO. 717964/2018
RECEIVED NYSCEF: 08/06/2022y INDEX NO. 717964/2018
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/06/2022
up with the hospital or any evidence that the patient had any reasonable expectation of
care from the hospital or was under the management of same since the aforesaid date.
25.Notwithstanding no departure by LIJMC or its staff, itis my opinion that
the bladder injury and uterine rupture did not result from a departure from the standard
of care by the defendant hospital or its staff. Both are complications of a TOLAC and
can occur even without any departure from the standard of care. Further, my review of
the detailed operative report of Dr. Pafos reflects a proper exercise of surgical judgment!
26.In conclusion, it my opinion to a reasonable degree of medical certainty
that the patient was properly assessed during her delivery admission to LIJMC; that
Proper and appropriate policies and protocols were carried out throughout patient's
admission, including fetal monitoring and the heeding and communication of abriorrial
fetal heart decelerations; that the staff were properly trained and credentialed; and that
the injuries being claimed herein did not result from a departure from the standard ‘bf
care by LIJMC or its staff. The injuries sustained by the patient were well-known and
accepted risks of a TOLAC, and the patient consented to same.
Therefore, for the reasons outlined above, | respectfully request that this Motion
1, OE
for Summary judgment be granted in its entirety.
Dated: New York, New York
June \¢ 2021
Preview
INDEX NO. 717964/2018 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 08/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS THERESA ROBINSON and DEREK ROBINSON, Index No.: 717964/2018 Plaintiffs, SUPPLEMENTAL AFFIRMATION -against- IN SUPPORT OF MOTION NORTHWELL HEALTH, INC, LONG ISLAND JEWISH MEDICAL CENTER, DEEPAK NANDA, MD, PC, DEEPAK NANDA M.D., EMMANUEL M. PAFOS, M.D. Defendants. weceeeeeenccceeceeeenseeeeeeceeeeneneeseeeeceeeeeeeeseneeeeeceeeeeeee x Anthony X anthakis, Esq., an attorneys at law, duly licensed in the State of New Y ork, affirms the following under penalty of perjury: 1. Iam amember of Galvano & Xanthakis PC and as such I am fully familiar with the facts and circumstances of this case. 2. I submit this supplemental affirmation in support of defendant, EMMANUEL M. PAFOS MD’s motion for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's complaint and for such other and further relief which this court deems just and proper. 3. This affirmation is submitted to supplement the motion for summary judgment filed on June 15, 2021. Itis filed within the deadline imposed by this court for making a summary judgment motion which is June 16, 2021. This affirmation is filed to incorporate the affirmation of Jay Stephen Lupin, MD filed by defendants Northwell and LIJ Hospital on June 16, 2021. (Exhibit A, affirmation of Jay Stephen Lupin, MD) 1 of 6INDEX NO. 717964/2018 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 08/06/2022 4. With respect to plaintiffs’ specific claims of medical malpractice pertaining to Dr. Pafos, Dr. Lupin has affirmed as follows: Notwithstanding no departure by LIJMC orits staff, itis my opinion that the bladder injury and uterine rupture did not result from a departure from the standard of care by the defendant hospital or its staff. Both are complications of aTOLAC and can occur even without any departure from the standard of care. Further, my review of the detailed operative report of Dr. Pafos reflects a proper exercise of surgical judgment. (Exhibit A-paragraph 25) Notwithstanding Dr. Pafos’ responsibility as the private surgeon for making all the surgical decisions, including the timing, it is my opinion to a reasonable degree of medical certainty that there were no deviations from the standard of care in connection with the performance of the cesarean section. The surgery was performed by an experienced board-eligible OB/GY N physician with significant training in labor, delivery and cesarean sections, the care at issue. I found no evidence of surgical error. Dr. Pafos’ credentials, training, board-eligibility, and having performed this surgery on multiple occasions, suggest that he was well qualified. As the attending private physician, Dr. Pafos directed and supervised Dr. Shekarloo as a resident. Dr. Pafos exercised good and acceptable surgical judgment, including with respect to his repair of the uterus and promptly seeking and obtaining an intraoperative urology consultation for the bladder injury. (Exhibit A-paragraph 21) My review of the records reflects that TOLAC was approved by Dr. Nanda and that 2 of 6INDEX NO. 717964/2018 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 08/06/2022 the timing and decision to perform an emergency cesarean section was determined by Dr. Pafos. The patient admitted she agreed to proceed with the surgery, given that there was concer for the baby’s health. Irrespective of LIMC’s role, or lack thereof, in deciding whether a cesarean section was appropriate, the surgery was indicated in light of the unresolved, recurrent decelerations. (Exhibit A-paragraph 20) The patient’s experienced OB/GYN physicians, who were intimately familiar with her prenatal care and medical history, determined the mode of delivery, including to attempt a TOLAC, and ultimately, to perform an emergency cesarean section which was in the best interest of the patient and her baby. (Exhibit A-paragraph 19) Each attending confirmed that they provided prenatal care to the patient, monitored her pregnancy through ultrasounds and office visits, and that they were well aware of the patient’s history of a cesarean section. In fact, Dr. Nanda delivered the patient’s first child via cesarean section due to a non-reassuring fetal heart rate. The testimony of the private attendings further confirm that this was their private patient, admitted to their care, and that they made the judgments with respect to the manner of delivery. The patient expressed her desire to proceed with a TOLAC and consent was obtained and documented. A dditionally, Dr. Nanda testified that there was no indication to offer a cesarean section while he provided the care for the patient, and Dr. Pafos, who assumed care after him, confirmed that it was his decision to perform a cesarean section at the time he did. With regard to the adhesions, in particular, I agree with Dr. Pafos that the degree and extent of same cannot be predicted with any certainty. Adhesions, which are bans of scar tissue, can cause internal organs, such as the uterus and bladder to be stuck together. (Exhibit A-paragraph 16) 3 of 6NYSCEF DOC. NO. 198 Regarding the complications which resulted, it is my opinion to a reasonable degree of medical certainty that they were appropriately managed by the private attending. Dr. Pafos, and the supervised resident, immediately performed a uterine repair and contacted a urologist to repair the bladder. A Foley catheter was placed, along with JP drains, all of which were monitored by urology up until the patient was discharged. There were no pertinent urological findings suggesting that the Foley was improperly placed or that there were any complications with the catheter. Further, the patient was instructed to follow up with the urologist and with her private OB/GY N physician for scar inspection and postpartum visits. A CT performed on A pril 25, 2016 revealed an intact bladder repair. Consequently, on the same day, urologist, Dr. Rofeim, discontinued the Foley catheter. While the patient testified that she has had bladder leakage and other urological symptoms since, she has not sought treatment from a urologist in more than four years, nor is there any testing or assessment of the bladder or evaluation of her symptoms by any urologist or physician. (Exhibit A-paragraph 11) 5. With respect to plaintiff’s specific claims of failure to obtain informed consent before performing a cesarean section, Dr.. Lupin has affirmed as follows: As to the cause of the uterine rupture, it is my opinion that the mechanism of the rupture cannot be precisely identified. Dr. Pafos testified that he encountered it intraoperatively and that the bladder was also stuck to the anterior uterus. My review of the copious charting by the nurses and the physicians reveal no earlier indications of a uterine rupture. Nevertheless, a uterine rupture and injury to organs in the abdomen and pelvic area are known risks of a TOLAC. Dr. Nanda testified that, by custom and practice, he would have reviewed with the patient the risks associated with a TOLAC. Specifically, he would have discussed the 4 of 6 INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022INDEX NO. 717964/2018 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 08/06/2022 likelihood of a rupture of the uterus, which would be less than 1% of the time and a 2 % percent chance of scar separation. Additionally, before performing the cesarean section, Dr. Pafos, documented in his attending note that he discussed with the patient the risk of injury to the organs and uterus. Moreover, this was an emergency situation. The baby’s life was at risk, and no reasonable patient in the patient’s position would have refused a cesarean section. (Exhibit A-paragraph 10) I find that the emergency cesarean section was indicated at the time the decision was made by Dr. Pafos due to unresolved recurrent fetal heart decelerations. The patient had an informed consent discussion with her private physician, Dr. Pafos, and, notwithstanding same, the hospital had no role with regard to consenting a private patient for an emergency surgery by her private physician. (Exhibit A-paragraph 7) The incontrovertible evidence herein is that the patient was under the management of her private board-certified and board-eligible obstetricians and gynecologists, Dr. Nanda and Dr. Pafos. Both private attendings managed her obstetrical and gynecological care prior, during and subsequent to the delivery admission. Dr. Nanda determined in his judgment that a trial of labor after cesarean was appropriate and Dr. Pafos timely and appropriately determined in his judgment that an emergency cesarean section was indicated in light of unresolved, recurrent fetal heart rate decelerations. (Exhibit A-paragraph 6). WHEREFORE, the undersigned respectfully submits that the motion of defendant, Emmanuel M. Pafos MD, for summary judgment pursuant to CPLR 3212 should be granted, dismissing plaintiffs’ complaint. Respectfully Submitted, Gucthorag Kertthobis Anthony Xanthakis 5 of 6INDEX NO. 717964/2018 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 08/06/2022 I, Anthony X anthakis Esq., certify that the Affirmation in Support and Supplemental Affirmation in Support complies with the word count and page count limits as set forth in the Uniform Civil Rules for the Supreme Court Rule 202.8-b. The Supplemental A ffirmation in Support contains 1416 and combined with the word count in the A ffirmation in Support totals 5688 words. Gucthorag Kertthobis Anthony Xanthakis 6 of 6(FILED: QUEENS COUNTY CLERK 02/08/2022 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 198 RECEIVED NYSCEF: 02/08/2022 EXHIBIT ANYSCEF DOC. NO. 188 SUPREME COURT OF THE STA COUNTY OF QUEENS INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022 TE OF NEW YORK THERESA ROBINSON and DEREK ROBINSON, -against- NORTHWELL HEALTH, INC., LON MEDICAL CENTER, DEEPAK NAN NANDA, M.D. and EMMANUEL PA Index No.: 717964/2018 Plaintiff, EXPERT AFFIRMATION G ISLAND J EWISH DA, M.D., P.C., DEEPAK FOS, M.D., Defendant. J AY STEPHEN LUPIN, M.D., a physician duly licensed to practice medicine in the State of New York, hereby affirms and states the following under the penalties of perjury: 1. | ama physician licensed am Board Certified in the field of Obs to practice medicine in New York State and | etrics & Gynecology. | obtained my medical degree from Tulane University School of Medicine in New Orleans, Louisiana. Following my graduation from medi ical school in 1978, | completed my internship and subsequent residency in Obste' Medicine. | maintain an active pra trics & Gynecology at Albert Einstein School of ctice wherein | see and treat obstetrical and gynecological patients, prenatally, during labor, as well as during and after vaginal deliveries or cesarean sections. As such, | am fully familiar with the standards of accepted medical care relating to the issues raised in this matter. 2. This Expert Affirmation is submitted in support of the motion for summary judgment on behalf of defendants, NORTHWELL HEALTH, INC. and LONGy INDEX NO. 717964/2018 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/06/2022 ISLAND J EWISH MEDICAL CENTER. The bases for my opinions, all of which are to a reasonable degree of medical certainty, are my knowledge and experience in the field of Obstetrics & Gynecology, as well as my review of the pleadings, verified bill of particulars, deposition testimony, and pertinent medical records including the records of DEEPAK NANDA M.LD., P.C., LONG ISLAND J EWISH MEDICAL CENTER (“LJ MC”) and OMID ROFEIM, M.D. ALLEGATIONS 3. My review of plaintiffs Bill of Particulars revealed the following allegations against Northwell Health, Inc. and LIJ MC: that during the April 12, 2016 delivery admission at Ll) MC, the defendants departed from good and accepted medical practice in failing to timely perform a C-section, delaying the C-section; negligently attempting vaginal delivery despite her past obstetric and gynecological history; failed to anticipate her abdominal adhesions in light of her past gynecological and obstetrical history; and failed to advise her of the material risks, benefits and alternatives to the vaginal delivery and C-section; and failed to properly document events which occurred in the operating room. 4. Itis claimed that, prior to the Cesarean section, the defendants failed to properly monitor the plaintiff, identify and report abnormal findings in the labor and deliver unit, including timely and properly reporting episodes of late decelerations and other abnormal fetal heart rhythms observed from the fetal heart monitor. Plaintiff claims that the defendants failed to timely implement nursing interventions in response to the episodes of late decelerations and other abnormal fetal heartNYSCEF DOC. NO. 188 rhythms. Plaintiff claims that the defendants failed to timely diagnose and prevent her uterine rupture; and negligently caused her bladder injury. Plaintiff also claims defendants negligently inserted a Foley catheter, and that the hospital failed to supervise the nurses or hire and retain qualified medical providers. 5. Further, plaintiff claims that defendants failed to have in effect or follow its Policies and Procedures in the labor and delivery unit related to communications between nurses and physicians, monitoring of patients, staffing of the unit, insertion of Foley catether, reporting of abnormal findings and the taking of medical, gynecological and obstetrical history. OPINION 6. Itis my opinion to a reasonable degree of medical certainty that the care provided by the hospital and its staff in connection with the patient's April 12, 2016 delivery admission was at all times within the standard of care without any deviation. Any claim by the patient that LI) MC failed to properly or timely diagnose, manage and/or treat plaintiff, is fully negated by the patient's medical records and the testimony adduced herein. The incontrovertible evidence herein is that the patient was under the management of her private board-certified and board-eligible obstetricians and gynecologists, Dr. Nanda and Dr. Pafos. Both private attendings managed her obstetrical and gynecological care prior, during and subsequent to the delivery admission. Dr. Nanda determined in his judgment that a trial of labor after cesarean was appropriate and Dr. Pafos timely and appropriately determined in his judgment that an emergency cesarean section was INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022NYSCEF DOC. NO. 188 indicated in light of unresolved, recurrent fetal heart rate decelerations. 7. | find no support for plaintiff's claim that the hospital improperly recommended a trial of labor, improperly performed the April 13, 2016 cesarean section or improperly managed the plaintiff's labor and delivery, as all of the foregoing were under the management and supervision of her private OB/GYN, Dr. Nanda and Dr. Pafos. | find that the emergency cesarean section was indicated at the time the decision was made by Dr. Pafos due to unresolved recurrent fetal heart decelerations. The patient had an informed consent discussion with her private physician, Dr. Pafos, and, notwithstanding same, the hospital had no role with regard to consenting a private patient for an emergency surgery by her private physician. 8. The hospital provided continuous nursing care, live fetal monitoring and repeated nursing assessments, all of which are documented in the records. There is no support for plaintiff's claim that the patient was not monitored or that the nurses failed to heed any abnormal findings or fetal heart rhythms. In fact, the record and the testimony is replete with references to timely interventions which were taken in response to late, prolonged or recurrent decelerations, as well as pain and pressure, among other things. This included repositioning the patient, administering oxygen and IV fluids, and seeking the assistance of physicians where the late or prolonged decelerations did not resolve with the interventions. Pitocin was also administered and adjusted in accordance with physician’s orders. All three nurses who participated in this labor and delivery testified that this was the policy and procedure of the hospital as it relates to fetal monitoring, negating INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022NYSCEF DOC. NO. 188 the plaintiff's claim of the absence of policies and procedures or the failure to adhere to them. Plaintiff's contention or suggestion that physicians be notified of every single deceleration, is not only impractical, but is not required by the standard of care. The standard of care requires physician interventions where standard nursing interventions do not resolve the decelerations. Moreover, the attendings themselves testified to continuously watching the fetal monitor tracings displayed throughout the hospital and to frequently evaluating the plaintiff and baby. Consequently, the record does not support any failure on the part of the hospital to inform the attendings of significant abnormal findings or the progress of labor. 9. With regard to the timing of the cesarean section, the timing of the cesarean section was appropriately determined by the patient's private attending managing her care, and not the hospital staff. The patient was under the care of her private attendings at all times during her labor and delivery. 10.As to the cause of the uterine rupture, it is my opinion that the mechanism of the rupture cannot be precisely identified. Dr. Pafos testified that he encountered it intraoperatively and that the bladder was also stuck to the anterior uterus. My review of the copious charting by the nurses and the physicians reveal no earlier indications of a uterine rupture. Nevertheless, a uterine rupture and injury to organs in the abdomen and pelvic area are known risks of a TOLAC. Dr. Nanda testified that, by custom and practice, he would have reviewed with the patient the risks associated with a TOLAC. Specifically, he would have discussed the INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022y INDEX NO. 717964/2018 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/06/2022 likelihood of a rupture of the uterus, which would be less than 1% of the time and a 2 % percent chance of scar separation. Additionally, before performing the cesarian section, Dr. Pafos, documented in his attending note that he discussed with the patient the risk of injury to the organs and uterus. Moreover, this was an emergency situation. The baby’s life was at risk, and no reasonable patient in the patient's position would have refused a cesarean section. 11.Regarding the complications which resulted, itis my opinion to a reasonable degree of medical certainty that they were appropriately managed by the private attending. Dr. Pafos, and the supervised resident, immediately performed a uterine repair and contacted a urologist to repair the bladder. A Foley catheter was placed, along with J P drains, all of which were monitored by urology up until the patient was discharged. There were no pertinent urological findings suggesting that the Foley was improperly placed or that there were any complications with the catheter. Further, the patient was instructed to follow up with the urologist and with her private OB/GYN physician for scar inspection and postpartum visits. A CT performed on April 25, 2016 revealed an intact bladder repair. Consequently, on the same day, urologist, Dr. Rofeim, discontinued the Foley catheter. While the patient testified that she has had bladder leakage and other urological symptoms since, she has not sought treatment from a urologist in more than four years, nor is there any testing or assessment of the bladder or evaluation of her symptoms by any urologist or physician. 12.The patient never returned to LI) MC for any treatment with respect to theNYSCEF DOC. NO. 188 delivery admission or complications, or to see Dr. Rofeim after the April 25, 2016 visit. Plaintiff also never reported any complaints to the hospital or to Dr. Rofeim subsequently. She also never returned to either medical provider regarding her repaired uterus or bladder. Consequently, there is no continuous treatment by LI) MC or its staff relating to the care at issue. Specific Departures 13.With respect to plaintiffs allegation that the movants failed to have policies and procedures in place in the labor and delivery unit, this is negated by the testimony of the providers herein. First, | note that a large number of the policies and procedures plaintiff claims do not exist, were not covered in the testimony | reviewed or ever explored to substantiate this claim; for example, there was no inquiry as to staffing of the labor and delivery unit or insertion of Foley catheters. It is also unclear what is meant by “access to patient's medical records.” Second, itis also unclear if plaintiff is referring to policies and procedures governing nursing or the private attending’s care, especially as it relates to cesarean sections; cesarean sections, in particular, are completely outside the scope of nursing care. Nurses do not perform cesarean sections and do not decide if or whether one should be performed. As a practicing OB/GYN physician for over 40 years, | can state with a reasonable degree of medical certainty that the performance of cesarean sections are solely within the scope, judgment and practice of the patient's private attendings, not the nurses who were monitoring the patient. Third, all four nurses testified to existing policies and procedures and how they adhered INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022NYSCEF DOC. NO. 188 to same. Specifically, the labor and delivery nurses all testified to nursing interventions and communications with physicians with regard to significant findings during labor, including unresolved late, prolonged and recurrent fetal heart decelerations observed on fetal monitoring strips. They testified to policies with regard to documenting in the chart and monitoring labor and delivery patients. NP Brodsky specifically testified to the procedure for admitting patients, obtaining an obstetrical history, reviewing the patient's existing prenatal records, and reviewing the plan of care with the patient's private attending and obtaining approval of the plan from the attending. 14. Regarding the caliber of the hospital personnel who provided care to this patient, the testimony confirms that they were highly credentialed and experienced. They all possessed the requisite education, training and experience as reflected in their testimony and Curricula Vitae. The plaintiff's private physician Dr. Nanda has been practicing over forty (40) years, is board certified in Obstetrics & Gynecology, is a subspecialist in Maternal Fetal Medicine, has taught multiple residents as a clinical assistant professor and is the principal of an Obstetrics & Gynecology practice. Plaintiff's other private attending, Dr. Pafos, graduated from medical school in 2011, completed his four-year OB/GYN residency, has performed over 500 cesarean sections and is board eligible with full surgical privileges at LI) MC. Parenthetically, | note that it was not a departure from the standard of care by the hospital to allow a board-eligible, experienced physician to perform a cesarean section. All the nurses were licensed to practice and were experienced in labor and delivery, or, in the case of Nurse Siegel, was being closely supervised and INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022y INDEX NO. 717964/2018 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/06/2022 followed by a preceptor while she provided care to the patient. The residents were also supervised by the attendings, as expected at a teaching hospital such as LI) MC. Consequently, there is no merit to these allegations that any of the medical providers were negligently hired, granted hospital privileges or that they were inexperienced. 15.With regard to plaintiff's allegation that the movants failed to report, identify or observe late decelerations or abnormal fetal heart rhythms, these claims are inconsistent with the records and testimony. The nurses regularly documented all abnormal heart rhythms and recorded the interventions they made with respect to the decelerations. They testified to repositioning the patient, administering supplemental oxygen and increasing IV fluids to resolve late, prolonged and recurrent decelerations. Where the decelerations did not resolve, they notified the private attendings. The attendings themselves also confirmed that they were continuously watching the fetal monitors and evaluating the patient frequently. Dr. Nanda testified that he was at the bedside “many times” and that, each time, he or his resident would review the tracings, review the progress of labor and discuss this with the patient. He further testified that he would review late decelerations to see if there were “significant late deceleration or just significant, which [they] see in practically every patient [sic] labor.” Consequently, any claim of failure to notify the physicians of abnormal findings is fully negated. Moreover, it is my opinion to a reasonable degree of medical certainty that, given that there was no injury to the baby, it is unclear what, if anything, the notification, or lack of notification ofy INDEX NO. 717964/2018 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/06/2022 abnormal heart rhythms, has on the injuries the patient is claiming in this case. While the fetal tracings gave the OB/GYN the indications for the emergency cesarean section, the bladder injury and uterine rupture sustained were not caused by the baby’s heart rhythms. There is no relationship between the heart rhythms and the outcome of the cesarean section. 16.Regarding the allegations that LI) MC failed to timely perform a cesarean section, negligently attempted to perform a vaginal delivery despite her previous cesarean section, failed to anticipate adhesions from her past obstetrical history, delayed the cesarean section or failed to advise her of the material risks and benefits and alternatives to vaginal delivery and cesarean section, the hospital had no responsibility with regard to any of the foregoing as the patient was at all times under the management of her experienced private attendings. Each attending confirmed that they provided prenatal care to the patient, monitored her pregnancy through ultrasounds and office visits, and that they were well aware of the patient's history of a cesarean section. In fact, Dr. Nanda delivered the patient's first child via cesarean section due to a non-reassuring fetal heart rate. The testimony of the private attendings further confirm that this was their private patient, admitted to their care, and that they made the judgments with respect to the manner of delivery. The patient expressed her desire to proceed with a TOLAC and consent was obtained and documented. Additionally, Dr. Nanda testified that there was no indication to offer a cesarean section while he provided the care for the patient, and Dr. Pafos, who assumed care after him, confirmed that it was his decision to perform a cesarean section at the time he did. With regard to the adhesions, iny INDEX NO. 717964/2018 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/06/2022 particular, | agree with Dr. Pafos that the degree and extent of same cannot be predicted with any certainty. Adhesions, which are bans of scar tissue, can cause internal organs, such as the uterus and bladder to be stuck together. It is therefore my opinion to a reasonable degree of medical certainty that neither the hospital, nor its staff, departed from the standard of care with respect to the cesarean section, including its timing, performance or outcome. 17.With regard to the diagnoses of the bladder injury and uterine rupture, there were no departures from the standard of care by the hospital with respect to same. The diagnoses were made intraoperatively by Dr. Pafos, and there were no earlier indications of these injuries. 18.With regard to the supervision of hospital staff, it is my opinion to a reasonable degree of medical certainty that the hospital staff was properly supervised during the patient's labor and delivery. Nurse Siegel testified in detail that she was supervised her entire shift by her preceptor, Nurse Melin Torres- Perez. The preceptor reviewed the patient's care with her, supervised Nurse Siegel's care, discussed significant findings, including decelerations; and reviewed everything Nurse Siegel documented. At no point did Nurse Siegel act independently, and the chart confirms they were charting simultaneously. All the nurses worked directly with the residents and attendings as reflected in the chart and testimony. In addition to nurses, the residents who provided care where also directly supervised by the private attendings. Dr. Nanda testified to his supervision of the residents and Dr. Pafos also testified to supervising the resident who performed the surgery. Dr. Pafos testified that he directed and supervised they INDEX NO. 717964/2018 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/06/2022 resident for the entire surgery. He emphasized that every single aspect of the surgery was performed under his direct supervision and he was intimately involved “in every step of the way.” Nothing was done without the attending’s knowledge, direction or supervision. The attendings and staff heeded the nurses’ advice, including with respect to fetal monitoring and complaints by the patient, and this is specifically documented in the chart. This patient was monitored continuously by both nurses and OB/GYN physicians, as reflected in the charting of the patient's labor and delivery course, including the charting of significant findings and interventions. 19. It is my opinion that, upon the patient's presentation to LIJ MC, a detailed, comprehensive and proper medical, obstetrical and gynecological history was obtained, and appropriate labor and delivery monitoring and care was employed, to include the fetal monitoring and timely nursing interventions; significant findings, timely interventions and the monitoring of the patient by her private attendings. The patient's experienced OB/GYN physicians, who were intimately familiar with her prenatal care and medical history, determined the mode of delivery, including to attempt a TOLAC, and ultimately, to perform an emergency cesarean section which was in the best interest of the patient and her baby. Ll) MC made its operating room and facilities available, fully prepped and staffed, for the patient's emergency surgery. 20.Itis further my opinion to a reasonable degree of medical certainty that neither the nurses, nor the hospital, had any role in the decision-making as to whether the patient’s cesarean section was indicated, and that neither LI) MC, norNYSCEF DOC. NO. 188 its staff, had any role in deciding the manner or timing of the delivery, including, but, not limited to whether the plaintiff should have a TOLAC ora cesarean section. My review of the records reflects that TOLAC was approved by Dr. Nanda and that the timing and decision to perform an emergency cesarean section was determined by Dr. Pafos. The patient admitted she agreed to proceed with the surgery, given that there was concern for the baby’s health. Irrespective of Ll) MC's role, or lack thereof, in deciding whether a cesarean section was appropriate, the surgery was indicated in light of the unresolved, recurrent decelerations. 21.Notwithstanding Dr. Pafos’ responsibility as the private surgeon for making all the surgical decisions, including the timing, it is my opinion to a reasonable degree of medical certainty that there were no deviations from the standard of care in connection with the performance of the cesarean section. The surgery was performed by an experienced board-eligible OB/GYN physician with significant training in labor, delivery and cesarean sections, the care at issue. | found no evidence of surgical error. Dr. Pafos’ credentials, training, board-eligibility, and having performed this surgery on multiple occasions, suggest that he was well- qualified. As the attending private physician, Dr. Pafos directed and supervised Dr. Shekarloo as a resident. Dr. Pafos exercised good and acceptable surgical judgment, including with respect to his repair of the uterus and promptly seeking and obtaining an intraoperative urology consultation for the bladder injury. 22.Dr. Pafos confirmed that he directed, instructed and supervised the chief resident, Dr. Shekarloo, during the entirety of the procedure, and that she INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022NYSCEF DOC. NO. 188 followed all his instructions. Dr. Shekarloo surgically assisted under his direct supervision and to his satisfaction, and in doing so, did not exercise any independent judgment. Dr. Pafos also confirmed that Dr. Shekarloo did not do anything which was not under his control. Moreover, the detailed operative reports support a proper exercise of surgical judgment in performing the cesarean section and repairing the bladder and uterus. 23.Additionally, | found no orders or directives by the private attendings which would warrant inquiry by LIJ MC staff into their correctness, or deviation therefrom. Moreover, there are no indications from the record as to the need for any inquiries into their directives or orders, given their years of experience and having performed many cesarean sections as testified to by same. Moreover, it would have been inappropriate and beyond the standard of care for LI) MC or its staff to formulate a different plan of care from that of the patient's specialists who were intimately familiar with this patient’s history and followed the patient prior and subsequent to the surgery at Ll) MC. 24.Not once since her hospital discharge, or since her April 25, 2016 visit with urologist, Dr. Rofeim, did the patient return to the hospital or complain to anyone at the hospital regarding the complications from her delivery. She never once reported any untoward condition or presented to the hospital for any treatment whatsoever with respect to the injuries she alleges she sustained from the delivery. There was no follow up with the hospital or any evidence that the patient had any reasonable expectation of care from the hospital or was under the management of INDEX NO. 717964/2018 RECEIVED NYSCEF: 08/06/2022y INDEX NO. 717964/2018 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 08/06/2022 up with the hospital or any evidence that the patient had any reasonable expectation of care from the hospital or was under the management of same since the aforesaid date. 25.Notwithstanding no departure by LIJMC or its staff, itis my opinion that the bladder injury and uterine rupture did not result from a departure from the standard of care by the defendant hospital or its staff. Both are complications of a TOLAC and can occur even without any departure from the standard of care. Further, my review of the detailed operative report of Dr. Pafos reflects a proper exercise of surgical judgment! 26.In conclusion, it my opinion to a reasonable degree of medical certainty that the patient was properly assessed during her delivery admission to LIJMC; that Proper and appropriate policies and protocols were carried out throughout patient's admission, including fetal monitoring and the heeding and communication of abriorrial fetal heart decelerations; that the staff were properly trained and credentialed; and that the injuries being claimed herein did not result from a departure from the standard ‘bf care by LIJMC or its staff. The injuries sustained by the patient were well-known and accepted risks of a TOLAC, and the patient consented to same. Therefore, for the reasons outlined above, | respectfully request that this Motion 1, OE for Summary judgment be granted in its entirety. Dated: New York, New York June \¢ 2021