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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
___________________________________________
Notice of Medical
PAMELA L. PARKER, as the Administrator of the Malpractice Action
Estate of James R. Parker
Plaintiff, Index No. 2020-5510
vs.
MELISSA D. WILLENBORG, M.D.; FINGER
LAKES ORTHOPEDIC SURGERY, P.C.;
WESTLEY KIPPHUT, M.D.;
ASSOCIATED ANESTHESIOLOGISTS OF THE
FINGER LAKES LLP;
ARNOT OGDEN MEDICAL CENTER; and
ARNOT HEALTH, INC.,
Defendants.
___________________________________________
PLEASE TAKE NOTICE, that the above action for medical malpractice was commenced
by service of a Summons & Complaint upon MELISSA D. WILLENBORG, M.D.; FINGER
LAKES ORTHOPEDIC SURGERY, P.C.; WESTLEY KIPPHUT, M.D.; ASSOCIATED
ANESTHESIOLOGISTS OF THE FINGER LAKES LLP; ARNOT OGDEN MEDICAL
CENTER; and ARNOT HEALTH, INC., on August 27, 2020, that issue was joined on
September 28, 2020 and October 23, 2020 and that the action has not been dismissed, settled or
otherwise terminated.
1. Full name, Address and Age of each Plaintiff:
JAMES PARKER Age: Deceased
872 Harris Hill Road, Elmira, NY
PAMELA PARKER Age: 56
792 Veterans Hill Road, Horseheads, NY
2. Upon information and belief, the full name and address of each Defendant is as
follows:
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Melissa Willenborg, M.D.
Arnot Ogden Medical Center
600 Roe Avenue
Elmira, NY 14564
Finger Lakes Orthopedic Surgery, P.C.
300 Hoffman Street
Elmira, NY 14905
Westley Kipphut, M.D.
Arnot Ogden Medical Center
600 Roe Avenue
Elmira, NY 14564
Associated Anesthesiologists of the Finger Lakes, L.L.P.
Arnot Ogden Medical Center
600 Roe Avenue
Elmira, NY 14564
Arnot Ogden Medical Center
600 Roe Avenue
Elmira, NY 14564
Arnot Health
St. Joseph’s Campus
Elmira, NY 14564
3. State alleged medical specialty of each individual defendant, if known:
Melissa Willenborg, M.D. – Orthopedics/Surgeon
Finger Lakes Orthopedic Surgery, P.C. – Orthopedics
Westley Kipphut, M.D. – Anesthesiologist
Associated Anesthesiologists of the Finger Lakes, L.L.P. – Anesthesiology
Arnot Ogden Medical Center – Medical Center
Arnot Health – Medical Center
4. This is a claim for medical malpractice.
5. The claim arose on 12/21/18 at Arnot Ogden Medical Center in Elmira, New
York.
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6. The substance of the claim herein involved the negligence and medical malpractice
of defendants, their employees, staff members and/or agents by being careless and
negligent and committed acts and/or omissions and/or deviated and/or departed
from acceptable customs, standards and practices with regard to the manner in
which care, and treatment was provided to plaintiff’s decedent between 12/19/18
and 12/21/18 and at all relevant times herein and are as follows: Failing to prevent
and ultimately treat plaintiff’s decedent’s thromboembolic phenomenon, including
but not limited to pulmonary embolism(s) and ultimately death; Failing to timely
treat plaintiff’s decedent’s thromboembolic phenomenon, including but not limited
to pulmonary embolism(s) and ultimately death; Failing to recognize and/or
appreciate the signs and symptoms of plaintiff decedent’s pulmonary embolism
(PE) in the operating room prior to starting his elective surgery; Failing to rule out
DVT and/or a pulmonary embolism (PE) prior to starting an elective surgery;
Negligently starting/continuing an elective left ankle ORIF surgery subsequent to
the plaintiff’s decedent suffering an unexplained abrupt protracted oxygen
desaturation that lasted over a period of 10-15 minutes; Failing to recognize and/or
appreciate the significance of the unexplained abrupt protracted oxygen
desaturation that lasted over a period of 10-15 minutes in the operating room prior
to the start of the elective surgery; Failing to recognize and/or appreciate the
significance of a pre-operative abrupt protracted oxygen desaturation despite 100%
oxygen and FiO2 with concurrent fall in EtCO2 that lasted approximately 10-15
minutes while plaintiff’s decedent was in the operating room, despite confirming
the proper placement of the ETT on DL, glidescope and B/L breath sounds present;
Failing to recognize and/or appreciate that an abrupt protracted oxygen desaturation
is more characteristic of a PE than an ETT misplacement; Failing to recognize
and/or appreciate that ETT misplacement once corrected results in a very
short/quick rebound of oxygenation and a protracted oxygen desaturation is more
characteristic of a PE; Failing to recognize and/or appreciate the plaintiff decedent’s
erratic blood pressure and oxygen desaturation during the elective surgery as
plaintiff decedent’s blood pressure was expected to be lower while under
anesthesia, but at a constant and consistent lower reading throughout the surgery;
Failing to abort the elective surgery to prevent additional blood clots/emboli
following the first episode of abrupt protracted oxygen desaturation; Failing to
recognize and/or appreciate that plaintiff decedent’s EtC02 being expired with each
breath was about half (21-27 mmHg) of what it should have been (35-40 mmHg)
between 3:20 pm and 3:45 pm, which is indicative of a PE; Failing to recognize
and/or appreciate that when plaintiff’s decedent was “ultimately paralyzed to ease
ability for oxygenation” and “positioned with back up and large increase in tidal
volume on manual ventilation” to improve his oxygenation following his first
episode of abrupt protracted oxygen desaturation, said actions could improve
oxygenation even in the presence of a PE, which had not been ruled out, thus
creating a false sense of security with improved oxygenation; Failing to abort the
elective surgery prior to starting in order to perform a workup to rule out and/or
treat plaintiff’s decedent for DVT/PE; Failing to immediately abort the elective
surgery at the time of the first abrupt protracted oxygen desaturation to perform a
CT angiogram (CTA) for pulmonary emboli, Ultrasound for a clot/emboli in the
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lower extremities and/or a Transesophageal Echocardiogram (TEE) to rule out a
PE; Failing to abort the elective surgery at the time of the first abrupt protracted
oxygen desaturation to immediately administer a therapeutic dose of IV Heparin to
treat the potential PE and confirm or rule out the PE to determine whether to begin
the administration of tPA. PRE-SURGERY HOSPITALIZATION: Failing to
properly perform plaintiff’s decedent’s Adult Venous Thromboembolism (VTE)
Prophylaxis Order and designing him as a “low risk” with a risk score of “1”;
Failing to recognize and/or appreciate that plaintiff’s decedent was a high-risk
patient for a DVT in the lower extremities as he was obese, immobile, and suffered
trauma (a fracture) to the lower extremity; Failing to elevate plaintiff decedent’s
left leg/ankle during his entire admission in accordance with the Admission Orders;
Failing to utilize sequential compression devices on plaintiff decedent during his
entire admission in accordance with the Admission Orders; Failing to perform
“extremity elevation. Continuous. Leg 3 heel free” of the left leg in accordance
with the Admission Orders; Failing to Order DVT prophylaxis such as sequential
compression devices (SCDs); Failing to recognize and/or appreciate plaintiff
decedent’s complaints that his left leg felt: “like it weighed 1,000 pounds: and hurt
much worse as the hospital admission continued; Failing to recognize and/or
appreciate that plaintiff decedent’s leg pain increased and/or did not improve during
the two days he was admitted despite being non-weightbearing, increased pain
medication dosing amount, increased frequency of pain medication administration,
and changing the type of pain medication administered; Failing to consistently
administer anticoagulants; Failing to rule out a DVT prior to performing the
elective surgery through testing such as a doppler ultrasound; Negligently
documenting in plaintiff’s decedent’s Discharge Summary that an Order was placed
for DVT prophylaxis consisting of sequential compression devices when no such
Order was placed; Defendants’ Lynn B. Lloyd RN negligently cancelling Dr, Shilpa
Akula’s Order for ambulation 4 times a day scheduled for 9 am, 1 pm, 5 pm and 9
pm; Failing to follow defendants’ own rules, regulations, and protocols.
7. Annexed hereto is a copy of the Summons and Complaint with attached Certificate
of Merit, defendants’ Answers and Plaintiff’s Bill of Particulars.
8. Annexed hereto is proof that authorizations to obtain medical, dental and hospital
records have been served upon the defendants in this action.
9. A demand for arbitration has not been made.
10. The information required by CPLR 3101(d)(1)(i) is not available at this time.
Plaintiff expects to call expert witness(es), but none have been retained to date.
Once they are retained, the required expert disclosure will be made.
11. State names, addresses and telephone numbers of counsel for all parties:
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Counsel for Plaintiff: Counsel for Defendants:
Joseph A. Rossi, Jr., Esq. Tomas J. Callocchia, Esq.
KAMMHOLZ ROSSI, PLLC RICOTTA, MATTREY, CALLOCCHIA,
1501 Pittsford-Victor Road, Suite 202 MARKEL & CASSERT
Victor, New York 14564 Attorney for Defendants
Tel.: (585) 678-4500 Melissa D. Willenborg, M.D.,
Finger Lakes Orthopedic Surgery,
P.C.,
Arnot Ogden Medical Center, and
Arnot Health, Inc.
496 Main Street
Buffalo, New York 14202
Phone: (716) 854-6424
Aaron M. DePaolo, Esq.
O’CONNOR, O’CONNOR
BRESEE & FIRST, P.C.
Attorney for Defendants
Westley Kipphut, M.D., and
Associated Anesthesiologists
of the Finger Lakes LLP
20 Corporate Woods Blvd.
Albany, New York 12211
Phone: (518) 465-0400
Dated: November 20, 2020 KAMMHOLZ ROSSI, PLLC
____________________________
By: Joseph A Rossi, Jr., Esq.
Attorneys for Plaintiff
1501 Pittsford-Victor Road, Suite 202
Victor, New York 14564
(585) 678-4500
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CC: RICOTTA, MATTREY, CALLOCCHIA, MARKEL & CASSERT
Tomas J. Callocchia, Esq.
Attorney for Defendants
Melissa D. Willenborg, M.D.,
Finger Lakes Orthopedic Surgery, P.C.,
Arnot Ogden Medical Center, and
Arnot Health, Inc.
496 Main Street
Buffalo, New York 14202
Phone: (716) 854-6424
CC: O’CONNOR, O’CONNOR BRESEE & FIRST, P.C.
Aaron M. DePaolo, Esq.
Attorney for Defendants
Westley Kipphut, M.D., and
Associated Anesthesiologists
of the Finger Lakes LLP
20 Corporate Woods Blvd.
Albany, New York 12211
Phone: (518) 465-0400
E-mail: depaolo@oobf.com
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MELISSA D. WILLENBORG, M.D.
c/o Finger Lakes Orthopedic Surgery, P.C.
300 Hoffman Street
Elmira, New York 14905
FINGER LAKES ORTHOPEDIC SURGERY, P.C.
300 Hoffman Street
Elmira, New York 14905
WESTLEY KIPPHUT, M.D.
600 Roe Avenue
Elmira, New York 14905
ASSOCIATED ANESTHESIOLOGISTS OF THE FINGER LAKES, LLP
c/o Kevin Du Luca, MD
600 Roe Avenue
Elmira, New York 14905
ARNOT OGDEN MEDICAL CENTER
600 Roe Avenue
Elmira, New York 14905
ARNOT HEALTH, INC.
600 Roe Avenue
Elmira, New York 14905
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5. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
and is a medical doctor engaged in the practice of orthopedic surgery in Chemung
County.
6. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg held
herself out as a skilled and competent physician, surgeon and specialist in orthopedic
surgery capable of properly and skillfully providing surgery, treatment and after care
for persons in need of such services.
7. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
and is engaged in the practice of medicine at defendant Arnot Ogden Medical Center
in Elmira, New York.
8. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
and is engaged in the practice of medicine at Finger Lakes Orthopedic Surgery, P.C.,
300 Hoffman Street in Elmira, County of Chemung, State of New York.
9. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
and is engaged in the practice of medicine on behalf of defendant Arnot Ogden
Medical Center in Elmira, New York.
10. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
and is engaged in the practice of medicine on behalf of defendant Arnot Health Inc. in
Elmira, New York.
11. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
and is engaged in the practice of medicine on behalf of defendant Finger Lakes
Orthopedic Surgery, P.C., 300 Hoffman Street in Elmira, New York.
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12. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
acting as an agent, implied agent, servant, and/or employee of defendant Arnot Ogden
Medical Center at the time when she performed surgeries and provided care and
treatment to plaintiff’s decedent.
13. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
acting as an agent, implied agent, servant, and/or employee of defendant Arnot Health
Inc. at the time when she performed surgeries and provided care and treatment to
plaintiff’s decedent.
14. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was
acting as an agent, implied agent, servant, and/or employee of defendant defendant
Finger Lakes Orthopedic Surgery, P.C. at the time when she performed surgeries and
provided care and treatment to plaintiff’s decedent.
15. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg
provided training, supervision and direction to surgical residents and fellows
participating in the care of her patients and was responsible for the care provided to
her patients by residents in training.
16. Defendant Finger Lakes Orthopedic Surgery, P.C. (hereinafter referred to as Finger
Lakes Orthopedic Surgery) is a professional corporation organized and existing under
the laws of the State of New York with an office at 300 Hoffman Street, Elmira,
County of Chemung, State of New York.
17. Upon information and belief, at all times hereinafter mentioned, Finger Lakes
Orthopedic Surgery also does business as Orthopedic Surgery Hoffman.
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18. Finger Lakes Orthopedic Surgery through its agents, servants, members, employees,
physicians, physician assistants, nurses, staff and/or medical personnel or other
individuals acting under its professional corporation, agency, supervision and/or
control, including, but not limited to the named co-Defendant held themselves out as
duly qualified to render proper and adequate medical care, treatment, and services,
including surgery, to members of the general public, including its patient, plaintiff’s
decedent James R. Parker.
19. Finger Lakes Orthopedic Surgery as part of the operation of its practice hired,
engaged, included as members of the professional corporation and/or otherwise took
responsibility for the actions of healthcare professionals, staff and personnel,
including, but not limited to physicians, physician assistants, nurses, residents,
interns, students, technicians and/or other healthcare personnel, including, but not
limited to the named co-Defendant and had a duty to manage, control and otherwise
supervise their work during the care and treatment of persons such as plaintiff’s
decedent James R. Parker.
20. That Finger Lakes Orthopedic Surgery by and through its agents, members, servants,
employees, medical personnel, staff and/or other individuals acting under the control
and/or supervision of said practice, including, but not limited to co-Defendant named
herein, among others, undertook to and did render medical care, treatment and
services to James R. Parker (deceased) between December 19, 2018 through
December 21, 2018 and, most specifically, performed surgery at Arnot Ogden
Medical Center on or about December 21, 2018.
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21. That Finger Lakes Orthopedic Surgery is vicariously liable for the negligence,
careless acts and other acts and omissions falling below relevant standards of care of
its members, employees, agents and representatives including, but not limited to the
named co-Defendant herein among others.
22. Upon information and belief, at all times hereinafter mentioned, defendant
WESTLEY KIPPHUT, MD (hereinafter referred to as “Dr. Kipphut”), was and is a
physician licensed to practice medicine in New York State.
23. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and
is a medical doctor engaged in the practice of anesthesiology in Chemung County,
New York.
24. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut held
himself out as a skilled and competent physician and specialist in anesthesia capable
of properly and skillfully providing anesthesia, treatment and after care for persons in
need of such services.
25. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and
is engaged in the practice of medicine at defendant Arnot Ogden Medical Center in
Elmira, New York.
26. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and
is engaged in the practice of medicine at defendant Associated Anesthesiologists of
the Finger Lakes LLP, 600 Roe Avenue in Elmira, New York.
27. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and
is engaged in the practice of medicine on behalf of defendant Arnot Ogden Medical
Center in Elmira, New York.
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28. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and
is engaged in the practice of medicine on behalf of defendant Arnot Health Inc. in
Elmira, New York.
29. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and
is engaged in the practice of medicine on behalf of defendant Associated
Anesthesiologists of the Finger Lakes LLP, 600 Roe Avenue in Elmira, New York.
30. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was
acting as an agent, implied agent, servant, and/or employee of defendant Arnot Ogden
Medical Center at the time when he administered anesthesia and provided care and
treatment to plaintiff’s decedent.
31. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was
acting as an agent, implied agent, servant, and/or employee of defendant Arnot Health
Inc. at the time when he administered anesthesia and provided care and treatment to
plaintiff’s decedent.
32. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was
acting as an agent, implied agent, servant, and/or employee of defendant Associated
Anesthesiologists of the Finger Lakes LLP, 600 Roe Avenue in Elmira, New York at
the time when he administered anesthesia and provided care and treatment to
plaintiff’s decedent.
33. On December 21, 2018, Dr. Kipphut was not board certified in anesthesiology.
34. Defendant, Associated Anesthesiologists Of The Finger Lakes LLP (hereinafter
referred to as Associated Anesthesiologists of the Finger Lakes) is a domestic limited
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liability partnership organized and existing under the laws of the State of New York
with an office at 600 Roe Avenue, Elmira, County of Chemung, State of New York.
35. Defendant Associated Anesthesiologists of the Finger Lakes through its agents,
servants, partners, members, employees, physicians, physician assistants, nurses, staff
and/or medical personnel or other individuals acting under its limited liability
partnership, agency, supervision and/or control, including, but not limited to the
named co-Defendant held themselves out as duly qualified to render proper and
adequate medical care, treatment, and services, including anesthesia, to members of
the general public, including its patient, plaintiff’s decedent James R. Parker.
36. Associated Anesthesiologists of the Finger Lakes as part of the operation of its
practice hired, engaged, included as members of the professional corporation and/or
otherwise took responsibility for the actions of healthcare professionals, staff and
personnel, including, but not limited to physicians, physician assistants, nurses,
residents, interns, students, technicians and/or other healthcare personnel, including,
but not limited to the named co-Defendant and had a duty to manage, control and
otherwise supervise their work during the care and treatment of persons such as
plaintiff’s decedent James R. Parker.
37. Dr. Kipphut was a physician member, partner, employee or agent of Associated
Anesthesiologists of the Finger Lakes and was at all times acting within the scope of
his membership, employment and/or agency.
38. That Associated Anesthesiologists of the Finger Lakes by and through its agents,
members, partners, servants, employees, medical personnel, staff and/or other
individuals acting under the control and/or supervision of said practice, including, but
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not limited to co-Defendant named herein, among others, undertook to and did render
medical care, treatment and services to plaintiff’s decedent James R. Parker on
December 21, 2018 at Arnot Ogden Medical Center.
39. That Associated Anesthesiologists of the Finger Lakes is vicariously liable for the
negligence, careless acts and other acts and omissions falling below relevant
standards of care of its members, employees, agents and representatives including,
but not limited to the named co-Defendant herein among others.
40. That, upon information and belief, at all times herein mentioned, Defendant Arnot
Ogden Medical Center (hereinafter referred to as AOMC) was and still is a domestic
not-for-profit corporation duly organized and existing under and by virtue of the laws
of the State of New York, with corporate offices located in New York, and with a
hospital for the care and treatment of the general public located at 600 Roe Avenue,
Elmira, County of Chemung, State of New York.
41. At all times herein mentioned, AOMC owned, operated, managed, maintained and
controlled, among other facilities, a hospital for the care of sick and injured persons
located at 600 Roe Avenue, Elmira, County of Chemung, State of New York.
42. That, upon information and belief, and at all times herein mentioned, as part of the
operation of AOMC, said Defendant hired, engaged, granted privileges to, and/or
otherwise took responsibility for the actions of healthcare professions, staff and
personnel, including, but not limited to, physicians, physician assistants, nurses,
nurse’s aides, residents, interns, students, technicians and/or other healthcare
personnel, including, but not limited to the co-Defendants named herein, and thus ,
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had a duty to manage control and otherwise supervise their work during the care and
treatment of persons such as plaintiff’s decedent James R. Parker.
43. That Defendant, AOMC by and through its agents, servants, employees, medical
personnel staff and/or other individuals acting under the control and/or supervision of
said hospital, including, but not limited to co-Defendants named herein, undertook to
and did render medical care, treatment and services to plaintiff’s decedent James R.
Parker at the aforementioned location, specifically one or about December 19, 2018
through December 21, 2018.
44. That upon information and belief, and at all times herein mentioned, the agents,
servants, employees, physicians, physician assistants, nurses, nurse assistants, staff
and/or other individuals acting within the supervision and control of defendant
AOMC including, but not limited to co-Defendants were acting within the scope of
their employment, agency, or authority of AOMC, in rendering medical care,
treatment, advice and services to plaintiff’s decedent James R. Parker.
45. That upon information and belief, at all times herein mentioned, Defendant Arnot
Health, Inc. was and still is a domestic corporation duly organized and existing under
and by virtue of the laws of the State of New York, with corporate offices located at
600 Roe Avenue, Elmira, County of Chemung, State of New York and functions to
operate a health system providing a wide range of inpatient, outpatient and physical
services in the Southern tier of New York as well as in the Northern tier of
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FILED: CHEMUNG COUNTY CLERK 11/20/2020 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/20/2020 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE ___________________________________________ Notice of Medical PAMELA L. PARKER, as the Administrator of the Malpractice Action Estate of James R. Parker Plaintiff, Index No. 2020-5510 vs. MELISSA D. WILLENBORG, M.D.; FINGER LAKES ORTHOPEDIC SURGERY, P.C.; WESTLEY KIPPHUT, M.D.; ASSOCIATED ANESTHESIOLOGISTS OF THE FINGER LAKES LLP; ARNOT OGDEN MEDICAL CENTER; and ARNOT HEALTH, INC., Defendants. ___________________________________________ PLEASE TAKE NOTICE, that the above action for medical malpractice was commenced by service of a Summons & Complaint upon MELISSA D. WILLENBORG, M.D.; FINGER LAKES ORTHOPEDIC SURGERY, P.C.; WESTLEY KIPPHUT, M.D.; ASSOCIATED ANESTHESIOLOGISTS OF THE FINGER LAKES LLP; ARNOT OGDEN MEDICAL CENTER; and ARNOT HEALTH, INC., on August 27, 2020, that issue was joined on September 28, 2020 and October 23, 2020 and that the action has not been dismissed, settled or otherwise terminated. 1. Full name, Address and Age of each Plaintiff: JAMES PARKER Age: Deceased 872 Harris Hill Road, Elmira, NY PAMELA PARKER Age: 56 792 Veterans Hill Road, Horseheads, NY 2. Upon information and belief, the full name and address of each Defendant is as follows: 1 1 of 86 FILED: CHEMUNG COUNTY CLERK 11/20/2020 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/20/2020 Melissa Willenborg, M.D. Arnot Ogden Medical Center 600 Roe Avenue Elmira, NY 14564 Finger Lakes Orthopedic Surgery, P.C. 300 Hoffman Street Elmira, NY 14905 Westley Kipphut, M.D. Arnot Ogden Medical Center 600 Roe Avenue Elmira, NY 14564 Associated Anesthesiologists of the Finger Lakes, L.L.P. Arnot Ogden Medical Center 600 Roe Avenue Elmira, NY 14564 Arnot Ogden Medical Center 600 Roe Avenue Elmira, NY 14564 Arnot Health St. Joseph’s Campus Elmira, NY 14564 3. State alleged medical specialty of each individual defendant, if known: Melissa Willenborg, M.D. – Orthopedics/Surgeon Finger Lakes Orthopedic Surgery, P.C. – Orthopedics Westley Kipphut, M.D. – Anesthesiologist Associated Anesthesiologists of the Finger Lakes, L.L.P. – Anesthesiology Arnot Ogden Medical Center – Medical Center Arnot Health – Medical Center 4. This is a claim for medical malpractice. 5. The claim arose on 12/21/18 at Arnot Ogden Medical Center in Elmira, New York. 2 2 of 86 FILED: CHEMUNG COUNTY CLERK 11/20/2020 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/20/2020 6. The substance of the claim herein involved the negligence and medical malpractice of defendants, their employees, staff members and/or agents by being careless and negligent and committed acts and/or omissions and/or deviated and/or departed from acceptable customs, standards and practices with regard to the manner in which care, and treatment was provided to plaintiff’s decedent between 12/19/18 and 12/21/18 and at all relevant times herein and are as follows: Failing to prevent and ultimately treat plaintiff’s decedent’s thromboembolic phenomenon, including but not limited to pulmonary embolism(s) and ultimately death; Failing to timely treat plaintiff’s decedent’s thromboembolic phenomenon, including but not limited to pulmonary embolism(s) and ultimately death; Failing to recognize and/or appreciate the signs and symptoms of plaintiff decedent’s pulmonary embolism (PE) in the operating room prior to starting his elective surgery; Failing to rule out DVT and/or a pulmonary embolism (PE) prior to starting an elective surgery; Negligently starting/continuing an elective left ankle ORIF surgery subsequent to the plaintiff’s decedent suffering an unexplained abrupt protracted oxygen desaturation that lasted over a period of 10-15 minutes; Failing to recognize and/or appreciate the significance of the unexplained abrupt protracted oxygen desaturation that lasted over a period of 10-15 minutes in the operating room prior to the start of the elective surgery; Failing to recognize and/or appreciate the significance of a pre-operative abrupt protracted oxygen desaturation despite 100% oxygen and FiO2 with concurrent fall in EtCO2 that lasted approximately 10-15 minutes while plaintiff’s decedent was in the operating room, despite confirming the proper placement of the ETT on DL, glidescope and B/L breath sounds present; Failing to recognize and/or appreciate that an abrupt protracted oxygen desaturation is more characteristic of a PE than an ETT misplacement; Failing to recognize and/or appreciate that ETT misplacement once corrected results in a very short/quick rebound of oxygenation and a protracted oxygen desaturation is more characteristic of a PE; Failing to recognize and/or appreciate the plaintiff decedent’s erratic blood pressure and oxygen desaturation during the elective surgery as plaintiff decedent’s blood pressure was expected to be lower while under anesthesia, but at a constant and consistent lower reading throughout the surgery; Failing to abort the elective surgery to prevent additional blood clots/emboli following the first episode of abrupt protracted oxygen desaturation; Failing to recognize and/or appreciate that plaintiff decedent’s EtC02 being expired with each breath was about half (21-27 mmHg) of what it should have been (35-40 mmHg) between 3:20 pm and 3:45 pm, which is indicative of a PE; Failing to recognize and/or appreciate that when plaintiff’s decedent was “ultimately paralyzed to ease ability for oxygenation” and “positioned with back up and large increase in tidal volume on manual ventilation” to improve his oxygenation following his first episode of abrupt protracted oxygen desaturation, said actions could improve oxygenation even in the presence of a PE, which had not been ruled out, thus creating a false sense of security with improved oxygenation; Failing to abort the elective surgery prior to starting in order to perform a workup to rule out and/or treat plaintiff’s decedent for DVT/PE; Failing to immediately abort the elective surgery at the time of the first abrupt protracted oxygen desaturation to perform a CT angiogram (CTA) for pulmonary emboli, Ultrasound for a clot/emboli in the 3 3 of 86 FILED: CHEMUNG COUNTY CLERK 11/20/2020 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/20/2020 lower extremities and/or a Transesophageal Echocardiogram (TEE) to rule out a PE; Failing to abort the elective surgery at the time of the first abrupt protracted oxygen desaturation to immediately administer a therapeutic dose of IV Heparin to treat the potential PE and confirm or rule out the PE to determine whether to begin the administration of tPA. PRE-SURGERY HOSPITALIZATION: Failing to properly perform plaintiff’s decedent’s Adult Venous Thromboembolism (VTE) Prophylaxis Order and designing him as a “low risk” with a risk score of “1”; Failing to recognize and/or appreciate that plaintiff’s decedent was a high-risk patient for a DVT in the lower extremities as he was obese, immobile, and suffered trauma (a fracture) to the lower extremity; Failing to elevate plaintiff decedent’s left leg/ankle during his entire admission in accordance with the Admission Orders; Failing to utilize sequential compression devices on plaintiff decedent during his entire admission in accordance with the Admission Orders; Failing to perform “extremity elevation. Continuous. Leg 3 heel free” of the left leg in accordance with the Admission Orders; Failing to Order DVT prophylaxis such as sequential compression devices (SCDs); Failing to recognize and/or appreciate plaintiff decedent’s complaints that his left leg felt: “like it weighed 1,000 pounds: and hurt much worse as the hospital admission continued; Failing to recognize and/or appreciate that plaintiff decedent’s leg pain increased and/or did not improve during the two days he was admitted despite being non-weightbearing, increased pain medication dosing amount, increased frequency of pain medication administration, and changing the type of pain medication administered; Failing to consistently administer anticoagulants; Failing to rule out a DVT prior to performing the elective surgery through testing such as a doppler ultrasound; Negligently documenting in plaintiff’s decedent’s Discharge Summary that an Order was placed for DVT prophylaxis consisting of sequential compression devices when no such Order was placed; Defendants’ Lynn B. Lloyd RN negligently cancelling Dr, Shilpa Akula’s Order for ambulation 4 times a day scheduled for 9 am, 1 pm, 5 pm and 9 pm; Failing to follow defendants’ own rules, regulations, and protocols. 7. Annexed hereto is a copy of the Summons and Complaint with attached Certificate of Merit, defendants’ Answers and Plaintiff’s Bill of Particulars. 8. Annexed hereto is proof that authorizations to obtain medical, dental and hospital records have been served upon the defendants in this action. 9. A demand for arbitration has not been made. 10. The information required by CPLR 3101(d)(1)(i) is not available at this time. Plaintiff expects to call expert witness(es), but none have been retained to date. Once they are retained, the required expert disclosure will be made. 11. State names, addresses and telephone numbers of counsel for all parties: 4 4 of 86 FILED: CHEMUNG COUNTY CLERK 11/20/2020 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/20/2020 Counsel for Plaintiff: Counsel for Defendants: Joseph A. Rossi, Jr., Esq. Tomas J. Callocchia, Esq. KAMMHOLZ ROSSI, PLLC RICOTTA, MATTREY, CALLOCCHIA, 1501 Pittsford-Victor Road, Suite 202 MARKEL & CASSERT Victor, New York 14564 Attorney for Defendants Tel.: (585) 678-4500 Melissa D. Willenborg, M.D., Finger Lakes Orthopedic Surgery, P.C., Arnot Ogden Medical Center, and Arnot Health, Inc. 496 Main Street Buffalo, New York 14202 Phone: (716) 854-6424 Aaron M. DePaolo, Esq. O’CONNOR, O’CONNOR BRESEE & FIRST, P.C. Attorney for Defendants Westley Kipphut, M.D., and Associated Anesthesiologists of the Finger Lakes LLP 20 Corporate Woods Blvd. Albany, New York 12211 Phone: (518) 465-0400 Dated: November 20, 2020 KAMMHOLZ ROSSI, PLLC ____________________________ By: Joseph A Rossi, Jr., Esq. Attorneys for Plaintiff 1501 Pittsford-Victor Road, Suite 202 Victor, New York 14564 (585) 678-4500 5 5 of 86 FILED: CHEMUNG COUNTY CLERK 11/20/2020 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/20/2020 CC: RICOTTA, MATTREY, CALLOCCHIA, MARKEL & CASSERT Tomas J. Callocchia, Esq. Attorney for Defendants Melissa D. Willenborg, M.D., Finger Lakes Orthopedic Surgery, P.C., Arnot Ogden Medical Center, and Arnot Health, Inc. 496 Main Street Buffalo, New York 14202 Phone: (716) 854-6424 CC: O’CONNOR, O’CONNOR BRESEE & FIRST, P.C. Aaron M. DePaolo, Esq. Attorney for Defendants Westley Kipphut, M.D., and Associated Anesthesiologists of the Finger Lakes LLP 20 Corporate Woods Blvd. Albany, New York 12211 Phone: (518) 465-0400 E-mail: depaolo@oobf.com 6 6 of 86 FILED: CHEMUNG COUNTY CLERK 11/20/2020 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/20/2020 7 of 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 MELISSA D. WILLENBORG, M.D. c/o Finger Lakes Orthopedic Surgery, P.C. 300 Hoffman Street Elmira, New York 14905 FINGER LAKES ORTHOPEDIC SURGERY, P.C. 300 Hoffman Street Elmira, New York 14905 WESTLEY KIPPHUT, M.D. 600 Roe Avenue Elmira, New York 14905 ASSOCIATED ANESTHESIOLOGISTS OF THE FINGER LAKES, LLP c/o Kevin Du Luca, MD 600 Roe Avenue Elmira, New York 14905 ARNOT OGDEN MEDICAL CENTER 600 Roe Avenue Elmira, New York 14905 ARNOT HEALTH, INC. 600 Roe Avenue Elmira, New York 14905 2 8 of 26 86 FILED: CHEMUNG COUNTY CLERK 11/20/2020 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/20/2020 9 of 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 5. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was and is a medical doctor engaged in the practice of orthopedic surgery in Chemung County. 6. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg held herself out as a skilled and competent physician, surgeon and specialist in orthopedic surgery capable of properly and skillfully providing surgery, treatment and after care for persons in need of such services. 7. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was and is engaged in the practice of medicine at defendant Arnot Ogden Medical Center in Elmira, New York. 8. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was and is engaged in the practice of medicine at Finger Lakes Orthopedic Surgery, P.C., 300 Hoffman Street in Elmira, County of Chemung, State of New York. 9. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was and is engaged in the practice of medicine on behalf of defendant Arnot Ogden Medical Center in Elmira, New York. 10. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was and is engaged in the practice of medicine on behalf of defendant Arnot Health Inc. in Elmira, New York. 11. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was and is engaged in the practice of medicine on behalf of defendant Finger Lakes Orthopedic Surgery, P.C., 300 Hoffman Street in Elmira, New York. 10 4 of of 26 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 12. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was acting as an agent, implied agent, servant, and/or employee of defendant Arnot Ogden Medical Center at the time when she performed surgeries and provided care and treatment to plaintiff’s decedent. 13. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was acting as an agent, implied agent, servant, and/or employee of defendant Arnot Health Inc. at the time when she performed surgeries and provided care and treatment to plaintiff’s decedent. 14. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg was acting as an agent, implied agent, servant, and/or employee of defendant defendant Finger Lakes Orthopedic Surgery, P.C. at the time when she performed surgeries and provided care and treatment to plaintiff’s decedent. 15. Upon information and belief, at all times hereinafter mentioned, Dr. Willenborg provided training, supervision and direction to surgical residents and fellows participating in the care of her patients and was responsible for the care provided to her patients by residents in training. 16. Defendant Finger Lakes Orthopedic Surgery, P.C. (hereinafter referred to as Finger Lakes Orthopedic Surgery) is a professional corporation organized and existing under the laws of the State of New York with an office at 300 Hoffman Street, Elmira, County of Chemung, State of New York. 17. Upon information and belief, at all times hereinafter mentioned, Finger Lakes Orthopedic Surgery also does business as Orthopedic Surgery Hoffman. 3 11 5 of of 26 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 18. Finger Lakes Orthopedic Surgery through its agents, servants, members, employees, physicians, physician assistants, nurses, staff and/or medical personnel or other individuals acting under its professional corporation, agency, supervision and/or control, including, but not limited to the named co-Defendant held themselves out as duly qualified to render proper and adequate medical care, treatment, and services, including surgery, to members of the general public, including its patient, plaintiff’s decedent James R. Parker. 19. Finger Lakes Orthopedic Surgery as part of the operation of its practice hired, engaged, included as members of the professional corporation and/or otherwise took responsibility for the actions of healthcare professionals, staff and personnel, including, but not limited to physicians, physician assistants, nurses, residents, interns, students, technicians and/or other healthcare personnel, including, but not limited to the named co-Defendant and had a duty to manage, control and otherwise supervise their work during the care and treatment of persons such as plaintiff’s decedent James R. Parker. 20. That Finger Lakes Orthopedic Surgery by and through its agents, members, servants, employees, medical personnel, staff and/or other individuals acting under the control and/or supervision of said practice, including, but not limited to co-Defendant named herein, among others, undertook to and did render medical care, treatment and services to James R. Parker (deceased) between December 19, 2018 through December 21, 2018 and, most specifically, performed surgery at Arnot Ogden Medical Center on or about December 21, 2018. 4 12 6 of of 26 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 21. That Finger Lakes Orthopedic Surgery is vicariously liable for the negligence, careless acts and other acts and omissions falling below relevant standards of care of its members, employees, agents and representatives including, but not limited to the named co-Defendant herein among others. 22. Upon information and belief, at all times hereinafter mentioned, defendant WESTLEY KIPPHUT, MD (hereinafter referred to as “Dr. Kipphut”), was and is a physician licensed to practice medicine in New York State. 23. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and is a medical doctor engaged in the practice of anesthesiology in Chemung County, New York. 24. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut held himself out as a skilled and competent physician and specialist in anesthesia capable of properly and skillfully providing anesthesia, treatment and after care for persons in need of such services. 25. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and is engaged in the practice of medicine at defendant Arnot Ogden Medical Center in Elmira, New York. 26. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and is engaged in the practice of medicine at defendant Associated Anesthesiologists of the Finger Lakes LLP, 600 Roe Avenue in Elmira, New York. 27. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and is engaged in the practice of medicine on behalf of defendant Arnot Ogden Medical Center in Elmira, New York. 5 13 7 of of 26 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 28. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and is engaged in the practice of medicine on behalf of defendant Arnot Health Inc. in Elmira, New York. 29. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was and is engaged in the practice of medicine on behalf of defendant Associated Anesthesiologists of the Finger Lakes LLP, 600 Roe Avenue in Elmira, New York. 30. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was acting as an agent, implied agent, servant, and/or employee of defendant Arnot Ogden Medical Center at the time when he administered anesthesia and provided care and treatment to plaintiff’s decedent. 31. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was acting as an agent, implied agent, servant, and/or employee of defendant Arnot Health Inc. at the time when he administered anesthesia and provided care and treatment to plaintiff’s decedent. 32. Upon information and belief, at all times hereinafter mentioned, Dr. Kipphut was acting as an agent, implied agent, servant, and/or employee of defendant Associated Anesthesiologists of the Finger Lakes LLP, 600 Roe Avenue in Elmira, New York at the time when he administered anesthesia and provided care and treatment to plaintiff’s decedent. 33. On December 21, 2018, Dr. Kipphut was not board certified in anesthesiology. 34. Defendant, Associated Anesthesiologists Of The Finger Lakes LLP (hereinafter referred to as Associated Anesthesiologists of the Finger Lakes) is a domestic limited 6 14 8 of of 26 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 liability partnership organized and existing under the laws of the State of New York with an office at 600 Roe Avenue, Elmira, County of Chemung, State of New York. 35. Defendant Associated Anesthesiologists of the Finger Lakes through its agents, servants, partners, members, employees, physicians, physician assistants, nurses, staff and/or medical personnel or other individuals acting under its limited liability partnership, agency, supervision and/or control, including, but not limited to the named co-Defendant held themselves out as duly qualified to render proper and adequate medical care, treatment, and services, including anesthesia, to members of the general public, including its patient, plaintiff’s decedent James R. Parker. 36. Associated Anesthesiologists of the Finger Lakes as part of the operation of its practice hired, engaged, included as members of the professional corporation and/or otherwise took responsibility for the actions of healthcare professionals, staff and personnel, including, but not limited to physicians, physician assistants, nurses, residents, interns, students, technicians and/or other healthcare personnel, including, but not limited to the named co-Defendant and had a duty to manage, control and otherwise supervise their work during the care and treatment of persons such as plaintiff’s decedent James R. Parker. 37. Dr. Kipphut was a physician member, partner, employee or agent of Associated Anesthesiologists of the Finger Lakes and was at all times acting within the scope of his membership, employment and/or agency. 38. That Associated Anesthesiologists of the Finger Lakes by and through its agents, members, partners, servants, employees, medical personnel, staff and/or other individuals acting under the control and/or supervision of said practice, including, but 7 15 9 of of 26 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 not limited to co-Defendant named herein, among others, undertook to and did render medical care, treatment and services to plaintiff’s decedent James R. Parker on December 21, 2018 at Arnot Ogden Medical Center. 39. That Associated Anesthesiologists of the Finger Lakes is vicariously liable for the negligence, careless acts and other acts and omissions falling below relevant standards of care of its members, employees, agents and representatives including, but not limited to the named co-Defendant herein among others. 40. That, upon information and belief, at all times herein mentioned, Defendant Arnot Ogden Medical Center (hereinafter referred to as AOMC) was and still is a domestic not-for-profit corporation duly organized and existing under and by virtue of the laws of the State of New York, with corporate offices located in New York, and with a hospital for the care and treatment of the general public located at 600 Roe Avenue, Elmira, County of Chemung, State of New York. 41. At all times herein mentioned, AOMC owned, operated, managed, maintained and controlled, among other facilities, a hospital for the care of sick and injured persons located at 600 Roe Avenue, Elmira, County of Chemung, State of New York. 42. That, upon information and belief, and at all times herein mentioned, as part of the operation of AOMC, said Defendant hired, engaged, granted privileges to, and/or otherwise took responsibility for the actions of healthcare professions, staff and personnel, including, but not limited to, physicians, physician assistants, nurses, nurse’s aides, residents, interns, students, technicians and/or other healthcare personnel, including, but not limited to the co-Defendants named herein, and thus , 8 10 16 of 26 86 FILED: CHEMUNG COUNTY CLERK 08/27/2020 11/20/2020 04:35 03:42 PM INDEX NO. 2020-5510 NYSCEF DOC. NO. 1 6 RECEIVED NYSCEF: 08/27/2020 11/20/2020 had a duty to manage control and otherwise supervise their work during the care and treatment of persons such as plaintiff’s decedent James R. Parker. 43. That Defendant, AOMC by and through its agents, servants, employees, medical personnel staff and/or other individuals acting under the control and/or supervision of said hospital, including, but not limited to co-Defendants named herein, undertook to and did render medical care, treatment and services to plaintiff’s decedent James R. Parker at the aforementioned location, specifically one or about December 19, 2018 through December 21, 2018. 44. That upon information and belief, and at all times herein mentioned, the agents, servants, employees, physicians, physician assistants, nurses, nurse assistants, staff and/or other individuals acting within the supervision and control of defendant AOMC including, but not limited to co-Defendants were acting within the scope of their employment, agency, or authority of AOMC, in rendering medical care, treatment, advice and services to plaintiff’s decedent James R. Parker. 45. That upon information and belief, at all times herein mentioned, Defendant Arnot Health, Inc. was and still is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York, with corporate offices located at 600 Roe Avenue, Elmira, County of Chemung, State of New York and functions to operate a health system providing a wide range of inpatient, outpatient and physical services in the Southern tier of New York as well as in the Northern tier of