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FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022
NSB/lmt
1194-87105
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BARBARA SACKAROFF, ATTORNEY AFFIRMATION
Plaintiff, Index No.: 514577/2020
-against-
SUDHIR DIWAN, M.D., SUDHIR DIWAN, MD LLC,
ADVANCED SPINE ON PARK AVENUE MSO, LLC,
MANHATTAN SPINE AND PAIN MANAGEMENT,
PLLC, IGOR AMIGUD, M.D., JANDE WEEKS, CRNA,
IGOR AMIGUD PHYSICIAN P.C., FIFTH AVENUE
SURGERY CENTER, LLC,
Defendants.
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COUNSELORS:
NICOLE S. BARRESI, an attorney duly admitted to practice law before the Courts of
this State, and a partner with the firm of MARTIN CLEARWATER & BELL LLP, attorneys of
record for defendant JANDE WEEKS, CRNA (hereinafter referred to as “CNRA Weeks,” or
“Defendant” collectively), hereby affirms the following to be true under penalty of perjury:
1. I am fully familiar with the facts and circumstances of this action by virtue of a
review of the file maintained in this matter in the offices of MARTIN CLEARWATER & BELL
LLP.
2. This affirmation is submitted in support of the defendant’s application seeking an
order:
(a) Pursuant to CPLR §3212 granting Summary Judgment and dismissal of all the
causes of action against CRNA Weeks, as a matter of law;
(b) Directing entry of judgment with prejudice in favor of CRNA Weeks and
deleting her name from the caption;
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(c) Pursuant to CPLR § 3212, granting partial summary judgment
dismissing any and all causes of action, parties, or theories that ought to
be dismissed as a matter of law; and
(d) Granting such other and further relief as this Court deems just and proper.
INTRODUCTION
3. It is respectfully submitted that summary judgment should be afforded to
defendant Jande Weeks CRNA, as there was no negligence on the part of the defendant and
plaintiff will be unable to establish a prima facie case against her at trial.
4. Based upon the annexed Expert Affirmation of David Albert, M.D., a physician
with many years of relevant experience in the field of anesthesiology, the treatment rendered by
Ms. Weeks was at all times within the standard of care and did not proximately cause any
injuries claimed by plaintiff. (Annexed hereto as Exhibit “A” is the Affirmation of
anesthesiologist, Dr. David Albert).
SUPPORTING EXHIBITS
5. The following exhibits are attached in support of defendants’ motion:
EXHIBIT A: Expert Affirmation of David Albert, M.D.
EXHIBIT B: Summons and Verified Complaint
EXHIBIT C: Verified Answer of Jande Weeks, CRNA
EXHIBIT D: Bills of Particulars as to the Defendants
EXHIBIT E: The relevant medical records received from co-defendant
Fifth Avenue Surgery Center
EXHIBIT F: Deposition transcript of plaintiff, Barbara Sackaroff
EXHIBIT G: Deposition transcript of co-defendant, Dr. Diwan
EXHIBIT H: Deposition transcript of co-defendant, Dr. Amigud
EXHIBIT I: Deposition transcript of defendant, CRNA Jande Weeks
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EXHIBIT J: Note of Issue
PROCEDURAL HISTORY
6. This medical malpractice action was commenced on or about August 10, 2020, by
the filing of a Summons and Verified Complaint under Index# 514577/2020 (Exhibit B). Issue
was joined as to CRNA Weeks by service of a Verified Answer on September 14, 2020.
(Exhibit C). Plaintiff served Verified Bills of Particulars as to the defendants, dated January 27,
2021. (Exhibit D).
7. Briefly, this case involves a then 67-year old female plaintiff who alleges that co-
defendant Dr. Igor Amigud and the moving defendant CRNA Jande Weeks negligently
administered anesthesia during a right sacroiliac joint surgery that was performed by co-
defendant Dr. Sudhir Diwan on January 7, 2020, which resulted in plaintiff “aspirating”
gastric/digestive contents during the surgery. Co-defendant, Dr. Igor Amigud was the
anesthesiologist for the procedure and he managed the case with CRNA Weeks assisting. As a
result of the alleged malpractice by Dr. Amigud and CRNA Weeks, plaintiff alleges that she
suffered damage to her vocal cords causing loss of voice and hoarseness, shortness of breath, and
pain and suffering. Plaintiff also claims that Dr. Diwan negligently performed the Cornerloc
surgery causing an insufficiency fracture to plaintiff’s right sacrum.
8. Throughout the course discovery, depositions were completed as follows:
plaintiff, Barbara Sackaroff was deposed on December 14, 2021 (Exhibit F); co-defendant Dr.
Sudhur Diwan, M.D., was deposed on February 25, 2022 (Exhibit G); co-defendant Dr. Igor
Amigud was deposed on March 28, 2022 (Exhibit H); and defendant Jande Weeks, CRNA was
deposed on July 14, 2022 (Exhibit I).
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9. Plaintiff never sought the deposition of any institutional witnesses from Fifth
Avenue Surgery Center and have discontinued this entity.
10. On October 18, 2022, plaintiff filed the Note of Issue. (Exhibit J).
11. At the time of this affirmation, discovery has been completed. Accordingly, the
instant motion is timely. There has been no prior request for this relief.
ALLEGATIONS
12. Plaintiff’s Bill of Particulars allege that CRNA Weeks was negligent on January
7, 2020. Plaintiff alleges that during the performance of an elective surgical procedure involving
the right sacroiliac joint, CRNA Weeks failed to: recognize the significance of a past medical
history of gastroesophageal reflux, recognize the significance of the patient coughing throughout
the Cornerloc procedure, timely and properly position the patient in the prone or side lying
position during the Cornerloc procedure, timely and properly position the patient in the supine
position during the Cornerloc procedure, place the patient in the supine position during the
Cornerloc procedure, place the patient in the side lying position during the procedure, properly
and timely suction the patient, properly and timely administer anesthetic medications to decrease
the chance of aspiration, properly and timely intubate the patient during the Cornerloc procedure,
timely and properly administer H2 blockers, proton pump inhibitors, prokinetics or other
medication to decrease the chances of aspiration during the Cornerloc procedure, place the
patient’s head higher than her abdomen during the Cornerloc procedure, place patient in the head
down tilt position during the procedure, take a careful medical history, perform a careful physical
examination, properly and timely coordinate and communicate care and treatment between
physicians and other health care professions, keep up to date with changes in medical practice,
take all necessary, reasonable and prudent actions to prevent the conditions from which the
defendant was aware, knew and/or should have known to cause injury, use reasonable care, have
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the requisite skill or knowledge, properly use alternative or ancillary procedures, properly and
timely coordinate care and treatment between physicians and nursing staff and supervise
residents interns and staff. It is further alleged that CRNA Weeks subjected the patient to further
injury additional medical treatment therapy procedures and medications. (Exhibit D).
13. Plaintiff has also asserted an informed consent claim against CRNA Weeks.
More specifically, it is alleges that CRNA Weeks failed to provide appropriate information
concerning: the proposed operations, procedures and/or medications, the alternatives to these
procedures and the reasonably foreseeable risks. It is alleged that CRNA Weeks failed to explain
in words understandable to the patient all the facts that would be explained by a reasonable
medical practitioner so that informed consent could be obtained. (Id.)
14. As a result, plaintiff alleges that she suffered an aspiration and related injuries.
Plaintiff has also alleged to have suffered a nondisplaced right sacral insufficiency fracture
which is unrelated to CRNA Weeks care. (Id.)
STATEMENT OF REVELANT FACTS
15. On January 7, 2020, plaintiff presented to co-defendant Dr. Diwan at The Fifth
Avenue Surgery Center, LLC for a Cornerloc sacroiliac joint stabilization procedure. (Exhibit
E). Co-defendant Dr. Amigud was the anesthesiologist for the procedure and the moving
defendant, Jande Weeks, CRNA was the nurse anesthetist for the procedure. (Id. at 34) Prior to
the procedure, Dr. Amigud as the attending anesthesiologist reviewed the patient’s medical and
surgery history, allergies, and prior experiences with anesthesia, and obtain the patient’s
informed consent to the anesthesia. (Id.) CRNA Weeks also spoke to the patient to confirm the
patient’s history. Here, the plaintiff advised she had low back and upper buttock pain. (Exhibit
E at 34). She had allergies or reactions to iodine, contrast, Keflex and shellfish. (Id.) She was
taking rouvastatin, zolpidem, valcyclovir, and furosemide. (Id.) She had a past surgical history
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of a right hip replacement, and left shoulder replacement. (Id.) She had a prior medical history of
hypercholesterolemia and anxiety. (Id.) A physical exam performed by Dr. Diwan noted a
normal cardiac, pulmonary, HEENT, neurological, GI, musculoskeletal and extremity exam. (Id.
at 22).
16. CRNA Weeks and Dr. Amigud both also spoke to the plaintiff pre-operatively.
(Exhibit E at 34). It was documented that plaintiff had hypercholesterolemia, anxiety, and a
questionable murmur. (Id.) She had a hip surgery, shoulder surgery, C-section, hernia repair and
tonsillectomy. (Id.) She was allergic to Cipro, iodine, and Keflex. She taking Aleve, Cymbalta
Tylenol and Ambien. (Id.) She had a normal mouth opening and neck range of motion. (Id.)
Her cardiac and pulmonary exam was normal and Dr. Amigud and CRNA Weeks both signed
the one paged anesthesia record. (Id.) Plaintiff did not report any history of GERD or acid
reflux. (Id.) Neither the anesthesia record nor Dr. Diwan’s pre-operative notes indicated that
plaintiff ever reported having any reflux or GERD. (Exhibit E). Further, none of the
medications are to treat GERD.
17. Plaintiff signed a written consent for the surgery and a consent for the
administration of anesthesia. (Id. at 19) The consent for anesthesia form is signed by co-
defendant Dr. Amigud. (Id.). Notably, the anesthesia consent lists hoarseness, voice change,
and difficulty breathing as risks of the anesthesia. (Id.) CRNA Weeks did not sign or have a
consent form as she was not the provider responsible for obtaining consent. (Exhibit I at 39).
18. Plaintiff was positioned in the prone position as was required to perform this
procedure. (Exhibit G at 62, Exhibit E at 40). At 2:35 p.m., monitored anesthesia care was
started intravenously. (Id. at 34). Dr. Amigud was present in the OR for the entire procedure
and was directing the management of the anesthesia. (Exhibit H at 46). Plaintiff initially
received Propofol and then a combination of Fentanyl and Versed without incident. (Exhibit E at
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34). At 2:51 p.m. plaintiff was given Zofran which is administered to prevent patients from
being nauseated when they awake form the anesthetic medications. (Id. and Exhibit H at 50).
19. The procedure was uneventful until 3:22 p.m., when Flumazenil and Narcan were
given to reverse the sedation. (Exhibit E at 34). At 3:27 p.m., it was documented that plaintiff
had coffee ground secretions in her nasal cannula. (Id.) The anesthesia was reversed, and after
one minute plaintiff was awake and coherent. (Id.) Her oxygen saturation was 95% and her vital
signs were stable. (Id.) CRNA Weeks suctioned plaintiff’s mouth and the surgery was
continued with plaintiff awake, but under sedation. (Id. and Exhibit I at 76). She continued to be
able to speak with the providers and no significant coughing was noted. (Exhibit I at 90, 60).
Anesthesia was stopped at 3:35 p.m. (Exhibit E at 34) Plaintiff was transferred to the post-
anesthesia care unit (“PACU”) in stable condition at 3:40 p.m. (Id.) Upon arrival she was stable
with a blood pressure of 123/62, heart rate of 100 bpm, oxygen of 96% and respiratory rate of
16. (Id.)
20. CNRA Weeks did not treat the plaintiff in the PACU and testified that she left
shortly after the procedure but that the plaintiff was stable. (Exhibit I at 84). Plaintiff was
monitored by the co-defendants in the PACU and at 5:20 p.m., plaintiff was discharged home.
ARGUMENT
SUMMARY JUDGMENT STANDARD
21. “[T]he proponent of a summary judgment motion must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issue of fact.” Alvarez v. Prospect Hosp., 68 N.Y.2d
320, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). Once a prima facie showing has been made, the
burden shifts to the non-moving party who must “produce evidentiary proof in admissible form
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sufficient to establish the existence of material issues of fact which require a trial of the action”.
Id.
22. Summary judgment should be granted where a party has tendered evidentiary
proof in admissible form to demonstrate the absence of any material issues of fact. See Id.;
Winegrad v. New York University Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985). “[W]hen
there is no genuine issue to be resolved at trial, the case should be summarily decided, and an
unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus
deny to other litigants the right to have their claims promptly adjudicated.” Andre v. Pomeroy,
35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131, 133 (1974).
23. To properly oppose a motion for summary judgment, a party is obligated to “lay
bare his proofs” to sufficiently demonstrate, in evidentiary form, that a triable issue of fact
genuinely exists. Lo Breglio v. Marks, 105 A.D.2d 621, 622, 481 N.Y.S.2d 352, 354 (1st Dep’t
1984), aff’d, 65 N.Y.2d 620, 480 N.E.2d 745, 491 N.Y.S.2d 156 (1985). See also Friends of
Animals v. Associated Furs Mfgs., 46 N.Y.2d 1065, 1067, 390 N.E.2d 298, 416 N.Y.S.2d 790,
791 (1979); Smith v. Johnson Prod. Co., 95 A.D.2d 675, 676, 463 N.Y.S.2d 464, 466 (1st Dep’t
1983). To defeat a defendant’s motion for summary judgment, it is incumbent upon the plaintiff
to establish a prima facie case. See McCraith v. Wehrung, 42 A.D.2d 825, 345 N.Y.S.2d 803
(4th Dep’t 1973).
24. In a medical malpractice action, plaintiff must show, through a medical expert,
both a deviation from accepted standards of medical care and that the treatment rendered by the
moving defendant was a proximate cause of plaintiff’s injuries. See e.g., Kaffka v. New York
Hosp., 228 A.D.2d 332, 644 N.Y.S.2d 243 (1st Dep’t 1996) appeal denied, 89 N.Y.2d 913, 676
N.E.2d 496, 653 N.Y.S.2d 914; Prete v. Rafla-Demetrious, 224 A.D.2d 674, 638 N.Y.S.2d 700
(2d Dep’t 1996); Canter v. Mulnick, 93 A.D.2d 751, 461 N.Y.S.2d 305 (1st Dep’t 1983), aff’d,
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60 N.Y.2d 689, 455 N.E.2d 1257, 468 N.Y.S.2d 462. See also Fridovich v. David, 188 A.D.2d
984, 591 N.Y.S.2d 885 (3d Dep ’t 1992); Ferrara v. South Shore Orthopedic Associates, 178
A.D.2d 364, 577 N.Y.S.2d 813 (1st Dep’t 1991). In the absence of evidence that defendant’s
conduct was a proximate cause of plaintiff’s injury, summary judgment must be granted to
defendant as a matter of law. Id. “General allegations of medical malpractice, merely
conclusory in nature and unsupported by competent evidence tending to establish the essential
elements of the claim, are insufficient to defeat a defendant physician’s entitlement to summary
judgment.” Holbrook v. United Hosp. Medical Ctr., 248 A.D.2d 358, 669 N.Y.S.2d 631 (2d
Dep’t 1998).
25. In the instant matter, CRNA Weeks has demonstrated that there are no material
issues of fact or evidence to support the plaintiff’s claims that the care provided by her was not at
all times supervised and directed by the attending Dr. Amigud or that the care in any way
deviated from the standard of care. It is further submitted that plaintiff also is unable to
demonstrate that any care provided by CRNA Weeks was the proximate cause of plaintiff’s
injuries. Now, to defeat defendants’ motion for summary judgment, plaintiff must show through
a medical expert both a deviation from accepted standards of medical care and that the treatment
rendered by CRNA Weeks was the proximate cause of Ms. Sackaroff’s alleged injuries. Plaintiff
must also demonstrate that CRNA Weeks care was not supervised/directed by Dr. Amigud.
Herein, the plaintiff is unable to establish evidence that there CRNA Weeks acted independently,
in a manner that was a deviation from the standard of care and/or that any alleged deviation
proximately caused any of the alleged injuries. Accordingly, plaintiff’s Complaint must be
dismissed with prejudice as to CRNA Weeks.
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I. JANDE WEEKS, CRNA IS ENTITLED TO SUMMARY JUDGMENT AS A
MATTER OF LAW
A. JANDE WEEKS CRNA WAS AT ALL TIMES ACTING UNDER THE SUPERVISION OF DR.
IGOR AMIGUD AND CANNOT BE HELD LIABLE
26. It is well settled that “[w]hen supervised medical personnel are not exercising
their independent medical judgment, they cannot be held liable for medical malpractice unless
the directions from the supervising superior or doctor so greatly deviates from normal medical
practice that they should be held liable for failing to intervene.” Bellafiore v. Ricotta, 83 AD3d
632, 633 (2d Dep’t 2011). The extent of this rule is best exemplified by the Appellate Division,
Second Department’s decision in Soto v. Andaz, 8 AD3d 470 (2d Dep’t 2004). There, a resident
who had participated in a surgery and had actually performed part of the surgery at the
attending’s direction, was denied summary judgment by the trial court. In reversing, the Second
Department noted that the resident had, indeed, demonstrated entitlement to summary judgment
by submitting evidence that he was under the attending physician’s supervision at all times. Id., 8
AD3d at 471. “Although the evidence demonstrated that the appellant played an active role in
Soto’s procedure, it did not demonstrate the exercise of independent medical judgment.” Id.
27. The same is true of Crawford v. Sorkin, 41 AD3d 278 (2d Dep’t 2007), where the
Second Department concluded that even a resident’s status as “night chief resident” was not
enough to impute liability to a resident acting under the supervision of attendings. This was
particularly true where the resident’s chart entries “reflect[ed] her intent to discuss repeat labs
and other such matters with the attendings.” Id., 41 AD3d at 280.
28. Here, Dr. Amigud performed a prior physical examination, took a history on the
plaintiff and obtained her consent for anesthesia. Dr. Amigud was present in the OR for the
entirety of the case and followed her in the PACU after the procedure. Dr. Amigud was
supervising and directing the anesthesia care at all times and made all final decisions in the case.
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(Exhibit A at ¶17-18). Therefore, CRNA Weeks was at all times acting under the supervision of
Dr. Amigud and was not exercising independent medical judgment. As the expert affirmation by
Dr. Albert makes clear, the anesthesia care was within the standard of care, therefore, there is no
evidence that there were any directions of a supervising doctor (Dr. Amigud) that so greatly
deviated from normal medical practice that CRNA Weeks could be held liable for failing to
intervene. (Id. at ¶16).
29. Having an active role in the patient’s medical treatment is insufficient to maintain
this action against CRNA Weeks. In Soto v. Andaz, 8 AD3d 470 (2d Dep’t 2004) the Court held
that although the evidence demonstrated that the appellant played an active role in a patient’s
procedure, it did not demonstrate the exercise of independent medical judgment. Here, this case
in analogous because while CRNA Weeks was an active participant in the anesthesiology
management the care and treatment was at all times supervised by Dr. Amigud who was in the
room and made all final decisions regarding plaintiff’s care.
30. Accordingly, CRNA Weeks by virtue of her role in the plaintiff’s care and the
above case law, cannot be held liable in this matter. Therefore, summary judgment should be
granted as a matter of law.
B. CRNA WEEKS IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THE TREATMENT
AND CARE RENDERED BY MS. WEEKS AND THE ANESTHESIA TEAM WAS WITHIN THE
STANDARD OF CARE AND IT DID NOT PROXIMATELY CAUSE THE PLAINTIFF’S
INJURIES
31. As discussed in the Expert Affirmation of David Albert, M.D., an expert in
anesthesiology who has also supervised CRNAs, it is his opinion that all of the care and
treatment provided to Ms. Sackaroff by CRNA Weeks was within the standard of care and that
none of the care and treatment proximately caused plaintiff’s alleged injuries. (Exhibit A at
¶16). Therefore, it is submitted that this motion for summary judgment must be granted.
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i. The anesthesia care and treatment rendered during the January 7, 2020
procedure was within the standard of care
32. Dr. Albert has opined that CRNA Weeks obtained a proper history from the
plaintiff. (Exhibit A at ¶18). CRNA Weeks documented that the plaintiff had
hypercholesterolemia, anxiety and a heart murmur. CNRA Weeks also discussed her
medications, allergies, and surgical history and if plaintive had any anesthesia issues with her
prior procedures. Dr. Amigud confirmed she was NPO and reviewed her cardiovascular
pathology and current medications. (Exhibit I at 42). Plaintiff failed to report a history of
gastroesophageal reflux. This condition is also not documented on any of the procedure notes,
despite three different providers having taken her history, and plaintiff did not tell her providers
that she had or may have this condition. In fact, plaintiff admitted that she did not recall telling
the medical providers about this condition and feared being forthcoming about her medical
history. Dr. Albert opined that physicians must rely on patients reported history, as it would not
be the standard of care for a provider to obtain and search through a patient’s records for
conditions they may be withholding. (Exhibit A at ¶19). Therefore, any claims against CRNA
Weeks regarding the taking and appreciating the plaintiff’s history must be dismissed
33. Dr. Albert also opined that CRNA Weeks performed a careful and complete
physical examination of the plaintiff, including listening to her heart and lungs and assessing her
airway. (Id. at ¶20). Dr. Albert opined that GERD or a predisposition for having a
regurgitation/aspiration during surgery would not have been able to be detected on a pre-
operative anesthesia examination. (Id.) Therefore, any claims regarding the physical examination
in this case should be dismissed.
34. Plaintiff was appropriately positioned throughout the entire procedure and any
claims regarding the positioning are not appropriate as to CRNA Weeks. Here, the prone
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positioning of the patient was selected by her surgeon, Dr. Diwan. (Exhibit I at 50). The
plaintiff had to be in a specific position for the Cornerloc procedure to be performed to give the
surgeon access to the surgical field. Claims regarding CRNA Weeks alleged failure to place the
plaintiff’s head higher than her abdomen during the Cornerloc procedure is meritless as Dr.
Diwan selected the positioning and there was no ongoing regurgitation or emesis to warrant a
change in position during the procedure. Plaintiff also claims that the patient should have been
put in the head down tilt position during the procedure. Again, the surgeon selected the position
and these claims are inapplicable to CRNA Weeks care. Dr. Albert opined that since plaintiff
cleared any secretions, there was no need to move her while she was stable, awake and speaking.
To the extent the plaintiff is claiming that the patient should have been turned to supine or side
lying, this claim is without merit. When the secretions were observed the patient was reversed
immediately and awoken. She remained stable and was able to speak with no signs or symptoms
of an aspiration and there was no reason to move the patient. As she was stable and the
procedure was nearly complete there was no indication to move her to a different position.
Therefore, all claims regarding the positioning of the plaintiff in this case are meritless and
should be dismissed.
35. Expert, Dr. Albert has opined that the claim regarding failure to administer
medications (including H2 blockers, proton pump inhibitors, and prokinectics) is similarly
without merit. (Exhibit A at ¶22). An aspiration is a risk of any anesthesia and there is no
specific medication that prevents this from occurring in all cases. Further, Dr. Albert opined that
based upon the history given there was no need for additional medications. (Id.)
36. Next, any claims regarding the alleged failure to provide suctioning must also be
dismissed. This patient did not require suctioning as any secretion had drained via gravity. (Id.
at ¶23). However CRNA Weeks performed suctioning on the patient and nothing came out.
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(Exhibit I at 77). Therefore, while Dr. Albert opined that suctioning was not required, CRNA
Weeks testified she performed suctioning and nothing was present. (Exhibit I at 76; Exhibit A at
¶23). Therefore, this claim is meritless and should be dismissed.
37. Dr. Albert makes clear in the expert affirmation that this patient never required
intubation and that she was appropriately managed on MAC sedation and then light sedation.
(Exhibit A at ¶24). Plaintiff alleges that CNRA Weeks failed to properly and timely intubate the
patient during the Cornerloc procedure. Intubation is not a procedure without risk including, but
not limited to aspiration and vocal cord damage. Patients cannot be intubated in the prone
position. Therefore, any decision to intubate would have required turning the patient supine and
potentially risking an infection or other complication of the surgical procedure. Dr. Albert
opined that there was no basis to intubate this patient. (Id.) At the time of the "coffee grounds
event" the patient was stable by all indicators, and she was not actively bleeding or vomiting.
Therefore, the risk to re-position the patient and induce general anesthesia/intubate far
outweighed the risk to wake the patient and proceed under light sedation in the same position.
There was never any indication to support intubation and to have done so would have increased
plaintiff’s risks of complications. Therefore, these claims are without merit and should be
dismissed.
38. There is similarly no merit to plaintiff’s claim that CRNA Weeks failed to
“recognize the significance of the patient coughing throughout the Cornerloc procedure.” First,
there is no evidence that the patient was coughing throughout the entire procedure. The evidence
from all the providers in the room was that plaintiff had very little to no coughing despite being
awoken during the procedure. Therefore, this claim should be dismissed.
39. There are general claims regarding the failure to communicate between the health
care professionals and regarding supervision. These claims are without merit. CRNA Weeks
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FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM
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FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 NSB/lmt 1194-87105 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X BARBARA SACKAROFF, ATTORNEY AFFIRMATION Plaintiff, Index No.: 514577/2020 -against- SUDHIR DIWAN, M.D., SUDHIR DIWAN, MD LLC, ADVANCED SPINE ON PARK AVENUE MSO, LLC, MANHATTAN SPINE AND PAIN MANAGEMENT, PLLC, IGOR AMIGUD, M.D., JANDE WEEKS, CRNA, IGOR AMIGUD PHYSICIAN P.C., FIFTH AVENUE SURGERY CENTER, LLC, Defendants. ---------------------------------------------------------------------X COUNSELORS: NICOLE S. BARRESI, an attorney duly admitted to practice law before the Courts of this State, and a partner with the firm of MARTIN CLEARWATER & BELL LLP, attorneys of record for defendant JANDE WEEKS, CRNA (hereinafter referred to as “CNRA Weeks,” or “Defendant” collectively), hereby affirms the following to be true under penalty of perjury: 1. I am fully familiar with the facts and circumstances of this action by virtue of a review of the file maintained in this matter in the offices of MARTIN CLEARWATER & BELL LLP. 2. This affirmation is submitted in support of the defendant’s application seeking an order: (a) Pursuant to CPLR §3212 granting Summary Judgment and dismissal of all the causes of action against CRNA Weeks, as a matter of law; (b) Directing entry of judgment with prejudice in favor of CRNA Weeks and deleting her name from the caption; 4603908 1 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 (c) Pursuant to CPLR § 3212, granting partial summary judgment dismissing any and all causes of action, parties, or theories that ought to be dismissed as a matter of law; and (d) Granting such other and further relief as this Court deems just and proper. INTRODUCTION 3. It is respectfully submitted that summary judgment should be afforded to defendant Jande Weeks CRNA, as there was no negligence on the part of the defendant and plaintiff will be unable to establish a prima facie case against her at trial. 4. Based upon the annexed Expert Affirmation of David Albert, M.D., a physician with many years of relevant experience in the field of anesthesiology, the treatment rendered by Ms. Weeks was at all times within the standard of care and did not proximately cause any injuries claimed by plaintiff. (Annexed hereto as Exhibit “A” is the Affirmation of anesthesiologist, Dr. David Albert). SUPPORTING EXHIBITS 5. The following exhibits are attached in support of defendants’ motion: EXHIBIT A: Expert Affirmation of David Albert, M.D. EXHIBIT B: Summons and Verified Complaint EXHIBIT C: Verified Answer of Jande Weeks, CRNA EXHIBIT D: Bills of Particulars as to the Defendants EXHIBIT E: The relevant medical records received from co-defendant Fifth Avenue Surgery Center EXHIBIT F: Deposition transcript of plaintiff, Barbara Sackaroff EXHIBIT G: Deposition transcript of co-defendant, Dr. Diwan EXHIBIT H: Deposition transcript of co-defendant, Dr. Amigud EXHIBIT I: Deposition transcript of defendant, CRNA Jande Weeks 2 4603908 2 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 EXHIBIT J: Note of Issue PROCEDURAL HISTORY 6. This medical malpractice action was commenced on or about August 10, 2020, by the filing of a Summons and Verified Complaint under Index# 514577/2020 (Exhibit B). Issue was joined as to CRNA Weeks by service of a Verified Answer on September 14, 2020. (Exhibit C). Plaintiff served Verified Bills of Particulars as to the defendants, dated January 27, 2021. (Exhibit D). 7. Briefly, this case involves a then 67-year old female plaintiff who alleges that co- defendant Dr. Igor Amigud and the moving defendant CRNA Jande Weeks negligently administered anesthesia during a right sacroiliac joint surgery that was performed by co- defendant Dr. Sudhir Diwan on January 7, 2020, which resulted in plaintiff “aspirating” gastric/digestive contents during the surgery. Co-defendant, Dr. Igor Amigud was the anesthesiologist for the procedure and he managed the case with CRNA Weeks assisting. As a result of the alleged malpractice by Dr. Amigud and CRNA Weeks, plaintiff alleges that she suffered damage to her vocal cords causing loss of voice and hoarseness, shortness of breath, and pain and suffering. Plaintiff also claims that Dr. Diwan negligently performed the Cornerloc surgery causing an insufficiency fracture to plaintiff’s right sacrum. 8. Throughout the course discovery, depositions were completed as follows: plaintiff, Barbara Sackaroff was deposed on December 14, 2021 (Exhibit F); co-defendant Dr. Sudhur Diwan, M.D., was deposed on February 25, 2022 (Exhibit G); co-defendant Dr. Igor Amigud was deposed on March 28, 2022 (Exhibit H); and defendant Jande Weeks, CRNA was deposed on July 14, 2022 (Exhibit I). 3 4603908 3 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 9. Plaintiff never sought the deposition of any institutional witnesses from Fifth Avenue Surgery Center and have discontinued this entity. 10. On October 18, 2022, plaintiff filed the Note of Issue. (Exhibit J). 11. At the time of this affirmation, discovery has been completed. Accordingly, the instant motion is timely. There has been no prior request for this relief. ALLEGATIONS 12. Plaintiff’s Bill of Particulars allege that CRNA Weeks was negligent on January 7, 2020. Plaintiff alleges that during the performance of an elective surgical procedure involving the right sacroiliac joint, CRNA Weeks failed to: recognize the significance of a past medical history of gastroesophageal reflux, recognize the significance of the patient coughing throughout the Cornerloc procedure, timely and properly position the patient in the prone or side lying position during the Cornerloc procedure, timely and properly position the patient in the supine position during the Cornerloc procedure, place the patient in the supine position during the Cornerloc procedure, place the patient in the side lying position during the procedure, properly and timely suction the patient, properly and timely administer anesthetic medications to decrease the chance of aspiration, properly and timely intubate the patient during the Cornerloc procedure, timely and properly administer H2 blockers, proton pump inhibitors, prokinetics or other medication to decrease the chances of aspiration during the Cornerloc procedure, place the patient’s head higher than her abdomen during the Cornerloc procedure, place patient in the head down tilt position during the procedure, take a careful medical history, perform a careful physical examination, properly and timely coordinate and communicate care and treatment between physicians and other health care professions, keep up to date with changes in medical practice, take all necessary, reasonable and prudent actions to prevent the conditions from which the defendant was aware, knew and/or should have known to cause injury, use reasonable care, have 4 4603908 4 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 the requisite skill or knowledge, properly use alternative or ancillary procedures, properly and timely coordinate care and treatment between physicians and nursing staff and supervise residents interns and staff. It is further alleged that CRNA Weeks subjected the patient to further injury additional medical treatment therapy procedures and medications. (Exhibit D). 13. Plaintiff has also asserted an informed consent claim against CRNA Weeks. More specifically, it is alleges that CRNA Weeks failed to provide appropriate information concerning: the proposed operations, procedures and/or medications, the alternatives to these procedures and the reasonably foreseeable risks. It is alleged that CRNA Weeks failed to explain in words understandable to the patient all the facts that would be explained by a reasonable medical practitioner so that informed consent could be obtained. (Id.) 14. As a result, plaintiff alleges that she suffered an aspiration and related injuries. Plaintiff has also alleged to have suffered a nondisplaced right sacral insufficiency fracture which is unrelated to CRNA Weeks care. (Id.) STATEMENT OF REVELANT FACTS 15. On January 7, 2020, plaintiff presented to co-defendant Dr. Diwan at The Fifth Avenue Surgery Center, LLC for a Cornerloc sacroiliac joint stabilization procedure. (Exhibit E). Co-defendant Dr. Amigud was the anesthesiologist for the procedure and the moving defendant, Jande Weeks, CRNA was the nurse anesthetist for the procedure. (Id. at 34) Prior to the procedure, Dr. Amigud as the attending anesthesiologist reviewed the patient’s medical and surgery history, allergies, and prior experiences with anesthesia, and obtain the patient’s informed consent to the anesthesia. (Id.) CRNA Weeks also spoke to the patient to confirm the patient’s history. Here, the plaintiff advised she had low back and upper buttock pain. (Exhibit E at 34). She had allergies or reactions to iodine, contrast, Keflex and shellfish. (Id.) She was taking rouvastatin, zolpidem, valcyclovir, and furosemide. (Id.) She had a past surgical history 5 4603908 5 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 of a right hip replacement, and left shoulder replacement. (Id.) She had a prior medical history of hypercholesterolemia and anxiety. (Id.) A physical exam performed by Dr. Diwan noted a normal cardiac, pulmonary, HEENT, neurological, GI, musculoskeletal and extremity exam. (Id. at 22). 16. CRNA Weeks and Dr. Amigud both also spoke to the plaintiff pre-operatively. (Exhibit E at 34). It was documented that plaintiff had hypercholesterolemia, anxiety, and a questionable murmur. (Id.) She had a hip surgery, shoulder surgery, C-section, hernia repair and tonsillectomy. (Id.) She was allergic to Cipro, iodine, and Keflex. She taking Aleve, Cymbalta Tylenol and Ambien. (Id.) She had a normal mouth opening and neck range of motion. (Id.) Her cardiac and pulmonary exam was normal and Dr. Amigud and CRNA Weeks both signed the one paged anesthesia record. (Id.) Plaintiff did not report any history of GERD or acid reflux. (Id.) Neither the anesthesia record nor Dr. Diwan’s pre-operative notes indicated that plaintiff ever reported having any reflux or GERD. (Exhibit E). Further, none of the medications are to treat GERD. 17. Plaintiff signed a written consent for the surgery and a consent for the administration of anesthesia. (Id. at 19) The consent for anesthesia form is signed by co- defendant Dr. Amigud. (Id.). Notably, the anesthesia consent lists hoarseness, voice change, and difficulty breathing as risks of the anesthesia. (Id.) CRNA Weeks did not sign or have a consent form as she was not the provider responsible for obtaining consent. (Exhibit I at 39). 18. Plaintiff was positioned in the prone position as was required to perform this procedure. (Exhibit G at 62, Exhibit E at 40). At 2:35 p.m., monitored anesthesia care was started intravenously. (Id. at 34). Dr. Amigud was present in the OR for the entire procedure and was directing the management of the anesthesia. (Exhibit H at 46). Plaintiff initially received Propofol and then a combination of Fentanyl and Versed without incident. (Exhibit E at 6 4603908 6 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 34). At 2:51 p.m. plaintiff was given Zofran which is administered to prevent patients from being nauseated when they awake form the anesthetic medications. (Id. and Exhibit H at 50). 19. The procedure was uneventful until 3:22 p.m., when Flumazenil and Narcan were given to reverse the sedation. (Exhibit E at 34). At 3:27 p.m., it was documented that plaintiff had coffee ground secretions in her nasal cannula. (Id.) The anesthesia was reversed, and after one minute plaintiff was awake and coherent. (Id.) Her oxygen saturation was 95% and her vital signs were stable. (Id.) CRNA Weeks suctioned plaintiff’s mouth and the surgery was continued with plaintiff awake, but under sedation. (Id. and Exhibit I at 76). She continued to be able to speak with the providers and no significant coughing was noted. (Exhibit I at 90, 60). Anesthesia was stopped at 3:35 p.m. (Exhibit E at 34) Plaintiff was transferred to the post- anesthesia care unit (“PACU”) in stable condition at 3:40 p.m. (Id.) Upon arrival she was stable with a blood pressure of 123/62, heart rate of 100 bpm, oxygen of 96% and respiratory rate of 16. (Id.) 20. CNRA Weeks did not treat the plaintiff in the PACU and testified that she left shortly after the procedure but that the plaintiff was stable. (Exhibit I at 84). Plaintiff was monitored by the co-defendants in the PACU and at 5:20 p.m., plaintiff was discharged home. ARGUMENT SUMMARY JUDGMENT STANDARD 21. “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact.” Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). Once a prima facie showing has been made, the burden shifts to the non-moving party who must “produce evidentiary proof in admissible form 7 4603908 7 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 sufficient to establish the existence of material issues of fact which require a trial of the action”. Id. 22. Summary judgment should be granted where a party has tendered evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. See Id.; Winegrad v. New York University Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985). “[W]hen there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.” Andre v. Pomeroy, 35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131, 133 (1974). 23. To properly oppose a motion for summary judgment, a party is obligated to “lay bare his proofs” to sufficiently demonstrate, in evidentiary form, that a triable issue of fact genuinely exists. Lo Breglio v. Marks, 105 A.D.2d 621, 622, 481 N.Y.S.2d 352, 354 (1st Dep’t 1984), aff’d, 65 N.Y.2d 620, 480 N.E.2d 745, 491 N.Y.S.2d 156 (1985). See also Friends of Animals v. Associated Furs Mfgs., 46 N.Y.2d 1065, 1067, 390 N.E.2d 298, 416 N.Y.S.2d 790, 791 (1979); Smith v. Johnson Prod. Co., 95 A.D.2d 675, 676, 463 N.Y.S.2d 464, 466 (1st Dep’t 1983). To defeat a defendant’s motion for summary judgment, it is incumbent upon the plaintiff to establish a prima facie case. See McCraith v. Wehrung, 42 A.D.2d 825, 345 N.Y.S.2d 803 (4th Dep’t 1973). 24. In a medical malpractice action, plaintiff must show, through a medical expert, both a deviation from accepted standards of medical care and that the treatment rendered by the moving defendant was a proximate cause of plaintiff’s injuries. See e.g., Kaffka v. New York Hosp., 228 A.D.2d 332, 644 N.Y.S.2d 243 (1st Dep’t 1996) appeal denied, 89 N.Y.2d 913, 676 N.E.2d 496, 653 N.Y.S.2d 914; Prete v. Rafla-Demetrious, 224 A.D.2d 674, 638 N.Y.S.2d 700 (2d Dep’t 1996); Canter v. Mulnick, 93 A.D.2d 751, 461 N.Y.S.2d 305 (1st Dep’t 1983), aff’d, 8 4603908 8 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 60 N.Y.2d 689, 455 N.E.2d 1257, 468 N.Y.S.2d 462. See also Fridovich v. David, 188 A.D.2d 984, 591 N.Y.S.2d 885 (3d Dep ’t 1992); Ferrara v. South Shore Orthopedic Associates, 178 A.D.2d 364, 577 N.Y.S.2d 813 (1st Dep’t 1991). In the absence of evidence that defendant’s conduct was a proximate cause of plaintiff’s injury, summary judgment must be granted to defendant as a matter of law. Id. “General allegations of medical malpractice, merely conclusory in nature and unsupported by competent evidence tending to establish the essential elements of the claim, are insufficient to defeat a defendant physician’s entitlement to summary judgment.” Holbrook v. United Hosp. Medical Ctr., 248 A.D.2d 358, 669 N.Y.S.2d 631 (2d Dep’t 1998). 25. In the instant matter, CRNA Weeks has demonstrated that there are no material issues of fact or evidence to support the plaintiff’s claims that the care provided by her was not at all times supervised and directed by the attending Dr. Amigud or that the care in any way deviated from the standard of care. It is further submitted that plaintiff also is unable to demonstrate that any care provided by CRNA Weeks was the proximate cause of plaintiff’s injuries. Now, to defeat defendants’ motion for summary judgment, plaintiff must show through a medical expert both a deviation from accepted standards of medical care and that the treatment rendered by CRNA Weeks was the proximate cause of Ms. Sackaroff’s alleged injuries. Plaintiff must also demonstrate that CRNA Weeks care was not supervised/directed by Dr. Amigud. Herein, the plaintiff is unable to establish evidence that there CRNA Weeks acted independently, in a manner that was a deviation from the standard of care and/or that any alleged deviation proximately caused any of the alleged injuries. Accordingly, plaintiff’s Complaint must be dismissed with prejudice as to CRNA Weeks. 9 4603908 9 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 I. JANDE WEEKS, CRNA IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW A. JANDE WEEKS CRNA WAS AT ALL TIMES ACTING UNDER THE SUPERVISION OF DR. IGOR AMIGUD AND CANNOT BE HELD LIABLE 26. It is well settled that “[w]hen supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene.” Bellafiore v. Ricotta, 83 AD3d 632, 633 (2d Dep’t 2011). The extent of this rule is best exemplified by the Appellate Division, Second Department’s decision in Soto v. Andaz, 8 AD3d 470 (2d Dep’t 2004). There, a resident who had participated in a surgery and had actually performed part of the surgery at the attending’s direction, was denied summary judgment by the trial court. In reversing, the Second Department noted that the resident had, indeed, demonstrated entitlement to summary judgment by submitting evidence that he was under the attending physician’s supervision at all times. Id., 8 AD3d at 471. “Although the evidence demonstrated that the appellant played an active role in Soto’s procedure, it did not demonstrate the exercise of independent medical judgment.” Id. 27. The same is true of Crawford v. Sorkin, 41 AD3d 278 (2d Dep’t 2007), where the Second Department concluded that even a resident’s status as “night chief resident” was not enough to impute liability to a resident acting under the supervision of attendings. This was particularly true where the resident’s chart entries “reflect[ed] her intent to discuss repeat labs and other such matters with the attendings.” Id., 41 AD3d at 280. 28. Here, Dr. Amigud performed a prior physical examination, took a history on the plaintiff and obtained her consent for anesthesia. Dr. Amigud was present in the OR for the entirety of the case and followed her in the PACU after the procedure. Dr. Amigud was supervising and directing the anesthesia care at all times and made all final decisions in the case. 10 4603908 10 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 (Exhibit A at ¶17-18). Therefore, CRNA Weeks was at all times acting under the supervision of Dr. Amigud and was not exercising independent medical judgment. As the expert affirmation by Dr. Albert makes clear, the anesthesia care was within the standard of care, therefore, there is no evidence that there were any directions of a supervising doctor (Dr. Amigud) that so greatly deviated from normal medical practice that CRNA Weeks could be held liable for failing to intervene. (Id. at ¶16). 29. Having an active role in the patient’s medical treatment is insufficient to maintain this action against CRNA Weeks. In Soto v. Andaz, 8 AD3d 470 (2d Dep’t 2004) the Court held that although the evidence demonstrated that the appellant played an active role in a patient’s procedure, it did not demonstrate the exercise of independent medical judgment. Here, this case in analogous because while CRNA Weeks was an active participant in the anesthesiology management the care and treatment was at all times supervised by Dr. Amigud who was in the room and made all final decisions regarding plaintiff’s care. 30. Accordingly, CRNA Weeks by virtue of her role in the plaintiff’s care and the above case law, cannot be held liable in this matter. Therefore, summary judgment should be granted as a matter of law. B. CRNA WEEKS IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THE TREATMENT AND CARE RENDERED BY MS. WEEKS AND THE ANESTHESIA TEAM WAS WITHIN THE STANDARD OF CARE AND IT DID NOT PROXIMATELY CAUSE THE PLAINTIFF’S INJURIES 31. As discussed in the Expert Affirmation of David Albert, M.D., an expert in anesthesiology who has also supervised CRNAs, it is his opinion that all of the care and treatment provided to Ms. Sackaroff by CRNA Weeks was within the standard of care and that none of the care and treatment proximately caused plaintiff’s alleged injuries. (Exhibit A at ¶16). Therefore, it is submitted that this motion for summary judgment must be granted. 11 4603908 11 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 i. The anesthesia care and treatment rendered during the January 7, 2020 procedure was within the standard of care 32. Dr. Albert has opined that CRNA Weeks obtained a proper history from the plaintiff. (Exhibit A at ¶18). CRNA Weeks documented that the plaintiff had hypercholesterolemia, anxiety and a heart murmur. CNRA Weeks also discussed her medications, allergies, and surgical history and if plaintive had any anesthesia issues with her prior procedures. Dr. Amigud confirmed she was NPO and reviewed her cardiovascular pathology and current medications. (Exhibit I at 42). Plaintiff failed to report a history of gastroesophageal reflux. This condition is also not documented on any of the procedure notes, despite three different providers having taken her history, and plaintiff did not tell her providers that she had or may have this condition. In fact, plaintiff admitted that she did not recall telling the medical providers about this condition and feared being forthcoming about her medical history. Dr. Albert opined that physicians must rely on patients reported history, as it would not be the standard of care for a provider to obtain and search through a patient’s records for conditions they may be withholding. (Exhibit A at ¶19). Therefore, any claims against CRNA Weeks regarding the taking and appreciating the plaintiff’s history must be dismissed 33. Dr. Albert also opined that CRNA Weeks performed a careful and complete physical examination of the plaintiff, including listening to her heart and lungs and assessing her airway. (Id. at ¶20). Dr. Albert opined that GERD or a predisposition for having a regurgitation/aspiration during surgery would not have been able to be detected on a pre- operative anesthesia examination. (Id.) Therefore, any claims regarding the physical examination in this case should be dismissed. 34. Plaintiff was appropriately positioned throughout the entire procedure and any claims regarding the positioning are not appropriate as to CRNA Weeks. Here, the prone 12 4603908 12 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 positioning of the patient was selected by her surgeon, Dr. Diwan. (Exhibit I at 50). The plaintiff had to be in a specific position for the Cornerloc procedure to be performed to give the surgeon access to the surgical field. Claims regarding CRNA Weeks alleged failure to place the plaintiff’s head higher than her abdomen during the Cornerloc procedure is meritless as Dr. Diwan selected the positioning and there was no ongoing regurgitation or emesis to warrant a change in position during the procedure. Plaintiff also claims that the patient should have been put in the head down tilt position during the procedure. Again, the surgeon selected the position and these claims are inapplicable to CRNA Weeks care. Dr. Albert opined that since plaintiff cleared any secretions, there was no need to move her while she was stable, awake and speaking. To the extent the plaintiff is claiming that the patient should have been turned to supine or side lying, this claim is without merit. When the secretions were observed the patient was reversed immediately and awoken. She remained stable and was able to speak with no signs or symptoms of an aspiration and there was no reason to move the patient. As she was stable and the procedure was nearly complete there was no indication to move her to a different position. Therefore, all claims regarding the positioning of the plaintiff in this case are meritless and should be dismissed. 35. Expert, Dr. Albert has opined that the claim regarding failure to administer medications (including H2 blockers, proton pump inhibitors, and prokinectics) is similarly without merit. (Exhibit A at ¶22). An aspiration is a risk of any anesthesia and there is no specific medication that prevents this from occurring in all cases. Further, Dr. Albert opined that based upon the history given there was no need for additional medications. (Id.) 36. Next, any claims regarding the alleged failure to provide suctioning must also be dismissed. This patient did not require suctioning as any secretion had drained via gravity. (Id. at ¶23). However CRNA Weeks performed suctioning on the patient and nothing came out. 13 4603908 13 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/16/2022 (Exhibit I at 77). Therefore, while Dr. Albert opined that suctioning was not required, CRNA Weeks testified she performed suctioning and nothing was present. (Exhibit I at 76; Exhibit A at ¶23). Therefore, this claim is meritless and should be dismissed. 37. Dr. Albert makes clear in the expert affirmation that this patient never required intubation and that she was appropriately managed on MAC sedation and then light sedation. (Exhibit A at ¶24). Plaintiff alleges that CNRA Weeks failed to properly and timely intubate the patient during the Cornerloc procedure. Intubation is not a procedure without risk including, but not limited to aspiration and vocal cord damage. Patients cannot be intubated in the prone position. Therefore, any decision to intubate would have required turning the patient supine and potentially risking an infection or other complication of the surgical procedure. Dr. Albert opined that there was no basis to intubate this patient. (Id.) At the time of the "coffee grounds event" the patient was stable by all indicators, and she was not actively bleeding or vomiting. Therefore, the risk to re-position the patient and induce general anesthesia/intubate far outweighed the risk to wake the patient and proceed under light sedation in the same position. There was never any indication to support intubation and to have done so would have increased plaintiff’s risks of complications. Therefore, these claims are without merit and should be dismissed. 38. There is similarly no merit to plaintiff’s claim that CRNA Weeks failed to “recognize the significance of the patient coughing throughout the Cornerloc procedure.” First, there is no evidence that the patient was coughing throughout the entire procedure. The evidence from all the providers in the room was that plaintiff had very little to no coughing despite being awoken during the procedure. Therefore, this claim should be dismissed. 39. There are general claims regarding the failure to communicate between the health care professionals and regarding supervision. These claims are without merit. CRNA Weeks 14 4603908 14 of 19 FILED: KINGS COUNTY CLERK 12/16/2022 03:56 PM