Preview
FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015
NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTYOFNEWYORK
——————————X
SHELL YANN HOFFMAN and OLUJIMI JOLAOSHO, Index No.:805302/15
Plaintiff(s),
EXPERT AFFIRMATION
-against-
DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D.,
DMITRY YOUSHKO, M.D., MEGAN KWASNIAK,
M.D., LARISSA STATHAKES, P.A., BROOKLYN
HOSPITAL and NEW YORK PRESBYTERIAN
HOSPITAL
Defendant(s).
-X
.Dphil ddli &'Mi 'SS f kK
the following to be true pursuant to CPLR 2106 and subject to the penalties of perjury:
l. I am a physician Board Certified in Urology and licensed to
practice medicine in New York. I am a diplomate of the American Board of Urology and a Fellow
of the American College of Surgeons. I completed a Urology oncology Fellowship at Roswell Park
Memorial Institute. I have been an assistant clinical professor of Urology at the Albert Einstein
College of Medicine involved in instructing Urology residents. I have been practicing urology
including urologic surgery for 42 years and serve as a urology consultant for the Veterans
Administration Hospital. I actively participate in continuing medical education via journals and
conferences. I am fully familiar with the then existing standards of care for all medical, surgical, and
urologic care and treatment that perlains to this case. All the opinions contained herein are to a
reasonable degree of medical certainty and based upon my review of the pertinent records including,
but not limited to The New York Presbyterian Hospital chart, depositions taken in the case, pleadings,
and further based upon my decades of practical experience, skills and knowledge developed over
FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015
NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020
decades, as well as my education, teaching, and research. I have performed hysterectomies and am
fully familiar with then existing standard of care for hysterectomies along with diagnosing urologic
injuries intra-operatively and post-operatively. Additionally, during the course my decades long
medical care I have been routinely involved in the operative and post-operative management of
patients with hysterectomies and I am fully familiar with the signs and symptoms ofa ureteral injuries.
I am fully familiar with standard of care for diagnosing, evaluating and treating ureteral injuries in
this context. I am fully familiar with the standards of care existing at the time applicable to surgeons
who operate in close proximity to urologic structures such as the ureters and bladder. I am fully
familiar with the standard of care for use of prophylactic ureteral catheters back at that time in this
setting. I have frequently been called upon in my medical career to provide intra-operative urologic
consultations during gynecological surgeries such a hysterectomies and to perform ureteral and
bladder repairs for injuries. As such, I am well versed in the medicine and standards of care at issue
in this lawsuit as to all moving defendants. I have the requisite knowledge to opine as to all defendants
based upon based upon my decades of practical experience, skills and knowledge developed over
decades, as well as my education, teaching, and research.
2. All of my opinions in this Affirmation are offered to a reasonable degree of medical
certainty.
3. I have reviewed the affidavit of the defense physician, Toby Chai, M.D. in support of
the motion papers of defendants Debra Taubel, M.D., Tirsit Asfaw, M.D., and New York
Presbyterian Hospital. I disagree with the opiñioñs of Dr. Chai offered therein.
4. It is my opinion to a reasonable degree of medical certainty that defendants Debra
Taubel, M.D., Tirsit Asfaw, M.D., and New York Presbyterian Hospital, by its employees and
staff, departed from good and accepted practice and that such departures were the proximate cause
of Shellyann Hoffman's injuries and sequela. My basis for these opinions is detailed below.
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5. The ureters are peristaltic tubular structures that are located in the retroperitoneum
and transport urine from the kidneys to the bladder. They are divided into three segments. The
proximal ureter is the segment that extends from the ureteropelvic junction to the area where the
ureter crosses the sacroiliac joint. The middle ureter courses along the bony pelvis and iliac vessels.
The pelvic or distal ureter extends from the iliac vessels to the bladder.
6. It is undisputed that an intraoperative transection of Shellyann Hoffman's right ureter
occurred during the hysterectomy surgery performed on September 9, 2014.
7. Defendant New York Presbyterian Hospital's chart documents "iatrogenic right
hysterectomy"
ureteral transection during and "unrecognized iatrogenic Right Ureteral transection".
8. The hospital chart documents as a diagnosis "Intraoperative Ureteral Injury".
9. Per the hospital chart, a Retrograde Pyelogram, (performed 9 days after the
hysterectomy) revealed: "Complete or near transection of distal right ureter".
10. The defense expert does not dispute that an intraoperative transection of right ureter
occurred on September 9, 2014.
1 1. It is my opinion to a reasonable degree of medical certainty that Dr. Taubel departed
from good and accepted medical practice by causing a right ureter transection during the
hysterectomy surgery that occurred on September 9, 2014.
12. Simply contending that a transection injury to the ureter during a gynecological
surgical procedure is a known risk does not exculpate the surgeon from violating the standard of
care as the defense claims where the surgeon failed to use proper care or failed to recognize the
injury intraoperatively. I disagree with the defense expert's opiñion that the intra-operative right
ureter injury occurred in the absence of negligence. In this instance, it is my opinion to a reasonable
degree of medical certainty that Dr. Taubel departed from good and accepted medical practice by
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failing to use proper care to identify and protect the ureters during the surgery and in doing so Dr.
Taubel negligently transected the right ureter.
13. To a reasonable degree of medical certainty, it is my opinion that all proper
precautions were not taken to avoid injury to the ureters in accord with the standard of care at the
time as is explained more fully below. I disagree with the defense expert's opinion that "all proper
precautions were taken to avoid injury".
reason"
14. I disagree with the defense expert's opinion that there was "no for Dr.
Taubel to use ureteral catheters during the hysterectomy.
15. Prophylactic ureteral catheterization can identify otherwise unrecognized ureter
pathology and is a safe way of preventing injuries to the urinary tract, and should a ureter injury occur
during a procedure, instant recognition allows for immediate intraoperative repair.
16. Prophylactic ureteral catheters were indicated per the standard of care at the time at
issue for high-risk patients including pregnant patierits such as Ms. Hoffman.
17. Ms. Hoffman had increased risk factors for iatrogenic ureteral injury including uterine
size at 23 weeks gestational age. Per the standard of care at that time uterine size equal to or greater
than 12 weeks gestational age predisposed a patient to iatrogenic ureteral injury. In this instance, the
threshold for high risk due to uterine size (i.e. =/>l 2 weeks) was nearly double as this patient was at
23 weeks gestational age. The pre-operative diagnosis of placenta accreta, where the placenta attaches
itself too deeply and too firmly into the uterus, further predisposed the patient to risk for ureteral injury
and the patient's surgical history of a prior cesarean section, predisposing her to adhesions, put her at
additional risk for ureteral injury.
18. Because Shellyann Hoffman's risk for ureteral injury was nearly double the threshold
for predisposing a patient to increased risk for ureteral injury due to her being at 23 weeks gestational
age and because she had other significant risk factors for ureteral injury (i.e. placenta accreta and prior
FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015
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cesarean section), it is my opinion to a reasonable degree of medical that prophylactic
certaiilty
ureteral catheters were indicated for this patient per the standard of care at the time. The benefit of
using catheters was to prevent ureteral injury by aiding in the identification of the left and right ureters
and to facilitate intra-operative detection through enhanced palpation and êñliañced visual inspection
and allow for intra-operative repair of ureteral injuries. It is my opinion to a reasonable degree of
medical certainty that the benefits of use of prophylactic ureteral catheters outweighed any risks. I
disagree with the defense expert's opinion claiming otherwise.
19. I disagree that ureteral catheters had greater potential in this instance of causing a
perforation. While the placing of ureteral catheterization has a small risk of complications in and of
itself, the benefits of use of ureteral catheters in this instance greatly outweighed any risk. The low
risk of complications of a prophylactic ureteral catheterization is nowhere near as dangerous as the
risk of an unrecognized ureteral injmy.
20. I disagree with the defense expert's opinion and Dr. Taubel's contention that soft
ureters made use of prophylactic ureteral catheters contraindicated due to their being prone to
perforation. The ureters are soft during pregnancy and therefore more flexible and pliable.
Consequently, the defense theory that soft ureters make them more prone to perforation is wrong. At
the time at issue, and presently, prophylactic ureteral es&êters are not contraindicated in pregnant
women and ureteral catheters and stents are routinely placed in pregnant women when indicated, e.g.,
for stones and ureteral obstruction, and they are also frequently utilized in procedures by gynecologic
oncologists. Given the large size of the uterus at 23 weeks gestational age and the pre-operative
diagnosis of plãceñtal accreta, where the placenta attaches itself too deeply and too firmly into the
uterus, this hysterectomy was akin to the performance of a hysterectomy in a gynecological oncologic
setting.
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21. Dr. Asfaw testified at her deposition that ureteral catheters recognize intra-
"help
operative injury". I disagree with the opinion of the defense expert and Dr. Asfaw that a catheter does
not reduce the incidence of ureteral injury. In fact, they are known in the medical community as
prophylactic ureteral catheters because they serve a preventative function in aiding and enhancing
ureteral identification, facilitating ureteral palpation, and tracking of ureteral pathways and thereby
reducing injury.
22. At the time at issue, the standard of care required that for difficult cases, such as this,
with the patient being significantly at risk for ureteral injury that prophylactic ureteral catheters be
placed in the operating room prior to the initial incision. It is my opinion to a reasonable degree of
medical certainty that Dr. Taubel departed from good and accepted medical practice in failing to
identify and protect the ureters by utilizing prophylactic ureteral ca eters and that such departure was
a substantial factor in causing the right ureteral transection. It is my opinion to a reasonable degree
of medical certainty that more likely than not use of prophylactic ureteral catheters would have
prevented the right ureter transection injury by enhancing identification of the ureters pathways
visually and by palpation, thereby protecting the ureters.
23. The defense expert claims that a diagnosis of ureteral injury could not have been made
on September 9, 2014. I disagree. It is my opinion to a reasonable degree of medical certainty that use
of prophylactic ureteral catheters, more likely than not, would have resulted in the detection of the
right ureter transection intraoperatively, as such catheters have high injury detection rates, thereby
allowing primary repair intra-operatively.
24. For the reasons detailed above, it is my opinion to a reasonable degree of medical
certainty that Dr. Taubel departed from good and accepted medical practice in failing to use
prophylactic ureteral catheters and that said departure was a proximate and competent cause of the
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right ureter transection and a proximate cause of the right ureteral injury being unrecognized
intraoperatively.
25. The defense expert opines that Dr. Taubel and Dr. Asfaw each properly assessed and
determined intra-operatively that there was no injury to the ureters. I disagree with this assertion and
the facts support my basis. The defense expert fails to opine how the undisputed intraoperative right
ureter transection occurred if indeed both physicians properly assessed and confirmed intraoperatively
the absence of injury to the ureters.
injury"
26. The defense expert opines, that "all proper precannons were taken to avoid
and that "Dr. Taubel identified all anatomical structures including the ureters during the
procedure"
yet the operative report fails to document that the right ureter was identified. The
identified"
operative report states that "the left ureter was but notably missing from the operative
report is an entry stating that "the right ureter was identified". I disagree with Dr. Taubel's testimony
fashion"
that the reference to "taking down the right side in similar serves to document that the
right ureter was identified. I disagree that the reference to the Maylard incision indicates that proper
identification of the right ureter occurred. The absence of documentation in the operative report
that the right ureter was identified supports this. Dr. Asfaw testified that if the right ureter was
course"
identified and assessed that the primary surgeon "of should have documented it. At her
deposition, Dr. Asfaw agreed that nowhere within the operative report does it state that the right
ureter was identified.
27. When a procedure is anticipated to occur in the vicinity of the ureters, as was the case
here, the surgeon, per the standard of care, must identify the path of the ureters in the operative field,
bilaterally, and document same. Here, there was a failure by Dr. Taubel to timely and properly identify
the right ureter and this is supported by the operative report. The failure to safeguard the ureters
during a hysterectomy can result in a ureter being transected as occurred in this case.
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28. It is my opinion to a reasonable degree of medical certainty that Dr. Taubel departed
from good and accepted medical practice by causing a transection to plaintiff s right ureter
injury
during the surgery. It is further my opinion that Dr. Taubel departed from good and accepted
practice by failing to diagnose the right ureter transection intra-operatively by means of timely and
proper inspection and assessment of the ureters.
29. The defense expert claims that at the close of surgery the operative field had no sign
of ureteral injury. Yet, Dr. Taubel testified she had no independent memory of inspecting the pelvis
for any bleeding. Nor is this documented in the operative report. She also testified that she had no
independent memory of looking for ureters at closing. She testified that by custom and practice, "one
of the last things we do is look for the ureters". Asked if in this specific case she looked for the ureters
before closing she testified "I don't recall specifically". Based upon this uncertainty as to inspections
made prior to closing, I disagree with the defense expert's opinion that there was no evidence of
pooling of urine and tests that would have evidenced pooling of urine such as use of dye and
cystoscopy were not performed.
30. The defense expert erroneously suggests that assessing the integrity of ureters was
not within Dr. Asfaw's purview. The facts indicate otherwise. Dr. Taubel testified that "My request
to her [Dr. Asfaw] was that she be there when we looked at the bladder and dissected the bladder off
the uterus to make sure the integrity of the system was maintained. Dr. Taubel defined system in that
context as being the "urinary system and the bladder". Dr. Taubel testified that the ureter is part of
the urinary system. Thus, Dr. Taubel wanted Dr. Asfaw to be present to make sure the integrity of the
ureters, in part, was maintained during the subject surgery. Dr. Asfaw at her deposition was read this
portion of Dr. Taubel's deposition and Dr. Asfaw agreed that integrity of right and left ureters were
within her purview as the intraoperative consult on September 9, 2014.
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31. It is my opinion to a reasonable degree of medical certainty that Dr. Asfaw departed
from good and accepted mMical practice as it pertains to properly assessing the integrity ofthe urinary
system, and, in particular, in failing to diagnose the right uretertransection intraoperatively. Dr. Asfaw
testified she did not have an independent memory of assessing the right and left ureters during the
surgery but rather that this would be her custom and practice. Dr. Asfaw did not create an operative
report and therefore there is no docutileiitation by Dr. Asfaw (nor within Dr. Taubel's operative
report) memorializing what Dr. Asfaw did during the surgery as it pertains to prevention of ureteral
injury or assessment for ureteral injury.
32. The defense expert concedes that a cystoscopy should occur if there is suspicion for
ureteral injury. In this case, per the standard of care, there should have been high suspicion for ureteral
injury due to Shellyann Hoffman's increased risk for ureteral injury due to her being 23 weeks
gestational age, her co morbidities including placenta accreta and her surgical history including a prior
cesarean section. Consequently, the stmidard of care required utilizing dye and cystoscopy as intra-
operative ureteral competency tests. Use of dye involves direct inspection of the ureters using
intravenous dyes such as methylene blue and indigo carmine to evaluate for dye leakage along the
course of the ureter. Intraoperative cystoscopy is useful to detect ureteral injuries such as transection
and facilitates immediate correction and avoidance of subsequent operations and/or permanent
sequelae to the patient.
33. It is my opinion to a reasonable degree of medical certainty that Dr. Taubel and Dr.
Asfaw departed from good and accepted
Preview
FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTYOFNEWYORK ——————————X SHELL YANN HOFFMAN and OLUJIMI JOLAOSHO, Index No.:805302/15 Plaintiff(s), EXPERT AFFIRMATION -against- DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D., DMITRY YOUSHKO, M.D., MEGAN KWASNIAK, M.D., LARISSA STATHAKES, P.A., BROOKLYN HOSPITAL and NEW YORK PRESBYTERIAN HOSPITAL Defendant(s). -X .Dphil ddli &'Mi 'SS f kK the following to be true pursuant to CPLR 2106 and subject to the penalties of perjury: l. I am a physician Board Certified in Urology and licensed to practice medicine in New York. I am a diplomate of the American Board of Urology and a Fellow of the American College of Surgeons. I completed a Urology oncology Fellowship at Roswell Park Memorial Institute. I have been an assistant clinical professor of Urology at the Albert Einstein College of Medicine involved in instructing Urology residents. I have been practicing urology including urologic surgery for 42 years and serve as a urology consultant for the Veterans Administration Hospital. I actively participate in continuing medical education via journals and conferences. I am fully familiar with the then existing standards of care for all medical, surgical, and urologic care and treatment that perlains to this case. All the opinions contained herein are to a reasonable degree of medical certainty and based upon my review of the pertinent records including, but not limited to The New York Presbyterian Hospital chart, depositions taken in the case, pleadings, and further based upon my decades of practical experience, skills and knowledge developed over FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 decades, as well as my education, teaching, and research. I have performed hysterectomies and am fully familiar with then existing standard of care for hysterectomies along with diagnosing urologic injuries intra-operatively and post-operatively. Additionally, during the course my decades long medical care I have been routinely involved in the operative and post-operative management of patients with hysterectomies and I am fully familiar with the signs and symptoms ofa ureteral injuries. I am fully familiar with standard of care for diagnosing, evaluating and treating ureteral injuries in this context. I am fully familiar with the standards of care existing at the time applicable to surgeons who operate in close proximity to urologic structures such as the ureters and bladder. I am fully familiar with the standard of care for use of prophylactic ureteral catheters back at that time in this setting. I have frequently been called upon in my medical career to provide intra-operative urologic consultations during gynecological surgeries such a hysterectomies and to perform ureteral and bladder repairs for injuries. As such, I am well versed in the medicine and standards of care at issue in this lawsuit as to all moving defendants. I have the requisite knowledge to opine as to all defendants based upon based upon my decades of practical experience, skills and knowledge developed over decades, as well as my education, teaching, and research. 2. All of my opinions in this Affirmation are offered to a reasonable degree of medical certainty. 3. I have reviewed the affidavit of the defense physician, Toby Chai, M.D. in support of the motion papers of defendants Debra Taubel, M.D., Tirsit Asfaw, M.D., and New York Presbyterian Hospital. I disagree with the opiñioñs of Dr. Chai offered therein. 4. It is my opinion to a reasonable degree of medical certainty that defendants Debra Taubel, M.D., Tirsit Asfaw, M.D., and New York Presbyterian Hospital, by its employees and staff, departed from good and accepted practice and that such departures were the proximate cause of Shellyann Hoffman's injuries and sequela. My basis for these opinions is detailed below. FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 5. The ureters are peristaltic tubular structures that are located in the retroperitoneum and transport urine from the kidneys to the bladder. They are divided into three segments. The proximal ureter is the segment that extends from the ureteropelvic junction to the area where the ureter crosses the sacroiliac joint. The middle ureter courses along the bony pelvis and iliac vessels. The pelvic or distal ureter extends from the iliac vessels to the bladder. 6. It is undisputed that an intraoperative transection of Shellyann Hoffman's right ureter occurred during the hysterectomy surgery performed on September 9, 2014. 7. Defendant New York Presbyterian Hospital's chart documents "iatrogenic right hysterectomy" ureteral transection during and "unrecognized iatrogenic Right Ureteral transection". 8. The hospital chart documents as a diagnosis "Intraoperative Ureteral Injury". 9. Per the hospital chart, a Retrograde Pyelogram, (performed 9 days after the hysterectomy) revealed: "Complete or near transection of distal right ureter". 10. The defense expert does not dispute that an intraoperative transection of right ureter occurred on September 9, 2014. 1 1. It is my opinion to a reasonable degree of medical certainty that Dr. Taubel departed from good and accepted medical practice by causing a right ureter transection during the hysterectomy surgery that occurred on September 9, 2014. 12. Simply contending that a transection injury to the ureter during a gynecological surgical procedure is a known risk does not exculpate the surgeon from violating the standard of care as the defense claims where the surgeon failed to use proper care or failed to recognize the injury intraoperatively. I disagree with the defense expert's opiñion that the intra-operative right ureter injury occurred in the absence of negligence. In this instance, it is my opinion to a reasonable degree of medical certainty that Dr. Taubel departed from good and accepted medical practice by FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 failing to use proper care to identify and protect the ureters during the surgery and in doing so Dr. Taubel negligently transected the right ureter. 13. To a reasonable degree of medical certainty, it is my opinion that all proper precautions were not taken to avoid injury to the ureters in accord with the standard of care at the time as is explained more fully below. I disagree with the defense expert's opinion that "all proper precautions were taken to avoid injury". reason" 14. I disagree with the defense expert's opinion that there was "no for Dr. Taubel to use ureteral catheters during the hysterectomy. 15. Prophylactic ureteral catheterization can identify otherwise unrecognized ureter pathology and is a safe way of preventing injuries to the urinary tract, and should a ureter injury occur during a procedure, instant recognition allows for immediate intraoperative repair. 16. Prophylactic ureteral catheters were indicated per the standard of care at the time at issue for high-risk patients including pregnant patierits such as Ms. Hoffman. 17. Ms. Hoffman had increased risk factors for iatrogenic ureteral injury including uterine size at 23 weeks gestational age. Per the standard of care at that time uterine size equal to or greater than 12 weeks gestational age predisposed a patient to iatrogenic ureteral injury. In this instance, the threshold for high risk due to uterine size (i.e. =/>l 2 weeks) was nearly double as this patient was at 23 weeks gestational age. The pre-operative diagnosis of placenta accreta, where the placenta attaches itself too deeply and too firmly into the uterus, further predisposed the patient to risk for ureteral injury and the patient's surgical history of a prior cesarean section, predisposing her to adhesions, put her at additional risk for ureteral injury. 18. Because Shellyann Hoffman's risk for ureteral injury was nearly double the threshold for predisposing a patient to increased risk for ureteral injury due to her being at 23 weeks gestational age and because she had other significant risk factors for ureteral injury (i.e. placenta accreta and prior FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 cesarean section), it is my opinion to a reasonable degree of medical that prophylactic certaiilty ureteral catheters were indicated for this patient per the standard of care at the time. The benefit of using catheters was to prevent ureteral injury by aiding in the identification of the left and right ureters and to facilitate intra-operative detection through enhanced palpation and êñliañced visual inspection and allow for intra-operative repair of ureteral injuries. It is my opinion to a reasonable degree of medical certainty that the benefits of use of prophylactic ureteral catheters outweighed any risks. I disagree with the defense expert's opinion claiming otherwise. 19. I disagree that ureteral catheters had greater potential in this instance of causing a perforation. While the placing of ureteral catheterization has a small risk of complications in and of itself, the benefits of use of ureteral catheters in this instance greatly outweighed any risk. The low risk of complications of a prophylactic ureteral catheterization is nowhere near as dangerous as the risk of an unrecognized ureteral injmy. 20. I disagree with the defense expert's opinion and Dr. Taubel's contention that soft ureters made use of prophylactic ureteral catheters contraindicated due to their being prone to perforation. The ureters are soft during pregnancy and therefore more flexible and pliable. Consequently, the defense theory that soft ureters make them more prone to perforation is wrong. At the time at issue, and presently, prophylactic ureteral es&êters are not contraindicated in pregnant women and ureteral catheters and stents are routinely placed in pregnant women when indicated, e.g., for stones and ureteral obstruction, and they are also frequently utilized in procedures by gynecologic oncologists. Given the large size of the uterus at 23 weeks gestational age and the pre-operative diagnosis of plãceñtal accreta, where the placenta attaches itself too deeply and too firmly into the uterus, this hysterectomy was akin to the performance of a hysterectomy in a gynecological oncologic setting. FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 21. Dr. Asfaw testified at her deposition that ureteral catheters recognize intra- "help operative injury". I disagree with the opinion of the defense expert and Dr. Asfaw that a catheter does not reduce the incidence of ureteral injury. In fact, they are known in the medical community as prophylactic ureteral catheters because they serve a preventative function in aiding and enhancing ureteral identification, facilitating ureteral palpation, and tracking of ureteral pathways and thereby reducing injury. 22. At the time at issue, the standard of care required that for difficult cases, such as this, with the patient being significantly at risk for ureteral injury that prophylactic ureteral catheters be placed in the operating room prior to the initial incision. It is my opinion to a reasonable degree of medical certainty that Dr. Taubel departed from good and accepted medical practice in failing to identify and protect the ureters by utilizing prophylactic ureteral ca eters and that such departure was a substantial factor in causing the right ureteral transection. It is my opinion to a reasonable degree of medical certainty that more likely than not use of prophylactic ureteral catheters would have prevented the right ureter transection injury by enhancing identification of the ureters pathways visually and by palpation, thereby protecting the ureters. 23. The defense expert claims that a diagnosis of ureteral injury could not have been made on September 9, 2014. I disagree. It is my opinion to a reasonable degree of medical certainty that use of prophylactic ureteral catheters, more likely than not, would have resulted in the detection of the right ureter transection intraoperatively, as such catheters have high injury detection rates, thereby allowing primary repair intra-operatively. 24. For the reasons detailed above, it is my opinion to a reasonable degree of medical certainty that Dr. Taubel departed from good and accepted medical practice in failing to use prophylactic ureteral catheters and that said departure was a proximate and competent cause of the FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 right ureter transection and a proximate cause of the right ureteral injury being unrecognized intraoperatively. 25. The defense expert opines that Dr. Taubel and Dr. Asfaw each properly assessed and determined intra-operatively that there was no injury to the ureters. I disagree with this assertion and the facts support my basis. The defense expert fails to opine how the undisputed intraoperative right ureter transection occurred if indeed both physicians properly assessed and confirmed intraoperatively the absence of injury to the ureters. injury" 26. The defense expert opines, that "all proper precannons were taken to avoid and that "Dr. Taubel identified all anatomical structures including the ureters during the procedure" yet the operative report fails to document that the right ureter was identified. The identified" operative report states that "the left ureter was but notably missing from the operative report is an entry stating that "the right ureter was identified". I disagree with Dr. Taubel's testimony fashion" that the reference to "taking down the right side in similar serves to document that the right ureter was identified. I disagree that the reference to the Maylard incision indicates that proper identification of the right ureter occurred. The absence of documentation in the operative report that the right ureter was identified supports this. Dr. Asfaw testified that if the right ureter was course" identified and assessed that the primary surgeon "of should have documented it. At her deposition, Dr. Asfaw agreed that nowhere within the operative report does it state that the right ureter was identified. 27. When a procedure is anticipated to occur in the vicinity of the ureters, as was the case here, the surgeon, per the standard of care, must identify the path of the ureters in the operative field, bilaterally, and document same. Here, there was a failure by Dr. Taubel to timely and properly identify the right ureter and this is supported by the operative report. The failure to safeguard the ureters during a hysterectomy can result in a ureter being transected as occurred in this case. FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 28. It is my opinion to a reasonable degree of medical certainty that Dr. Taubel departed from good and accepted medical practice by causing a transection to plaintiff s right ureter injury during the surgery. It is further my opinion that Dr. Taubel departed from good and accepted practice by failing to diagnose the right ureter transection intra-operatively by means of timely and proper inspection and assessment of the ureters. 29. The defense expert claims that at the close of surgery the operative field had no sign of ureteral injury. Yet, Dr. Taubel testified she had no independent memory of inspecting the pelvis for any bleeding. Nor is this documented in the operative report. She also testified that she had no independent memory of looking for ureters at closing. She testified that by custom and practice, "one of the last things we do is look for the ureters". Asked if in this specific case she looked for the ureters before closing she testified "I don't recall specifically". Based upon this uncertainty as to inspections made prior to closing, I disagree with the defense expert's opinion that there was no evidence of pooling of urine and tests that would have evidenced pooling of urine such as use of dye and cystoscopy were not performed. 30. The defense expert erroneously suggests that assessing the integrity of ureters was not within Dr. Asfaw's purview. The facts indicate otherwise. Dr. Taubel testified that "My request to her [Dr. Asfaw] was that she be there when we looked at the bladder and dissected the bladder off the uterus to make sure the integrity of the system was maintained. Dr. Taubel defined system in that context as being the "urinary system and the bladder". Dr. Taubel testified that the ureter is part of the urinary system. Thus, Dr. Taubel wanted Dr. Asfaw to be present to make sure the integrity of the ureters, in part, was maintained during the subject surgery. Dr. Asfaw at her deposition was read this portion of Dr. Taubel's deposition and Dr. Asfaw agreed that integrity of right and left ureters were within her purview as the intraoperative consult on September 9, 2014. FILED: NEW YORK COUNTY CLERK 08/06/2020 02:38 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 08/06/2020 31. It is my opinion to a reasonable degree of medical certainty that Dr. Asfaw departed from good and accepted mMical practice as it pertains to properly assessing the integrity ofthe urinary system, and, in particular, in failing to diagnose the right uretertransection intraoperatively. Dr. Asfaw testified she did not have an independent memory of assessing the right and left ureters during the surgery but rather that this would be her custom and practice. Dr. Asfaw did not create an operative report and therefore there is no docutileiitation by Dr. Asfaw (nor within Dr. Taubel's operative report) memorializing what Dr. Asfaw did during the surgery as it pertains to prevention of ureteral injury or assessment for ureteral injury. 32. The defense expert concedes that a cystoscopy should occur if there is suspicion for ureteral injury. In this case, per the standard of care, there should have been high suspicion for ureteral injury due to Shellyann Hoffman's increased risk for ureteral injury due to her being 23 weeks gestational age, her co morbidities including placenta accreta and her surgical history including a prior cesarean section. Consequently, the stmidard of care required utilizing dye and cystoscopy as intra- operative ureteral competency tests. Use of dye involves direct inspection of the ureters using intravenous dyes such as methylene blue and indigo carmine to evaluate for dye leakage along the course of the ureter. Intraoperative cystoscopy is useful to detect ureteral injuries such as transection and facilitates immediate correction and avoidance of subsequent operations and/or permanent sequelae to the patient. 33. It is my opinion to a reasonable degree of medical certainty that Dr. Taubel and Dr. Asfaw departed from good and accepted