Preview
FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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BARBARA CALLE as ADMINISTRATOR OF THE ESTATE
OF LILLIAN GOULD, deceased, Index #:
171176/11
Plaintiff,
- against -
AFFIRMATION
TOCHI IROKU-MALIZE, M.D., MARK HILLEL IN OPPOSITION
AUERBACH, M.D., STEVEN SAMUELS, M.D.,
BRIAN SCOTT BLAUSTEIN, D.O., RONALD IRA
LENEFSKY, M.D., SUFFOLK INTERNAL MEDICINE
ASSOCIATES, P.C., BERNARD JAY NASH, M.D.,
ANDREW DOUGLAS ROGOVE, M.D., LONG ISLAND
NEUROLOGY, P.C., "JOHN/JANE DOE, M.D."
(First and Last Name Being Fictitious),
SALVATORE J. PALUMBO, M.D., SALVATORE J.
PALUMBO, M.D., P.C., PATRICK JULIAN REID,
M.D., PATRICK REID PHYSICIAN SERVICES,
P.C., PATRICK REID, M.D., P.C. and
SOUTHSIDE HOSPITAL,
Defendants.
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MARY ELLEN DUFFY, an attorney duly admitted to practice law before the Courts of
the State of New York, and a member of the law firm of DUFFY & DUFFY, attorneys for
plaintiffs herein, hereby affirms the following to be true upon information and belief under the
penalties of perjury:
1. I am fully familiar with the facts, circumstances and proceedings heretofore had
herein by virtue of the file maintained in this office.
2. This affirmation is respectfully submitted in opposition to the motion for summary
judgment brought by SALVATORE J. PALUMBO, M.D., and SALVATORE J.
PALUMBO, M.D., P.C.
3. This is an action sounding in medical malpractice. Plaintiff claims that the
defendants’ negligence and carelessness in failing to timely and properly treat the plaintiff
LILLIAN GOULD resulted in her sustaining severe, permanent injuries, including paralysis.
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PRELIMINARY STATEMENT
4. This case is rife with questions of fact that require resolution by the fact finder in
this case and denial of the defendant's motion including what the standard of care, treatment and
recommendations and what the standard of care required in light thereof her neurologic status.
5. Plaintiff's position is that the patient should not have been given the options she
was given, rather she should have been clearly told that she required surgery and there was no
other option. Defendant's assert that it was appropriate to offer the patient the options
conservative treatment or the option of thinking about possibility of getting surgery.
6. Simply stated, this is a classic example of a case where there are material issues of
fact requiring denial of summary judgment. Defendant's expert points to various factors in the
records to arrive at his conclusions and opinions and plaintiff's expert points to various factors in
the record to arrive at their conclusion. Each expert is offering opposing opinions on these
issues raising significant issues of fact that require resolution by the fact finder and as such,
require denial of this motion.
7. The jury is entitled to hear from both experts and arrive at their own conclusions
as to the weight they should give each opinion and what they believe the facts are relative to the
plaintiff's neurologic status (i.e. did she have gait instability requiring surgery as opposed to
being offered the option of watch and wait or possible elective surgery)
8. Moreover, as it relates to the issue of the plaintiff choosing conservative treatment
over consideration of possible surgery and any claimed culpable conduct by the plaintiff
defendants are implying, that too is for the jury to consider. The jury is entitled to weigh in on
what they believe the patient was told and the propriety of the patient being offered conservative
management in this situation, as opposed to being told that surgery was the only option and was
required.
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9. Plaintiff opposes the instant motion by defendants as there is no basis to grant
summary judgment in light of a) factual issues that remain including whether the notations of
gait instability should be believed or disbelieved; b) the defendants’ failure to meet their burden
and c) plaintiff has submitted sufficient evidence requiring denial of said motions. While the
plaintiff incorporates herein any arguments made on the original submission of opposition in this
matter as delineated in plaintiff's exhibit "2", we point out the following points specifically.
ARGUMENT
10. It should be clear from the outset that, contrary to the characterizations by the
defense – Lillian Gould did not have a private attending Neurosurgeon in her mind. Lillian
Gould never saw Dr. Darakchiev outside of the hospital and never saw Dr. Darakchiev prior to
the occasion when she was in the Southside Hospital and he happened to be the neurosurgeon on
call. He was not “her” neurosurgeon or her “private attending” neurosurgeon. Moreover, no one
told Ms. Gould that this agreement was in place amongst the neurosurgeons, no one asked Ms.
Gould who she wanted to be her neurosurgeon and she never asked for or agreed to having one
particular doctor being designated as her neurosurgeon. As far as Ms. Gould knew, these were
hospital neurosurgeons that the hospital was providing.
11. Whatever designation the defendants have chosen to give to Dr. Darakchiev –
that designation is solely a product of how the neurosurgical group of whom Dr. Palumbo
was a member chose to run their own practice and/or part of a defense strategy. It has
nothing to do with what the patient wanted or thought and there is not one stitch of
evidence that would support a conclusion that this was the plaintiff’s private attending.
Obviously, the standard of care is not dictated by the manner in which Dr. Palumbo and his
partners, including Dr. Darackchiev privately chose to conduct their business.
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12. It must be emphasized that the attempt to portray Dr. Palumbo as – essentially a
scribe or a resident only permitted to follow Dr. Darakchiev’s “plan” – has no basis in reality. It
is simply untrue and designed to distract from the fact that Dr. Palumbo had his own
responsibility to this patient as an on call neurosurgical attending assigned to this patient.
13. Dr. Palumbo was a neurosurgeon – with all of the training and experience of a
neurosurgeon and held himself out to the world as a practicing neurosurgeon. As the covering
neurosurgeon for Southside Hospital during the time period he saw this patient, Dr. Palumbo had
a duty of care to this patient that he failed to meet. He cannot shove off his own failures by
simply claiming that he was Dr. Darakchiev’s lackey. The fact that Dr. Palumbo may have
spoken to Dr. Darakchiev and they both agreed on a plan doesn't change the fact that Dr.
Palumbo was a full-fledged neurosurgical attending, who did his own examinations and
evaluations.
14. Dr. Palumbo's notes and testimony makes it very clear that he had his own
opinions, did his own examinations, had his own discussions with the patient, did his own review
of the imaging and had expressed his own opinions to the patient that she had the option of
conservative treatment or could think about possible elective surgery.
15. It is clear, as demonstrated in Leigh v. Kyle, 143 AD3d 779 (2nd Dept, 2016), Dr.
Palumbo owed this patient a general duty of care that was limited to those medical functions
undertaken by him. In this case, Dr. Palumbo undertook evaluating and treating this patient as a
neurosurgical consult. As such, he is responsible for any negligent actions on his part in carrying
out this duty. Plaintiff’s expert clearly delineates how Dr. Palumbo failed to meet his duty in his
role as the on-call neurosurgeon for this patient on June 14 through June 17th and the proximate
cause to the plaintiff's injuries.
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16. As demonstrated in the plaintiff’s expert affidavit, there are factual disputes
between SALVATORE PALUMBO, M.D., SALVATORE PALUMBO, M.D., P.C. and the
plaintiff that require denial of summary judgment in this matter. All of the facts relied upon in
arriving at the conclusions of the plaintiff’s expert are derived directly from the records and
testimony in this matter. As this affirmation was submitted in response to multiple motions for
summary judgment, certain opinions and references contained therein will not apply to the
current motion. However, it clearly delineates the opinions as it relates to Dr. Palumbo's care and
opines specifically as to the care and treatment rendered Plaintiff adopts and incorporates the
factual statement and opinions contained within the plaintiff’s Expert Affidavit (Attached hereto
as Plaintiff’s Exhibit 11)
17. The plaintiff asserts that based on the progression of the patient’s condition - both
radiographically and clinically-as of the time Dr. Palumbo was involved in her care immediate
surgery was required and conservative treatment should not have been offered as an option by
SOUTHSIDE HOSPITAL through the actions of Dr. Palumbo and Darakchiev2. Notably, the
patient willingly accepted surgery when she was told it was required. There is not one bit of
evidence to the contrary.
18. Stated differently – it is plaintiff’s position that every one of the very factors that
defense counsel admits would require surgery were present as of the time Dr. Palumbo saw the
patient. The patient had significant destruction of the spine leaving it unsound as demonstrated
1
This affidavit has been redacted pursuant to McCarty v. Community Hospital at Glen Cove, 203 A.D. 2d
432, 433(2nd Dept. 1994) and Carrasquillo v. Rosencrans, 208 A.D.2d 488 (2nd Dept. 1994). The original
of these affirmations will be made available to the Court for an in-camera inspection.
2
The fact that Dr. Darakchiev was not sued as an individual has no bearing on the question of the propriety
of the medical care rendered by Dr. Palumbo. Dr. Darakchiev was an agent of Southside Hospital and thus
SOUTHSIDE HOSPITAL is vicariously liable for his negligent actions – whether or not Dr. Darakchiev
was named in the litigation or not.
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by CT and MRI, the infection was progressing despite antibiotic treatment and the patient had
impaired gait (which continued even with the reinstitution of prednisone). As such surgery was
required.
19. Conservative therapy was no longer a medically acceptable option for properly
treating this patient and utilizing or advising same constituted a departure from accepted medical
practice3. Furthermore, as explained by plaintiff’s expert, the concept of medical judgment is not
at play in this matter. The plaintiff’s expert clearly delineates that the radiographic findings
demonstrated significant destruction of the bony processes that required surgery; that the
patient’s condition had worsened and progressed despite antibiotic treatment requiring surgery;
and that there was neurological decline as demonstrated by the patient’s gait disturbances, which
are documented in the records also requiring surgery (note – this continued after the re-institution
of steroids in contrast to the defendant’s insinuation otherwise) Dr. Palumbo did not document
any gait exams –which is separate and distinct from motor testing and sensory testing. (Please
see Plaintiff’s Exhibit A)
20. Even if it was an acceptable option to have the patient treated conservatively with
observation and intervention with neurological deterioration, it was a departure from accepted
standards of care by Dr. Palumbo and Dr. Darakchiev to allow the patient to remain under
observation at Southside Hospital, as they were not equipped to handle the patient in an emergent
fashion in the event of neurologic decline (as clearly demonstrated by the fact that when the
patient did have further neurological deterioration she had to be transferred to another facility for
workup, evaluation and surgery)
3
Obviously, the statements by defense counsel that a claim in a BP related to care and treatment of
subsequent providers at Southside are entirely false.Plaintiff is permitted to make separate allegations
against separate parties for time periods subsequent to Dr. Palumbo’s care. Further, plaintiff is permitted to
assert alternative pleadings.Making use of these legal pleadings is not in any way akin to an admission –
tacit or otherwise.
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21. As it relates to Causation, the plaintiff’s dispute and establish that the arguments
set forth by the defense on the issues of causation are conclusory, false and unsupported by the
evidence.
22. First, assuming that the claim by the defendants asserting that the plaintiff’s
neurological condition did not change during the days that Dr. Palumbo saw her – this does not
end the inquiry. Rather, the question is did Dr. Palumbo cause and/or contribute to the plaintiff’s
injuries. It is entirely incredulous to claim that there is not a causal link between the plaintiff’s
injuries and Dr. Palumbo’s departures from accepted standard of care in negligently offering
conservative treatment and not telling the patient that she required surgery (as opposed to
offering her the choice to think about having elective surgery).
23. Had Dr. Palumbo (as well as Southside Hospital through Dr. Darakchiev)
properly told the patient she required surgery and had not improperly offer conservative
treatment, the patient would have undergone immediate surgery at an appropriate facility. The
epidural abscess would have been removed surgically, the spine stabilized prior to the time that
the patient experienced severe spinal cord compression as a result of a worsening abscess and
bone destruction, and she would have made a fully recovery.
24. The fact that the ultimate injury did not occur until days after any particular
doctor saw the patient (i.e. Dr. Palumbo), does not mean that their actions were not a substantial
contributing factor in bringing about the patient’s injuries. For example, as to Dr. Palumbo or
Southside Hospital (through the actions of Dr. Palumbo/Dr. Reid/Dr. Darakchiev) -the patient
would never have been in the situation that allowed her neurological deficits to progress to such
a significant point as to cause permanent paralysis if the defendants herein, including Dr.
Palumbo, had acted appropriately. The patient would have been sent to an appropriate facility
and surgery performed – a surgery we know she accepted when told that it was required.
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25. Instead, the patient was left in a situation where she continued to sustain
progression of her condition leading to substantial deterioration of her neurologic status, leading
to spinal cord injury and then was subjected to further delays during the time which it took to
ascertain surgery was needed, arrangements for transfers were made, transfer had to be carried
out, and the work up required to allow a surgeon to proceed had to be conducted.
26. As explained, even if one were to assume that it was appropriate to allow
conservative treatment (which plaintiff’s expert clearly states it is not) there is no question that at
a bare minimum, the patient should have been at an appropriate facility equipped with proper
staff to properly monitor the patient and act immediately if there were neurological decline.
There is no dispute about the fact that Southside Hospital was not equipped to perform the type
of surgery the patient required and as such, she should never have been placed there for
monitoring to see if she needed surgical intervention that they couldn’t provide. This is not a
situation where a patient should be permitted to be in a setting where significant decline can
occur without having the means to correct it immediately.
27. If Dr. Palumbo, amongst others, had acted in accordance with the standard of
care, the patient would already have been in a proper medical facility, she would not have been
in the situation that allowed her neurological deficits to progress to such a significant point as to
cause permanent paralysis. The patient would have been sent to an appropriate facility where a
workup and surgery could be undertaken far sooner than it was. There is only a limited amount
of time during which surgical intervention can reverse spinal cord damage. By the time the
patient arrived at NSUH Manhasset – the patient had already been subjected to spinal cord
compression resulting in sensory loss, loss of motor function and bowel function for such a
substantial period of time that the chances of surgery being successful were diminished. The
delays occasioned by the failure to have the patient transferred to an appropriate facility well
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before the further neurological deterioration recorded as beginning no later than June 26 resulted
in a substantial loss of chance for this patient to make a full recovery, as surgery could have been
performed much sooner than it was.
28. The issue of proximate cause is one that is very fact specific. Additionally, the
law is clear that there may be more than one cause of an injury. Please see PJI 2:70, Proximate
Cause - In General. Additionally, “where the independent and negligent acts or omissions of
two or more parties cause injury to another, each of those negligent acts or omissions is regarded
as a cause of that injury provided that it was a substantial factor in bringing about that injury.”
Please see PJI, 2:71, Proximate Cause - Concurrent Causes.
29. None of the cases cited by the defendants supports the conclusory insinuations
that Dr. Palumbo is not properly liable because of the fact that Dr. Darakchiev, or any other
provider, was involved in the patient’s care. These doctors can not be held responsible for the
departures of Dr. Palumbo, just as Dr. Palumbo can not be held liable for their actions.
30. CPLR §3212(b) makes it crystal clear that a motion for summary judgment “shall
be denied if any party shall show facts sufficient to require a trial of any issue of fact.” The law
is further clear that in deciding a motion for summary judgment, the evidence must be
scrutinized in the light most favorable to the party opposing summary judgment. Ptasnik v.
Schultz, 223 A.D.2d 695 (2nd Dept. 1996); Ampolini v. Long Island Lighting Co., 186 A.D.2d
772 (2nd Dept. 1992); Forte v. Franklin Gen. Hosp. 185 A.D.2d 914 (2nd Dept. 1992; Quadrozzi
v. Norcem, Inc., 125 A.D.2d 559 (2nd Dept. 1986); Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366
(2nd Dept. 1985).
31. As the Appellate Division, Second Department, explained in Jastrzebski v. North
Shore School District, 223 A.D. 2d 677, 678 (2nd Dept. 1996):
It is well established that on a motion for judgment as a matter of law, the court is not to
engage in the weighing of evidence; rather the court’s function is to determine whether
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“by no rational process could the trier of facts find for the nonmoving party” (Dolitsky
v Bay Isle Oil Co. , 111 AD2d 366; see also, Westchester Joint Water Works v City of
Yonkers , 155 AD2d 536; Dooley v Skodnek , 138 AD2d 102). It is equally well
established that the evidence must be viewed in the light most favorable to the
nonmoving party and that the motion should not be granted where the facts are in
dispute, where conflicting inference may be drawn from the evidence, or where there
are issues of credibility (see, Dolitsky v Bay Isle Oil Co. , supra ; see also, Ampolini v
Long Island Lighting Co. , 186 AD2d 772; Quadrozzi v Norcem, Inc. , 125 AD2d 559).
32. Likewise, in Frutarom v. Flavormatic Industries, 237 A.D.2d 487 (2nd Dept.,
1997), the Second Department explained:
It is well settled that issue finding, as opposed to issue determination, is the key to
summary judgment...and the papers will be scrutinized carefully in a light most favorable
to the party opposing the motion...
(Citations omitted).
33. The submission of any evidence from which a reasonable person could conclude
that the defendants departed or deviated from the accepted standards of care, and that said
departure or deviation proximately caused the alleged injuries, establishes a prima facie case of
medical malpractice. Alberti v. St. John’s Episcopal Hospital, 116 A.D.2d 612, 497 N.Y.S.2d
701 (2d Dep’t 1986).
34. Furthermore, a plaintiff who is opposing a summary judgment motion in a
medical malpractice action solely needs to demonstrate that a defendant’s negligence was a
substantial contributing factor to the injury. The plaintiff may satisfy this burden by presenting
evidence from which a reasonable person could infer that the negligence proximately caused the
alleged injury. Hughes, supra; Koster v. Greenberg, 120 A.D.2d 644, 502 N.Y.S.2d 395 (2d
Dep’t 1986).
35. When the plaintiff in a medical malpractice action submits the affirmation of a
medical expert in opposition to a summary judgment motion by a defendant which sets forth
specific departures based upon a review of the pertinent medical records and deposition
testimony and attests that such departures were a proximate cause of the alleged injuries, the
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court is precluded from granting judgment as a matter of law. Cervkvenik v. County of
Westchester, 200 A.D.2d 703, 607 N.Y.S.2d 66 (2d Dep’t 1994); Banks v. Barkoukis, 182
A.D.2d 603, 582 N.Y.S.2d 215 (2d Dep’t 1992). Furthermore, the submission of conflicting
medical opinions by the parties necessarily presents a genuine issue of fact which requires the
denial of the summary judgment motion. Viti v. Franklin General Hospital, 190 A.D.2d 790, 593
N.Y.S.2d 840 (2d Dep’t 1993).
36. Even the color of a triable issue of fact forecloses the remedy of summary
judgment. Benincasa v. Garrubbo, 141 A.D.2d 636 (2nd Dept. 1988). See also Cardenas v.
Curtain, 230 A.D. 2d 702 (2nd Dept. 1996); McKenica v. City of Tonawanda, 239 A.D. 2d 951
(4th Dept.1997); Felice v. Gershkon, 34 A.D. 2d 1008 (2nd Dept. 1970). Thus, in determining a
motion for summary judgment, it is the court’s role to search the record in an effort to discern
whether triable issues of fact exist.
THE DEFENDANTS HAVE FAILED
TO ESTABLISH ENTITLEMENT TO
JUDGMENT AS A MATTER OF LAW
37. In the instant case, the defendants have failed to make a prima facie showing of
entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form
which eliminates any material issues of fact from the case. Zuckerman, supra; Winegrad, supra.
38. Neither the affidavit by the defendant’s expert nor the affirmation by defense
counsel are sufficient to establish the absence of material, triable issues of fact. The bare,
conclusory assertions of the defendant’s expert that the defendants did not deviate or depart from
good and accepted practice, without consideration of all of the relevant facts and the appropriate
standard of care in issue are insufficient to make a prima facie showing of entitlement to
judgment as a matter of law. Winegrad v. New York University Medical Center, 64 N.Y. 2d
851, 853 (1985). Therefore, such assertions must be rejected by this court.
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39. Given the foregoing, the defendants’ motion must be denied in accordance with
the clear, well-established legal principles governing summary judgment motions, as discussed
above. In order to establish that a cause of action has no merit so as to entitle the movant to
summary judgment, an expert affidavit must do more than simply state, in a conclusory fashion
that the moving defendants acted in conformity with the appropriate standard of care. Machac v.
Anderson, 261 A.D. 2d 811 (3rd Dept. 1999). Bare, conclusory assertions that these defendants
did not deviate from good and accepted practices which do not address all of the facts relevant to
the care in question do not establish that a cause of action has no merit so as to entitle the movant
to summary judgment. Machac, supra, at 811; see also Fredericks v. North General Hospital,
2001 N.Y. App. Div.LEXIS 12271 (1st Dept. 2001). The movant has clearly failed to make a
prima facie showing of entitlement to summary judgment, which requires denial of the motion,
irrespective of the sufficiency of the opposing papers. Zuckerman, supra; Winegrad, supra;
Yelin v. American Dental Center, 184 A.D.2d 693 (2d Dep’t 1992)
PLAINTIFFS HAVE ESTABLISHED THE REQUISITE
ELEMENTS OF THEIR CAUSE OF ACTION
40. In opposition to defendants’ motions, the plaintiff submits the affidavit of a board
certified physician which causally connects the defendant’s actions to the injuries suffered by
plaintiff. (Please see Plaintiff’s Exhibits “1”) These opinions, derived from medical records and
testimony, clearly raise sufficient questions of fact to defeat the defendants’ summary judgment
motions.
41. Assuming, arguendo, that the Court finds the defendants have satisfied the
requisite burden for establishing that there is nothing related to the defendants’ actions that can
be causally related to the injuries sustained by this individual, this application should still be
denied as material issues of fact exist. The submissions by plaintiff to this motion undoubtedly
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raises questions of fact as to the causation issues herein that require resolution by a jury. Alberti
v. St. John’s Episcopal Hospital, 116 A.D.2d 612, 497 N.Y.S.2d 701 (2d Dep’t 1986).
42. As can be gleaned from the attached affidavit of plaintiff’s expert, evidentiary
facts exist which clearly rebut any showing which could possibly be said to have been
established that there is no possible way that their actions were causally related to this plaintiff’s
injuries and demonstrate the existence of triable issues of fact. Kramer v. Rosenthal, 24 A.D.2d
392, 637 N.Y.S.2d 772 (2d Dep’t 1996); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508
N.Y.S.2d 923 (1986).
43. Plaintiff’s expert affirmations establish issues of fact warranting resolution by a
jury. Consequently, the instant motions must be denied. Toledo v. Ordway, 208 A.D.2d 518, 616
N.Y.S.2d 1006 (2nd Dep’t 1994).
44. Assuming the facts in the light most favorable to the plaintiff’s for the purposes of
this motion, Dr. Palumbo departed from accepted standards of care by offering the patient
conservative treatment as an option when it was not a medically appropriate option. Viewing the
facts in the light most favorable to the plaintiff, the patient’s condition was such that she required
surgery and should not, pursuant to accepted standards of care, have been offered the option of
conservative treatment or that she could consider possible elective surgery. Moreover, in viewing
the evidence in the light most favorable to the plaintiff, even if it was appropriate to offer
conservative management, the patient should have been transferred to a facility that could
provide immediate surgery in the event she declined.
45. Additionally, plaintiff has provided ample evidence, including the affirmations of
a qualified expert physicians that establishes prima facie evidence in this action that contradicts
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any showing by the defednants1 thereby demonstrating the existence of triable issues of fact that
require denial of the defendants’ motion. (Please see plaintiff’s Exhibit 1)
46. Based on the actual evidence in the case, plaintiff’s experts clearly establishes that
at a minimum – there are questions of fact that require resolution by a jury and as such, the
defendants’ motions must be denied.
CONCLUSION
47. The defendant has failed to satisfy their burden. Consequently, their applications
should be denied. Moreover, the documentary evidence and the affidavit of the plaintiff’s expert
establish issues that require determination by a jury. Thus, the instant motions should be denied
in their entirety.
WHEREFORE, the plaintiffs respectfully request that this Honorable Court deny the
relief requested in the instant application in all respects.
Dated: Uniondale, New York
April 25, 2022
______________________________
MARY ELLEN DUFFY, ESQ.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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BARBARA CALLE as ADMINISTRATOR OF THE
ESTATE OF LILLIAN GOULD, deceased
Plaintiff(s),
-against-
TOCHI IROKU-MALIZE, M.D., MARK HILLEL Index No.: 017176/11
AUERBACH, M.D., STEVEN SAMUELS, M.D., BRIAN
SCOTT BLAUSTEIN, D.O., RONALD IRA LENEFSKY,
M.D., SUFFOLK INTERNAL MEDICINE ASSOCIATES, RULE 202.8-b
P.C., BERNARD JAY NASH, M.D., ANDREW CERTIFICATION
DOUGLAS ROGOVE, M.D., LONG ISLAND
NEUROLOGY, P.C., “JOHN/JANE DOE, M.D.” (First and
Last Name Being Fictitious), SALVATORE J. PALUMBO,
M.D., SALVATORE J. PALUMBO, M.D., P.C., PATRICK
JULIAN REID, M.D., PATRICK REID PHYSICIAN
SERVICES, P.C., PATRICK REID, M.D., P.C. and
SOUTHSIDE HOSPITAL,
Defendant(s).
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I, Mary Ellen Duffy, Esq., an attorney duly admitted to practice in the Courts of New
York State, affirms the following in accordance with CPLR §2106:
I am associated with the law firm of Duffy & Duffy, PLLC.
Word Count. The total number of words in this Affirmation in Opposition, inclusive of
point headings and footnotes and exclusive of the caption, pages containing the table of contents, table
of authorities, signature block, proof of service or certificate of compliance, is 4293.
I certify that the aforesaid document was prepared on a computer using Microsoft Word
and is submitted in compliance with the word count limit as specified in Uniform Civil Rule 202.8-b.
Dated: Uniondale, NY
April 25, 2022
__________________________________
Mary Ellen Duffy, Esq.
15 of 15
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FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------------------X BARBARA CALLE as ADMINISTRATOR OF THE ESTATE OF LILLIAN GOULD, deceased, Index #: 171176/11 Plaintiff, - against - AFFIRMATION TOCHI IROKU-MALIZE, M.D., MARK HILLEL IN OPPOSITION AUERBACH, M.D., STEVEN SAMUELS, M.D., BRIAN SCOTT BLAUSTEIN, D.O., RONALD IRA LENEFSKY, M.D., SUFFOLK INTERNAL MEDICINE ASSOCIATES, P.C., BERNARD JAY NASH, M.D., ANDREW DOUGLAS ROGOVE, M.D., LONG ISLAND NEUROLOGY, P.C., "JOHN/JANE DOE, M.D." (First and Last Name Being Fictitious), SALVATORE J. PALUMBO, M.D., SALVATORE J. PALUMBO, M.D., P.C., PATRICK JULIAN REID, M.D., PATRICK REID PHYSICIAN SERVICES, P.C., PATRICK REID, M.D., P.C. and SOUTHSIDE HOSPITAL, Defendants. -----------------------------------------------------------------------------X MARY ELLEN DUFFY, an attorney duly admitted to practice law before the Courts of the State of New York, and a member of the law firm of DUFFY & DUFFY, attorneys for plaintiffs herein, hereby affirms the following to be true upon information and belief under the penalties of perjury: 1. I am fully familiar with the facts, circumstances and proceedings heretofore had herein by virtue of the file maintained in this office. 2. This affirmation is respectfully submitted in opposition to the motion for summary judgment brought by SALVATORE J. PALUMBO, M.D., and SALVATORE J. PALUMBO, M.D., P.C. 3. This is an action sounding in medical malpractice. Plaintiff claims that the defendants’ negligence and carelessness in failing to timely and properly treat the plaintiff LILLIAN GOULD resulted in her sustaining severe, permanent injuries, including paralysis. 1 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 PRELIMINARY STATEMENT 4. This case is rife with questions of fact that require resolution by the fact finder in this case and denial of the defendant's motion including what the standard of care, treatment and recommendations and what the standard of care required in light thereof her neurologic status. 5. Plaintiff's position is that the patient should not have been given the options she was given, rather she should have been clearly told that she required surgery and there was no other option. Defendant's assert that it was appropriate to offer the patient the options conservative treatment or the option of thinking about possibility of getting surgery. 6. Simply stated, this is a classic example of a case where there are material issues of fact requiring denial of summary judgment. Defendant's expert points to various factors in the records to arrive at his conclusions and opinions and plaintiff's expert points to various factors in the record to arrive at their conclusion. Each expert is offering opposing opinions on these issues raising significant issues of fact that require resolution by the fact finder and as such, require denial of this motion. 7. The jury is entitled to hear from both experts and arrive at their own conclusions as to the weight they should give each opinion and what they believe the facts are relative to the plaintiff's neurologic status (i.e. did she have gait instability requiring surgery as opposed to being offered the option of watch and wait or possible elective surgery) 8. Moreover, as it relates to the issue of the plaintiff choosing conservative treatment over consideration of possible surgery and any claimed culpable conduct by the plaintiff defendants are implying, that too is for the jury to consider. The jury is entitled to weigh in on what they believe the patient was told and the propriety of the patient being offered conservative management in this situation, as opposed to being told that surgery was the only option and was required. 2 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 9. Plaintiff opposes the instant motion by defendants as there is no basis to grant summary judgment in light of a) factual issues that remain including whether the notations of gait instability should be believed or disbelieved; b) the defendants’ failure to meet their burden and c) plaintiff has submitted sufficient evidence requiring denial of said motions. While the plaintiff incorporates herein any arguments made on the original submission of opposition in this matter as delineated in plaintiff's exhibit "2", we point out the following points specifically. ARGUMENT 10. It should be clear from the outset that, contrary to the characterizations by the defense – Lillian Gould did not have a private attending Neurosurgeon in her mind. Lillian Gould never saw Dr. Darakchiev outside of the hospital and never saw Dr. Darakchiev prior to the occasion when she was in the Southside Hospital and he happened to be the neurosurgeon on call. He was not “her” neurosurgeon or her “private attending” neurosurgeon. Moreover, no one told Ms. Gould that this agreement was in place amongst the neurosurgeons, no one asked Ms. Gould who she wanted to be her neurosurgeon and she never asked for or agreed to having one particular doctor being designated as her neurosurgeon. As far as Ms. Gould knew, these were hospital neurosurgeons that the hospital was providing. 11. Whatever designation the defendants have chosen to give to Dr. Darakchiev – that designation is solely a product of how the neurosurgical group of whom Dr. Palumbo was a member chose to run their own practice and/or part of a defense strategy. It has nothing to do with what the patient wanted or thought and there is not one stitch of evidence that would support a conclusion that this was the plaintiff’s private attending. Obviously, the standard of care is not dictated by the manner in which Dr. Palumbo and his partners, including Dr. Darackchiev privately chose to conduct their business. 3 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 12. It must be emphasized that the attempt to portray Dr. Palumbo as – essentially a scribe or a resident only permitted to follow Dr. Darakchiev’s “plan” – has no basis in reality. It is simply untrue and designed to distract from the fact that Dr. Palumbo had his own responsibility to this patient as an on call neurosurgical attending assigned to this patient. 13. Dr. Palumbo was a neurosurgeon – with all of the training and experience of a neurosurgeon and held himself out to the world as a practicing neurosurgeon. As the covering neurosurgeon for Southside Hospital during the time period he saw this patient, Dr. Palumbo had a duty of care to this patient that he failed to meet. He cannot shove off his own failures by simply claiming that he was Dr. Darakchiev’s lackey. The fact that Dr. Palumbo may have spoken to Dr. Darakchiev and they both agreed on a plan doesn't change the fact that Dr. Palumbo was a full-fledged neurosurgical attending, who did his own examinations and evaluations. 14. Dr. Palumbo's notes and testimony makes it very clear that he had his own opinions, did his own examinations, had his own discussions with the patient, did his own review of the imaging and had expressed his own opinions to the patient that she had the option of conservative treatment or could think about possible elective surgery. 15. It is clear, as demonstrated in Leigh v. Kyle, 143 AD3d 779 (2nd Dept, 2016), Dr. Palumbo owed this patient a general duty of care that was limited to those medical functions undertaken by him. In this case, Dr. Palumbo undertook evaluating and treating this patient as a neurosurgical consult. As such, he is responsible for any negligent actions on his part in carrying out this duty. Plaintiff’s expert clearly delineates how Dr. Palumbo failed to meet his duty in his role as the on-call neurosurgeon for this patient on June 14 through June 17th and the proximate cause to the plaintiff's injuries. 4 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 16. As demonstrated in the plaintiff’s expert affidavit, there are factual disputes between SALVATORE PALUMBO, M.D., SALVATORE PALUMBO, M.D., P.C. and the plaintiff that require denial of summary judgment in this matter. All of the facts relied upon in arriving at the conclusions of the plaintiff’s expert are derived directly from the records and testimony in this matter. As this affirmation was submitted in response to multiple motions for summary judgment, certain opinions and references contained therein will not apply to the current motion. However, it clearly delineates the opinions as it relates to Dr. Palumbo's care and opines specifically as to the care and treatment rendered Plaintiff adopts and incorporates the factual statement and opinions contained within the plaintiff’s Expert Affidavit (Attached hereto as Plaintiff’s Exhibit 11) 17. The plaintiff asserts that based on the progression of the patient’s condition - both radiographically and clinically-as of the time Dr. Palumbo was involved in her care immediate surgery was required and conservative treatment should not have been offered as an option by SOUTHSIDE HOSPITAL through the actions of Dr. Palumbo and Darakchiev2. Notably, the patient willingly accepted surgery when she was told it was required. There is not one bit of evidence to the contrary. 18. Stated differently – it is plaintiff’s position that every one of the very factors that defense counsel admits would require surgery were present as of the time Dr. Palumbo saw the patient. The patient had significant destruction of the spine leaving it unsound as demonstrated 1 This affidavit has been redacted pursuant to McCarty v. Community Hospital at Glen Cove, 203 A.D. 2d 432, 433(2nd Dept. 1994) and Carrasquillo v. Rosencrans, 208 A.D.2d 488 (2nd Dept. 1994). The original of these affirmations will be made available to the Court for an in-camera inspection. 2 The fact that Dr. Darakchiev was not sued as an individual has no bearing on the question of the propriety of the medical care rendered by Dr. Palumbo. Dr. Darakchiev was an agent of Southside Hospital and thus SOUTHSIDE HOSPITAL is vicariously liable for his negligent actions – whether or not Dr. Darakchiev was named in the litigation or not. 5 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 by CT and MRI, the infection was progressing despite antibiotic treatment and the patient had impaired gait (which continued even with the reinstitution of prednisone). As such surgery was required. 19. Conservative therapy was no longer a medically acceptable option for properly treating this patient and utilizing or advising same constituted a departure from accepted medical practice3. Furthermore, as explained by plaintiff’s expert, the concept of medical judgment is not at play in this matter. The plaintiff’s expert clearly delineates that the radiographic findings demonstrated significant destruction of the bony processes that required surgery; that the patient’s condition had worsened and progressed despite antibiotic treatment requiring surgery; and that there was neurological decline as demonstrated by the patient’s gait disturbances, which are documented in the records also requiring surgery (note – this continued after the re-institution of steroids in contrast to the defendant’s insinuation otherwise) Dr. Palumbo did not document any gait exams –which is separate and distinct from motor testing and sensory testing. (Please see Plaintiff’s Exhibit A) 20. Even if it was an acceptable option to have the patient treated conservatively with observation and intervention with neurological deterioration, it was a departure from accepted standards of care by Dr. Palumbo and Dr. Darakchiev to allow the patient to remain under observation at Southside Hospital, as they were not equipped to handle the patient in an emergent fashion in the event of neurologic decline (as clearly demonstrated by the fact that when the patient did have further neurological deterioration she had to be transferred to another facility for workup, evaluation and surgery) 3 Obviously, the statements by defense counsel that a claim in a BP related to care and treatment of subsequent providers at Southside are entirely false.Plaintiff is permitted to make separate allegations against separate parties for time periods subsequent to Dr. Palumbo’s care. Further, plaintiff is permitted to assert alternative pleadings.Making use of these legal pleadings is not in any way akin to an admission – tacit or otherwise. 6 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 21. As it relates to Causation, the plaintiff’s dispute and establish that the arguments set forth by the defense on the issues of causation are conclusory, false and unsupported by the evidence. 22. First, assuming that the claim by the defendants asserting that the plaintiff’s neurological condition did not change during the days that Dr. Palumbo saw her – this does not end the inquiry. Rather, the question is did Dr. Palumbo cause and/or contribute to the plaintiff’s injuries. It is entirely incredulous to claim that there is not a causal link between the plaintiff’s injuries and Dr. Palumbo’s departures from accepted standard of care in negligently offering conservative treatment and not telling the patient that she required surgery (as opposed to offering her the choice to think about having elective surgery). 23. Had Dr. Palumbo (as well as Southside Hospital through Dr. Darakchiev) properly told the patient she required surgery and had not improperly offer conservative treatment, the patient would have undergone immediate surgery at an appropriate facility. The epidural abscess would have been removed surgically, the spine stabilized prior to the time that the patient experienced severe spinal cord compression as a result of a worsening abscess and bone destruction, and she would have made a fully recovery. 24. The fact that the ultimate injury did not occur until days after any particular doctor saw the patient (i.e. Dr. Palumbo), does not mean that their actions were not a substantial contributing factor in bringing about the patient’s injuries. For example, as to Dr. Palumbo or Southside Hospital (through the actions of Dr. Palumbo/Dr. Reid/Dr. Darakchiev) -the patient would never have been in the situation that allowed her neurological deficits to progress to such a significant point as to cause permanent paralysis if the defendants herein, including Dr. Palumbo, had acted appropriately. The patient would have been sent to an appropriate facility and surgery performed – a surgery we know she accepted when told that it was required. 7 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 25. Instead, the patient was left in a situation where she continued to sustain progression of her condition leading to substantial deterioration of her neurologic status, leading to spinal cord injury and then was subjected to further delays during the time which it took to ascertain surgery was needed, arrangements for transfers were made, transfer had to be carried out, and the work up required to allow a surgeon to proceed had to be conducted. 26. As explained, even if one were to assume that it was appropriate to allow conservative treatment (which plaintiff’s expert clearly states it is not) there is no question that at a bare minimum, the patient should have been at an appropriate facility equipped with proper staff to properly monitor the patient and act immediately if there were neurological decline. There is no dispute about the fact that Southside Hospital was not equipped to perform the type of surgery the patient required and as such, she should never have been placed there for monitoring to see if she needed surgical intervention that they couldn’t provide. This is not a situation where a patient should be permitted to be in a setting where significant decline can occur without having the means to correct it immediately. 27. If Dr. Palumbo, amongst others, had acted in accordance with the standard of care, the patient would already have been in a proper medical facility, she would not have been in the situation that allowed her neurological deficits to progress to such a significant point as to cause permanent paralysis. The patient would have been sent to an appropriate facility where a workup and surgery could be undertaken far sooner than it was. There is only a limited amount of time during which surgical intervention can reverse spinal cord damage. By the time the patient arrived at NSUH Manhasset – the patient had already been subjected to spinal cord compression resulting in sensory loss, loss of motor function and bowel function for such a substantial period of time that the chances of surgery being successful were diminished. The delays occasioned by the failure to have the patient transferred to an appropriate facility well 8 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 before the further neurological deterioration recorded as beginning no later than June 26 resulted in a substantial loss of chance for this patient to make a full recovery, as surgery could have been performed much sooner than it was. 28. The issue of proximate cause is one that is very fact specific. Additionally, the law is clear that there may be more than one cause of an injury. Please see PJI 2:70, Proximate Cause - In General. Additionally, “where the independent and negligent acts or omissions of two or more parties cause injury to another, each of those negligent acts or omissions is regarded as a cause of that injury provided that it was a substantial factor in bringing about that injury.” Please see PJI, 2:71, Proximate Cause - Concurrent Causes. 29. None of the cases cited by the defendants supports the conclusory insinuations that Dr. Palumbo is not properly liable because of the fact that Dr. Darakchiev, or any other provider, was involved in the patient’s care. These doctors can not be held responsible for the departures of Dr. Palumbo, just as Dr. Palumbo can not be held liable for their actions. 30. CPLR §3212(b) makes it crystal clear that a motion for summary judgment “shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.” The law is further clear that in deciding a motion for summary judgment, the evidence must be scrutinized in the light most favorable to the party opposing summary judgment. Ptasnik v. Schultz, 223 A.D.2d 695 (2nd Dept. 1996); Ampolini v. Long Island Lighting Co., 186 A.D.2d 772 (2nd Dept. 1992); Forte v. Franklin Gen. Hosp. 185 A.D.2d 914 (2nd Dept. 1992; Quadrozzi v. Norcem, Inc., 125 A.D.2d 559 (2nd Dept. 1986); Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366 (2nd Dept. 1985). 31. As the Appellate Division, Second Department, explained in Jastrzebski v. North Shore School District, 223 A.D. 2d 677, 678 (2nd Dept. 1996): It is well established that on a motion for judgment as a matter of law, the court is not to engage in the weighing of evidence; rather the court’s function is to determine whether 9 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 “by no rational process could the trier of facts find for the nonmoving party” (Dolitsky v Bay Isle Oil Co. , 111 AD2d 366; see also, Westchester Joint Water Works v City of Yonkers , 155 AD2d 536; Dooley v Skodnek , 138 AD2d 102). It is equally well established that the evidence must be viewed in the light most favorable to the nonmoving party and that the motion should not be granted where the facts are in dispute, where conflicting inference may be drawn from the evidence, or where there are issues of credibility (see, Dolitsky v Bay Isle Oil Co. , supra ; see also, Ampolini v Long Island Lighting Co. , 186 AD2d 772; Quadrozzi v Norcem, Inc. , 125 AD2d 559). 32. Likewise, in Frutarom v. Flavormatic Industries, 237 A.D.2d 487 (2nd Dept., 1997), the Second Department explained: It is well settled that issue finding, as opposed to issue determination, is the key to summary judgment...and the papers will be scrutinized carefully in a light most favorable to the party opposing the motion... (Citations omitted). 33. The submission of any evidence from which a reasonable person could conclude that the defendants departed or deviated from the accepted standards of care, and that said departure or deviation proximately caused the alleged injuries, establishes a prima facie case of medical malpractice. Alberti v. St. John’s Episcopal Hospital, 116 A.D.2d 612, 497 N.Y.S.2d 701 (2d Dep’t 1986). 34. Furthermore, a plaintiff who is opposing a summary judgment motion in a medical malpractice action solely needs to demonstrate that a defendant’s negligence was a substantial contributing factor to the injury. The plaintiff may satisfy this burden by presenting evidence from which a reasonable person could infer that the negligence proximately caused the alleged injury. Hughes, supra; Koster v. Greenberg, 120 A.D.2d 644, 502 N.Y.S.2d 395 (2d Dep’t 1986). 35. When the plaintiff in a medical malpractice action submits the affirmation of a medical expert in opposition to a summary judgment motion by a defendant which sets forth specific departures based upon a review of the pertinent medical records and deposition testimony and attests that such departures were a proximate cause of the alleged injuries, the 10 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 court is precluded from granting judgment as a matter of law. Cervkvenik v. County of Westchester, 200 A.D.2d 703, 607 N.Y.S.2d 66 (2d Dep’t 1994); Banks v. Barkoukis, 182 A.D.2d 603, 582 N.Y.S.2d 215 (2d Dep’t 1992). Furthermore, the submission of conflicting medical opinions by the parties necessarily presents a genuine issue of fact which requires the denial of the summary judgment motion. Viti v. Franklin General Hospital, 190 A.D.2d 790, 593 N.Y.S.2d 840 (2d Dep’t 1993). 36. Even the color of a triable issue of fact forecloses the remedy of summary judgment. Benincasa v. Garrubbo, 141 A.D.2d 636 (2nd Dept. 1988). See also Cardenas v. Curtain, 230 A.D. 2d 702 (2nd Dept. 1996); McKenica v. City of Tonawanda, 239 A.D. 2d 951 (4th Dept.1997); Felice v. Gershkon, 34 A.D. 2d 1008 (2nd Dept. 1970). Thus, in determining a motion for summary judgment, it is the court’s role to search the record in an effort to discern whether triable issues of fact exist. THE DEFENDANTS HAVE FAILED TO ESTABLISH ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW 37. In the instant case, the defendants have failed to make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form which eliminates any material issues of fact from the case. Zuckerman, supra; Winegrad, supra. 38. Neither the affidavit by the defendant’s expert nor the affirmation by defense counsel are sufficient to establish the absence of material, triable issues of fact. The bare, conclusory assertions of the defendant’s expert that the defendants did not deviate or depart from good and accepted practice, without consideration of all of the relevant facts and the appropriate standard of care in issue are insufficient to make a prima facie showing of entitlement to judgment as a matter of law. Winegrad v. New York University Medical Center, 64 N.Y. 2d 851, 853 (1985). Therefore, such assertions must be rejected by this court. 11 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 39. Given the foregoing, the defendants’ motion must be denied in accordance with the clear, well-established legal principles governing summary judgment motions, as discussed above. In order to establish that a cause of action has no merit so as to entitle the movant to summary judgment, an expert affidavit must do more than simply state, in a conclusory fashion that the moving defendants acted in conformity with the appropriate standard of care. Machac v. Anderson, 261 A.D. 2d 811 (3rd Dept. 1999). Bare, conclusory assertions that these defendants did not deviate from good and accepted practices which do not address all of the facts relevant to the care in question do not establish that a cause of action has no merit so as to entitle the movant to summary judgment. Machac, supra, at 811; see also Fredericks v. North General Hospital, 2001 N.Y. App. Div.LEXIS 12271 (1st Dept. 2001). The movant has clearly failed to make a prima facie showing of entitlement to summary judgment, which requires denial of the motion, irrespective of the sufficiency of the opposing papers. Zuckerman, supra; Winegrad, supra; Yelin v. American Dental Center, 184 A.D.2d 693 (2d Dep’t 1992) PLAINTIFFS HAVE ESTABLISHED THE REQUISITE ELEMENTS OF THEIR CAUSE OF ACTION 40. In opposition to defendants’ motions, the plaintiff submits the affidavit of a board certified physician which causally connects the defendant’s actions to the injuries suffered by plaintiff. (Please see Plaintiff’s Exhibits “1”) These opinions, derived from medical records and testimony, clearly raise sufficient questions of fact to defeat the defendants’ summary judgment motions. 41. Assuming, arguendo, that the Court finds the defendants have satisfied the requisite burden for establishing that there is nothing related to the defendants’ actions that can be causally related to the injuries sustained by this individual, this application should still be denied as material issues of fact exist. The submissions by plaintiff to this motion undoubtedly 12 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 raises questions of fact as to the causation issues herein that require resolution by a jury. Alberti v. St. John’s Episcopal Hospital, 116 A.D.2d 612, 497 N.Y.S.2d 701 (2d Dep’t 1986). 42. As can be gleaned from the attached affidavit of plaintiff’s expert, evidentiary facts exist which clearly rebut any showing which could possibly be said to have been established that there is no possible way that their actions were causally related to this plaintiff’s injuries and demonstrate the existence of triable issues of fact. Kramer v. Rosenthal, 24 A.D.2d 392, 637 N.Y.S.2d 772 (2d Dep’t 1996); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). 43. Plaintiff’s expert affirmations establish issues of fact warranting resolution by a jury. Consequently, the instant motions must be denied. Toledo v. Ordway, 208 A.D.2d 518, 616 N.Y.S.2d 1006 (2nd Dep’t 1994). 44. Assuming the facts in the light most favorable to the plaintiff’s for the purposes of this motion, Dr. Palumbo departed from accepted standards of care by offering the patient conservative treatment as an option when it was not a medically appropriate option. Viewing the facts in the light most favorable to the plaintiff, the patient’s condition was such that she required surgery and should not, pursuant to accepted standards of care, have been offered the option of conservative treatment or that she could consider possible elective surgery. Moreover, in viewing the evidence in the light most favorable to the plaintiff, even if it was appropriate to offer conservative management, the patient should have been transferred to a facility that could provide immediate surgery in the event she declined. 45. Additionally, plaintiff has provided ample evidence, including the affirmations of a qualified expert physicians that establishes prima facie evidence in this action that contradicts 13 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 any showing by the defednants1 thereby demonstrating the existence of triable issues of fact that require denial of the defendants’ motion. (Please see plaintiff’s Exhibit 1) 46. Based on the actual evidence in the case, plaintiff’s experts clearly establishes that at a minimum – there are questions of fact that require resolution by a jury and as such, the defendants’ motions must be denied. CONCLUSION 47. The defendant has failed to satisfy their burden. Consequently, their applications should be denied. Moreover, the documentary evidence and the affidavit of the plaintiff’s expert establish issues that require determination by a jury. Thus, the instant motions should be denied in their entirety. WHEREFORE, the plaintiffs respectfully request that this Honorable Court deny the relief requested in the instant application in all respects. Dated: Uniondale, New York April 25, 2022 ______________________________ MARY ELLEN DUFFY, ESQ. 14 of 15 FILED: SUFFOLK COUNTY CLERK 04/25/2022 06:02 PM INDEX NO. 017176/2011 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 04/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------------------------------------------------X BARBARA CALLE as ADMINISTRATOR OF THE ESTATE OF LILLIAN GOULD, deceased Plaintiff(s), -against- TOCHI IROKU-MALIZE, M.D., MARK HILLEL Index No.: 017176/11 AUERBACH, M.D., STEVEN SAMUELS, M.D., BRIAN SCOTT BLAUSTEIN, D.O., RONALD IRA LENEFSKY, M.D., SUFFOLK INTERNAL MEDICINE ASSOCIATES, RULE 202.8-b P.C., BERNARD JAY NASH, M.D., ANDREW CERTIFICATION DOUGLAS ROGOVE, M.D., LONG ISLAND NEUROLOGY, P.C., “JOHN/JANE DOE, M.D.” (First and Last Name Being Fictitious), SALVATORE J. PALUMBO, M.D., SALVATORE J. PALUMBO, M.D., P.C., PATRICK JULIAN REID, M.D., PATRICK REID PHYSICIAN SERVICES, P.C., PATRICK REID, M.D., P.C. and SOUTHSIDE HOSPITAL, Defendant(s). ----------------------------------------------------------------------X I, Mary Ellen Duffy, Esq., an attorney duly admitted to practice in the Courts of New York State, affirms the following in accordance with CPLR §2106: I am associated with the law firm of Duffy & Duffy, PLLC. Word Count. The total number of words in this Affirmation in Opposition, inclusive of point headings and footnotes and exclusive of the caption, pages containing the table of contents, table of authorities, signature block, proof of service or certificate of compliance, is 4293. I certify that the aforesaid document was prepared on a computer using Microsoft Word and is submitted in compliance with the word count limit as specified in Uniform Civil Rule 202.8-b. Dated: Uniondale, NY April 25, 2022 __________________________________ Mary Ellen Duffy, Esq. 15 of 15