Preview
FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BARBARA SACKAROFF,
AFFIRMATION IN
Plaintiff,
REPLY
-against- Index No.: 514577/2020
SUDHIR DIWAN, M.D., SUDHIR DIWAN, MD LLC, ORAL ARGUMENT
ADVANCED SPINE ON PARK AVENUE MSO, LLC, REQUESTED
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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NICOLE S. BARRESI, an attorney duly admitted to practice in the Courts of the State
of New York, affirms the following to be true under the penalties of perjury:
1. I am a member of the firm of MARTIN CLEARWATER & BELL LLP, the
attorneys of record for defendant JANDE WEEKS, CRNA (hereafter referred to as “CRNA
WEEKS”), and as such, I am familiar with the facts and circumstances herein.
2. I submit this affirmation in further support of the motion by CRNA WEEKS
for 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;
(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.
OVERVIEW
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3. On December 16, 2022, CRNA Weeks filed a motion for summary judgment
supported by the detailed expert affirmation of anesthesiologist, Dr. David Albert who has
decades of experience in anesthesia, as well as experience in surgical care centers and
supervising CRNAs. Dr. Albert opined that the care and treatment rendered by CRNA Weeks
was within the standard of care and did not proximately cause any injury. This satisfied
CRNA Weeks prima face burden.
4. Now in a conclusory late opposition, which was procedurally improper, not
specific to CRNA Weeks and comments on her and co-defendant Dr. Amigud’s care
indiscriminately, plaintiff attempts to claim that CRNA Weeks failed to meet her burden of
proof or that there are issues of fact that preclude summary judgment. In both arguments,
plaintiff blatantly obfuscates the plain meaning of the evidence and fails to appreciate
controlling law.
5. Accordingly, it is submitted that the Court should grant CRNA Weeks motion
for summary judgment.
ARGUMENT
I. SUMMARY JUDGMENT SHOULD BE GRANTED AS TO CRNA WEEKS
A. CRNA WEEKS IS ENTITLED TO SUMMARY JUDGMENT AS SHE DID NOT EXERCISE
INDEPENDENT MEDICAL JUDGMENT AND THERE WAS NO DUTY TO INTERVENE
6. CRNA Weeks is entitled to summary judgment based upon the undisputed fact
that she was at all times acting under the supervision of Dr. Amigud, was not exercising
independent medical judgment and there was no order/direction that was so clearly a
deviation from general practice to require CRNA Weeks to intervene.
7. The law in NYS is that medical providers [residents, CRNAs and nurses]
providing care under the supervision and direction of an attending physician cannot be liable,
even if they played an active role in the treatment, unless they exercised independent medical
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judgment or there was such a great deviation from normal medical practice that they are
required to intervene.
8. CRNA Weeks is the nurse anesthetist who participated in the anesthesia care
during the plaintiff’s Cornerloc procedure on January 7, 2020. CRNAs have credentialing to
provide anesthesia services, however, their licensure requires that they must at all times
practice under the supervision of an attending physician.
9. According to 10 NYCRR §755.4, which governs the practice of CRNAs in
ambulatory surgery centers, “anesthesia services may be administered by a CRNA subject to
the fact that the CRNA must be supervised by either an anesthesiologist who is immediately
available if needed or the operating physician.”
10. Here, CRNA Weeks was acting under the supervision of the anesthesiology
attending, Dr. Amigud. Dr. Amigud testified he was in the OR the entire procedure, obtained
a history and consent, and performed his own physical examination. (Exhibit H at 41, 44-46)
He testified that “I evaluated the patient and established the fact that no airway compromise
was seen,” “I gave the drug to reverse sedation,” and “I decided to react to her symptoms
aggressively and in my practice, best way to do it is to diminish the level of sedation.” (Id. at
64, 62, 52). He further testified “I explained to Dr. Diwan, patient coughed up some secretion
under sedation... Her airway were examined, her ability to ventilate and her oxygenation
levels and chest were checked and there was no established proof of the aspiration had been
found and I asked Dr. Diwan if he feels confident in bringing the surgery to completion with
the condition that patient stays very mildly sedated and we both agreed this is a good plan.”
(Id. at 71). The only time Dr. Amigud mentions CRNA Weeks involvement throughout his
deposition is to state that she removed a soiled nasal cannula and that she documented the
anesthesia chart. (Id. at 49 and 88). Even plaintiff herself called CRNA Weeks, Dr. Amigud’s
assistant. (Exhibit F at 148).
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11. CRNA Weeks is a capable medical provider, but it is uncontested that she was
acting under the supervision of Dr. Amigud and there is no evidence to suggest that she
exercised independent medical judgment during the care at issue.
12. Plaintiff’s arguments that she was exercising independent judgment lack a
understanding of the applicable case law. Plaintiff claims that because CRNA Weeks also
took her own history, did not have specific discussion with Dr. Amigud regarding assessments
of aspiration or the theoretical possibility of acidic injury and/or that she did not consider the
brownish secretions to be an “emergent situation” to be evidence that there was independent
medical judgment. This is simply not evidence of independent medical judgment. First, it is
uncontested that Dr. Amigud took his own history. The fact that CRNA Weeks was a
thorough provider and also asked about the plaintiff’s history did not imply that she made
independent judgments in this case. Further, the fact that Dr. Amigud did not discuss his
assessments for aspiration and/or the possibility of an acidic injury with CRNA Weeks again
supports that Dr. Amigud was in charge of the care and CRNA Weeks was acting under his
direction. Last, the fact that she and Dr. Amigud may have characterized whether secretions
are “emergent” in different words is irrelevant because the testimony is clear that Dr. Amigud
made the relevant decisions in this case.
13. 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).
14. In Toth v. Community Hospital 22 N.Y.2d 255, 265 (N.Y. 1968) the Court
stated that: “The primary duty of a hospital's nursing staff is to follow the physician's orders…
nurses are not authorized to determine for themselves what is a proper course of medical
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treatment. They may not invade the area of the physician's competence and authority to
overrule his orders.
15. CRNA Weeks care is comparable to the Second Department’s decision in Soto
v. Andaz, 8 AD3d 470 (2d Dep’t 2004). There, a resident performed part of the surgery at the
attending’s direction, including dissecting a cystic duct. In reversing the trial court’s denial of
summary judgment, the Second Department held that the resident had demonstrated
entitlement to summary judgment and that “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. Plaintiff tellingly has cited no law in making her
conclusory arguments and has provided no explanation for how this case is not controlling
precedent.
16. In Crawford v. Sorkin, 41 AD3d 278 (2d Dep’t 2007), the Second Department
concluded that even a resident’s status as “night chief resident” was not enough to impute
liability to a resident. Here, a resident was providing care, taking histories, and interpreting
lab values, not with the attending, but under the supervision of one. Again, this precedent
encompasses this situation where CRNA Weeks was participating in the medical care that was
directed by an attending anesthesiologist, who was present in the OR at all times and testified
that he made the relevant decisions and took his own history of the patient.
17. The Appellate Division has made clear that active participation does not imply
independent medical judgment and that something additional is required beyond performing
part of a surgery or performing evaluations. CRNA Weeks was not making independent
medical judgments and should be dismissed from this case.
18. There is also no evidence to support plaintiff’s suggestion that the medical care
rendered so greatly deviated from the standard of care that CRNA Weeks had a duty to
intervene. The circumstances to implicate a duty to intervene are beyond a general claim of
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negligence and are more akin to recklessness or strict liability claims. While again plaintiff
provides this Court absolutely no legal basis to support their conclusory argument, this case is
similar to Walter v. Betancourt, 283 A.D. 2d 223 (NY App. Div. 2001), where a resident
assisted in positioning a mother during the delivery where there was a shoulder dystocia. The
Court found that participating in a procedure/delivery, while acting under the direction of an
attending whose care the plaintiff was critical of, was not evidence that the attending’s orders
were so “clearly contraindicated.” Courts have held that the conduct needs to rise to a level to
where there is an obligation to confirm or further investigate the order to determine if there
was an error. The First Department held there was an issue of fact as to if the orders were so
contraindicated where there was evidence that silk sutures were used where there was a
prohibition against using this material. Warney v. Haddad, 237 AD 2d 123 (1st Dep’t 1997).
The Second Department found an issue of fact in Somoza v. St. Vincent’s Hospital and
Medical Center, 192 A.D.2d 429 (1st Dept. 1993) where a resident carried out an attending’s
order to discharge the mother without a further examination despite evidence that the mother
may soon go into premature labor. Here, there are no such aggravating factors.
19. Plaintiff’s opposition obfuscates the testimony to try to suggest that
orders/actions by Dr. Amigud were clearly contraindicated. This demonstrates the clear lack
of awareness of how a surgical center operates, defies common sense, and seeks to create new
law. Plaintiff’s expert states that both defendants had a responsibility to stop the procedure.
This statement is impermissibly vague, conclusory and it is unclear what plaintiff’s expert is
opining that CRNA Weeks could/should do. The surgery was ongoing and it cannot be
credibly stated that a CRNA has a duty to override two attendings who are closely managing
the care, single handedly stopped the surgery and flipped the patient where the attending felt
there was no risk for aspiration and the patient was stable. Plaintiff has not indicated how this
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should have been done (i.e. whether she should have jumped in front of the attending, called
some unidentified person, etc.)
20. Plaintiff allegations that the supervision and roles of the parties was
“undefined” is unfounded. Dr. Amigud was an attending anesthesiologist and Ms. Weeks was
a CRNA. These are clearly defined roles and the fact that plaintiff’s expert cannot identify
the roles/responsibilities renders his opinions speculative and unreliable. Plaintiff’s expert
concludes that “Nurse Weeks displayed some independent medical judgment in her care with
plaintiff.” There is not one citation to the record to support this conclusion, and plaintiff
failed to set forth any intervention that CRNA Weeks used independent medical judgment in
performing. This is the conclusory types of opinions that are precluded from creating an issue
of material fact.
21. Accordingly, CRNA Weeks must be dismissed from this case because there is
no evidence that she exercised independent judgment or that she carried out any identified
action that was so clearly contraindicated that it imputed a duty to intervene.
B. CRNA WEEKS MET HER PRIMA FACIE BURDEN THROUGH THE EXPERT
AFFIRMATION OF DR. ALBERT
22. In support of the motion for summary judgment, CRNA Weeks served an
expert affirmation by an anesthesiologist with decades of experience in anesthesia and
supervision of CRNAs, who directly cited to the records and testimony. Plaintiff’s claims that
CRNA Weeks failed to meet her burden by claiming that Dr. Albert’s expert affirmation is
speculative and conclusory which demonstrates the lack of credibility to plaintiff’s
opposition.
23. Dr. Albert’s expert opinion is far from speculative and cites to the records and
testimony for every factual statement. This objection can only realistically be a form
objection or a grasping attempt to obscure the obvious.
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24. Plaintiff then attempts to argue that there because there are inconsistencies in
the recollections of the parties years later as to irrelevant details that this renders Dr. Albert’s
opinion to be speculation. Plaintiff cites, Plato v. Generatne, 54 Ad2 741 (2d Dept. 2009)
where the Court denied summary judgment where an expert relied on facts that were disputed,
but also made no reference to important parts of the record. Here, the key portions of the
record are discussed in detail by Dr. Albert in his 14-page affidavit.
25. Here, CRNA Weeks met her prima facie burden.
C. SUMMARY JUDGMENT IS WARRANTED AS TO CRNA WEEKS
26. Plaintiff served a late opposition supported by an expert affirmation that fails
to render an opinion that can be considered by this Court.
27. Here, plaintiff submitted an Affidavit signed by Dr. Lovich, an anesthesiologist
in Massachusetts. There is no accompanying Certificate of Conformity with the affidavit and
it should be disregarded by the Court for failure to comply with the mandates of CPLR § 2309
(c).
28. Further, plaintiff’s counsel requested an adjournment of the January 24, 2023
return date. Defense counsel consented and in the stipulation, plaintiff agreed to serve
opposition by February 14, 2023. (NYSCEF Doc. 106). Despite agreeing to the briefing
schedule, plaintiff missed the deadline to oppose the motion by two weeks.
29. Plaintiff has treated the Court requirements and deadlines as mere suggestions
and not rules to be followed. Accordingly, CRNA Weeks’ motion should be granted as
unopposed.
i. PLAINTIFF’S EXPERT AFFIRMATION FAILS TO ESTABLISH A GENUINE ISSUE OF
MATERIAL FACT AS TO TREATMENT RENDERED BY CRNA WEEKS
30. Pursuant to the relevant summary judgment case law, once the defendants have
met their prima facie burden, plaintiff must show through an expert that there are material
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issues of fact that require a trial of this matter. Alvarez v. Prospect Hosp., 68 N.Y.2d 320
(1986). CRNA Weeks has satisfied her burden, and plaintiff has been unable to demonstrate
any material issues of fact.
31. Plaintiff submitted an affirmation by Dr. Lovich who provides no basis to
indicate that he is familiar with the standard of care for a CRNA and makes many
misstatements about her role.
32. Where a physician opines outside of his or her area of specialization, a
foundation must be laid to support the reliability of the opinion rendered. Mustello v. Berg, 44
A,D,3d 1018 (2d Dep’t, 2007). Here, Dr. Lovich does not state that he is aware of the role
and/or standards of care applicable to a CRNA. Accordingly, Dr. Lovich’s opinion should be
rejected as he failed to lay the proper foundation.
33. Even if the Court deems the expert able to comment on the care of CRNA
Weeks, plaintiff’s expert rendered improperly speculative opinions that are insufficient to
create an issue of material fact.
34. Plaintiff expert opines that there were two deviations specific to CRNA
Weeks: (1) failure to take a history as it pertains to GERD and (2) failure to stop the
procedure and turn the plaintiff supine upon discovering the secretions.
35. Here, CRNA Weeks took a complete history and there is no evidence that
CRNA Weeks had the authority to stop a procedure. Therefore, neither of these constitute
issues of material fact.
36. Plaintiff’s expert’s opinion is based on the incorrect assumption that plaintiff
was never asked about GERD. The evidence demonstrates that this is an incorrect
assumption. CRNA Weeks took a complete history and documented plaintiff’s medical
history, medications, allergies, and surgical history and if plaintiff had any anesthesia issues
in the past. (Exhibit I 42).
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37. Plaintiff failed to report a history of gastroesophageal reflux and admitted that
Dr. Amigud and CRNA Weeks asked questions about her history, but that she did not recall
what the questions were. (Exhibit F 248). She testified “if they asked me, I would have told
them” but also stated that “at that current time, that [GERD] was not going on” and she had
no reason to volunteer the information. (Id. at 249) GERD was not reported by plaintiff
regardless of the providers appropriate efforts to assess her. Therefore, plaintiff’s expert’s
opinions are not supported by the evidence and it is undisputed that CRNA Weeks asked the
relevant questions and plaintiff did not report GERD.
38. CRNA Weeks performed a review of systems. CRNA Weeks testified that
she asked about heartburn as well as other GI complaints. Plaintiff’s expert fails to provide a
basis for his conclusory opinion that CRNA Weeks failed to do a review of systems.
39. Plaintiff’s expert then opines that medications such as Pepcid should have been
given if plaintiff had reported a history of GERD. Here, it is undisputed that there was no
report of GERD and all the commentary regarding the administration of these medications is
based on a factual predicate that did not occur. Plaintiff’s expert does not opine that these
medications should be provided in every case and the evidence is that they should not be
provided unless there is an indication. (Exhibit A ¶22).
40. Plaintiff’s next opinion is that the CRNA Weeks should have stopped the
procedure and placed plaintiff in the supine position. The fact that plaintiff’s expert believes
that CRNA Weeks should have stopped the procedure contrary to the attending
anesthesiologist’s and attending surgeon’s preference and flipped the patient apparently by
herself shows just how incredible this expert opinion is. Again, it misstates the roles of each
provider in the OR and the practicalities that providers will and should defer to the attending
specialist.
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41. There is absolutely no evidence that CRNA Weeks had the authority to stop
the procedure and move the patient. Dr. Diwan and Dr. Amigud, two attendings, were both in
the room and were responding to plaintiff’s condition. CRNA Weeks did not have authority
to reverse the patient’s positioning and stop the procedure and it is unclear how plaintiff’s
expert believes this could have been accomplished.
42. “General allegations of medical malpractice, merely conclusory and
unsupported by competent evidence tending to establish the essential elements of
malpractice,” are insufficient to defeat a defendant’s entitlement to summary judgment.
Kerrins v. South Nassau Communities Hosp., 2017 NY Slip Op 01683 (2d Dep’t 2017).
43. Here, CRNA Weeks should be granted summary judgment as plaintiff failed to
establish any material issues of fact to support a claim that CRNA Weeks deviated from the
standard of care as the evidence is undisputed that a complete history was obtained and she
lacked authority to stop the procedure.
ii. PLAINTIFF’SEXPERT AFFIRMATION FAILS TO ESTABLISH A GENUINE ISSUE OF
MATERIAL FACT AS TO PROXIMATE CAUSE
44. Plaintiff’s expert opines that an aspiration caused the alleged injuries in this
case. However, plaintiff’s expert cannot and has not opined that an aspiration would not have
occurred had plaintiff advised her providers of her history of GERD and the Pepcid
medications were administered and/or that injury would have not occurred if she was turned
and the procedure was stopped. Further, plaintiff’s opinions are speculative and conclusory as
they do not address what CRNA Weeks specifically did or failed to do to cause any injury.
45. Dr. Albert opined that there is no evidence that any of the anesthesia care was
a proximate cause of the injuries alleged in this case. (Exhibit A at ¶30). There is a risk of
aspiration in ALL anesthesia care. Dr. Albert opined that there was no evidence of aspiration
during the procedure. (Id.) The plaintiff was awoken and plaintiff's vital signs remained
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normal and stable. The patient was able to speak in a normal voice both in the OR and
recovery room, demonstrating that there was no evidence of damage.
46. It is important to keep in context CRNA Weeks actions. The testimony is that
she suctioned the patient, changed the nasal tube, recorded the anesthesia record, and assisted
Dr. Amigud. There is no evidence that the alleged injuries are related to the actions of CRNA
Weeks, except a conclusory opinion by plaintiff’s expert which is insufficient.
47. Plaintiff could have suffered these injuries after CRNA Weeks care at issue
and there is nothing cited to in the plaintiff’s opposition papers to rule out that any injury
could have occurred after the surgical procedure.
48. Accordingly, there is insufficient evidence to establish an issue of material fact
as to proximate cause.
D. PLAINTIFF NEVER ALLEGED A CAUSE OF ACTION FOR RES IPSA LOQUITOR
49. While the doctrine of res ipsa loquitor does not apply to this case, it also was
never asserted in the pleadings. It is long standing law that plaintiff cannot assert a new claim
in response to a summary judgment motion.
50. “The prima facie showing which a defendant must make on a motion for
summary judgment is governed by the allegations of liability made by the plaintiff in the
pleadings.” Fremont Inv. & Loan v. Gentile, 94 AD3d 1046 (2d Dep’t 2012).
51. It is likewise well settled that a plaintiff cannot defeat a motion for summary
judgment by asserting, for the first time in opposition, new theories of liability that were not
previously set forth in the pleadings. Koziar v. Grand Palace Restaurant, 125 AD3d 607 (2d
Dep’t 2015).
52. As res ipsa loquitor was never asserted in the pleadings and discovery is long
closed, the Court must disregard this section of plaintiff’s opposition.
E. THE INFORMED CONSENT CLAIM MUST BE DISMISSED
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53. Plaintiff has asserted a general lack of informed consent claim. This must be
dismissed, as CRNA Weeks was not responsible for obtaining informed consent.
54. Pursuant to New York Public Health Law to establish a cause of action for lack
of informed consent, plaintiff must prove: “(1) that the person providing the professional
treatment failed to disclose alternatives thereto and failed to inform the Patient of reasonably
foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical
practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent
Patient in the same position would not have undergone the treatment if he or she had been
fully informed, and (3) that the lack of informed consent is a proximate cause of the injury.”
Spano v. Bertocci, 299 A.D.2d 335 (2d Dep’t 2002)
55. It is undisputed that Dr. Amigud had the responsibility to obtain informed
consent for the anesthesia care. The forms indicate that he was the provider who signed
confirming that the risks, benefits and alternatives had been discussed. There is no evidence
that CRNA Weeks had this responsibility. (Exhibit I at 39; Exhibit H at 44). While CRNA
Weeks participated in the care, not every single provider who may be in a surgical procedure
is required to obtain a separate informed consent.
56. Further, Dr. Albert has opined that plaintiff was appropriately advised of the
risks, benefits and alternatives of this procedure. (Exhibit A at ¶28). The plaintiff expert does
not opine on this issue other than to improperly conclude that informed consent was not
obtained because hoarseness was not discussed. However, all the risks were discussed.
(Exhibit H at 44-45). Therefore, the informed consent claim must be dismissed.
II. ALL UNOPPOSED CLAIMS MUST BE DISMISSED
57. CRNA Weeks demonstrated a prima facie entitlement to the dismissal of the
claims for a failure to: timely and properly position the patient in the prone or side lying
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position during the Cornerloc procedure, place the patient in the side lying position during the
procedure, place patient in the head down tilt position during the procedure, perform a careful
physical examination, 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 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. Plaintiff did not reference these claims in the opposition and they must be dismissed.
58. Plaintiff’s expert actually disagreed with plaintiff’s claims that CRNA Weeks
failed to properly and timely suction the patient and/or to timely intubate the patient during
the Cornerloc procedure. Dr. Lovich affirmed that intubation was not required and suctioning
was proper. (NYSCEF Doc. 33). Therefore, these claims must be dismissed.
CONCLUSION
59. CRNA Weeks’ motion for summary judgment should be granted, that the
plaintiff’s Complaint be dismissed with prejudice, judgment entered against her, together with
such other and further relief as this Court deems just and proper.
Dated: New York, New York
March 6, 2023
_________________________________
NICOLE S. BARRESI
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CERTIFICATION
I hereby certify pursuant to Uniform Civil Rules for the Supreme Court and the
County Court, Section 202.5 and Section 202.8-b, the foregoing document was prepared on a
computer using Microsoft Word.
Type: A proportionally spaced typeface was used, as follows:
Name of Typeface: Times New Roman
Point Size: 12
Word Count: The total number of words in this AFFIRMATION IN REPLY, inclusive
of point headings and footnotes and exclusive of the caption, table of contents, signature
block, and this Statement is 4,195 words.
The undersigned certifies that, to the best of the undersigned's knowledge, information
and belief, formed after a reasonable inquiry under the circumstances, the presentation of the
within Affirmation in reply is not frivolous as defined in 22 NYCRR §
130-1.1(C)
Dated: New York, New York
March 6, 2023
______________________________
Nicole S. Barresi, Esq.
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FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X BARBARA SACKAROFF, AFFIRMATION IN Plaintiff, REPLY -against- Index No.: 514577/2020 SUDHIR DIWAN, M.D., SUDHIR DIWAN, MD LLC, ORAL ARGUMENT ADVANCED SPINE ON PARK AVENUE MSO, LLC, REQUESTED 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 NICOLE S. BARRESI, an attorney duly admitted to practice in the Courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. I am a member of the firm of MARTIN CLEARWATER & BELL LLP, the attorneys of record for defendant JANDE WEEKS, CRNA (hereafter referred to as “CRNA WEEKS”), and as such, I am familiar with the facts and circumstances herein. 2. I submit this affirmation in further support of the motion by CRNA WEEKS for 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; (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. OVERVIEW 3969355 -1- 1 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 3. On December 16, 2022, CRNA Weeks filed a motion for summary judgment supported by the detailed expert affirmation of anesthesiologist, Dr. David Albert who has decades of experience in anesthesia, as well as experience in surgical care centers and supervising CRNAs. Dr. Albert opined that the care and treatment rendered by CRNA Weeks was within the standard of care and did not proximately cause any injury. This satisfied CRNA Weeks prima face burden. 4. Now in a conclusory late opposition, which was procedurally improper, not specific to CRNA Weeks and comments on her and co-defendant Dr. Amigud’s care indiscriminately, plaintiff attempts to claim that CRNA Weeks failed to meet her burden of proof or that there are issues of fact that preclude summary judgment. In both arguments, plaintiff blatantly obfuscates the plain meaning of the evidence and fails to appreciate controlling law. 5. Accordingly, it is submitted that the Court should grant CRNA Weeks motion for summary judgment. ARGUMENT I. SUMMARY JUDGMENT SHOULD BE GRANTED AS TO CRNA WEEKS A. CRNA WEEKS IS ENTITLED TO SUMMARY JUDGMENT AS SHE DID NOT EXERCISE INDEPENDENT MEDICAL JUDGMENT AND THERE WAS NO DUTY TO INTERVENE 6. CRNA Weeks is entitled to summary judgment based upon the undisputed fact that she was at all times acting under the supervision of Dr. Amigud, was not exercising independent medical judgment and there was no order/direction that was so clearly a deviation from general practice to require CRNA Weeks to intervene. 7. The law in NYS is that medical providers [residents, CRNAs and nurses] providing care under the supervision and direction of an attending physician cannot be liable, even if they played an active role in the treatment, unless they exercised independent medical 4705438 -2- 2 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 judgment or there was such a great deviation from normal medical practice that they are required to intervene. 8. CRNA Weeks is the nurse anesthetist who participated in the anesthesia care during the plaintiff’s Cornerloc procedure on January 7, 2020. CRNAs have credentialing to provide anesthesia services, however, their licensure requires that they must at all times practice under the supervision of an attending physician. 9. According to 10 NYCRR §755.4, which governs the practice of CRNAs in ambulatory surgery centers, “anesthesia services may be administered by a CRNA subject to the fact that the CRNA must be supervised by either an anesthesiologist who is immediately available if needed or the operating physician.” 10. Here, CRNA Weeks was acting under the supervision of the anesthesiology attending, Dr. Amigud. Dr. Amigud testified he was in the OR the entire procedure, obtained a history and consent, and performed his own physical examination. (Exhibit H at 41, 44-46) He testified that “I evaluated the patient and established the fact that no airway compromise was seen,” “I gave the drug to reverse sedation,” and “I decided to react to her symptoms aggressively and in my practice, best way to do it is to diminish the level of sedation.” (Id. at 64, 62, 52). He further testified “I explained to Dr. Diwan, patient coughed up some secretion under sedation... Her airway were examined, her ability to ventilate and her oxygenation levels and chest were checked and there was no established proof of the aspiration had been found and I asked Dr. Diwan if he feels confident in bringing the surgery to completion with the condition that patient stays very mildly sedated and we both agreed this is a good plan.” (Id. at 71). The only time Dr. Amigud mentions CRNA Weeks involvement throughout his deposition is to state that she removed a soiled nasal cannula and that she documented the anesthesia chart. (Id. at 49 and 88). Even plaintiff herself called CRNA Weeks, Dr. Amigud’s assistant. (Exhibit F at 148). 4705438 -3- 3 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 11. CRNA Weeks is a capable medical provider, but it is uncontested that she was acting under the supervision of Dr. Amigud and there is no evidence to suggest that she exercised independent medical judgment during the care at issue. 12. Plaintiff’s arguments that she was exercising independent judgment lack a understanding of the applicable case law. Plaintiff claims that because CRNA Weeks also took her own history, did not have specific discussion with Dr. Amigud regarding assessments of aspiration or the theoretical possibility of acidic injury and/or that she did not consider the brownish secretions to be an “emergent situation” to be evidence that there was independent medical judgment. This is simply not evidence of independent medical judgment. First, it is uncontested that Dr. Amigud took his own history. The fact that CRNA Weeks was a thorough provider and also asked about the plaintiff’s history did not imply that she made independent judgments in this case. Further, the fact that Dr. Amigud did not discuss his assessments for aspiration and/or the possibility of an acidic injury with CRNA Weeks again supports that Dr. Amigud was in charge of the care and CRNA Weeks was acting under his direction. Last, the fact that she and Dr. Amigud may have characterized whether secretions are “emergent” in different words is irrelevant because the testimony is clear that Dr. Amigud made the relevant decisions in this case. 13. 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). 14. In Toth v. Community Hospital 22 N.Y.2d 255, 265 (N.Y. 1968) the Court stated that: “The primary duty of a hospital's nursing staff is to follow the physician's orders… nurses are not authorized to determine for themselves what is a proper course of medical 4705438 -4- 4 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 treatment. They may not invade the area of the physician's competence and authority to overrule his orders. 15. CRNA Weeks care is comparable to the Second Department’s decision in Soto v. Andaz, 8 AD3d 470 (2d Dep’t 2004). There, a resident performed part of the surgery at the attending’s direction, including dissecting a cystic duct. In reversing the trial court’s denial of summary judgment, the Second Department held that the resident had demonstrated entitlement to summary judgment and that “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. Plaintiff tellingly has cited no law in making her conclusory arguments and has provided no explanation for how this case is not controlling precedent. 16. In Crawford v. Sorkin, 41 AD3d 278 (2d Dep’t 2007), the Second Department concluded that even a resident’s status as “night chief resident” was not enough to impute liability to a resident. Here, a resident was providing care, taking histories, and interpreting lab values, not with the attending, but under the supervision of one. Again, this precedent encompasses this situation where CRNA Weeks was participating in the medical care that was directed by an attending anesthesiologist, who was present in the OR at all times and testified that he made the relevant decisions and took his own history of the patient. 17. The Appellate Division has made clear that active participation does not imply independent medical judgment and that something additional is required beyond performing part of a surgery or performing evaluations. CRNA Weeks was not making independent medical judgments and should be dismissed from this case. 18. There is also no evidence to support plaintiff’s suggestion that the medical care rendered so greatly deviated from the standard of care that CRNA Weeks had a duty to intervene. The circumstances to implicate a duty to intervene are beyond a general claim of 4705438 -5- 5 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 negligence and are more akin to recklessness or strict liability claims. While again plaintiff provides this Court absolutely no legal basis to support their conclusory argument, this case is similar to Walter v. Betancourt, 283 A.D. 2d 223 (NY App. Div. 2001), where a resident assisted in positioning a mother during the delivery where there was a shoulder dystocia. The Court found that participating in a procedure/delivery, while acting under the direction of an attending whose care the plaintiff was critical of, was not evidence that the attending’s orders were so “clearly contraindicated.” Courts have held that the conduct needs to rise to a level to where there is an obligation to confirm or further investigate the order to determine if there was an error. The First Department held there was an issue of fact as to if the orders were so contraindicated where there was evidence that silk sutures were used where there was a prohibition against using this material. Warney v. Haddad, 237 AD 2d 123 (1st Dep’t 1997). The Second Department found an issue of fact in Somoza v. St. Vincent’s Hospital and Medical Center, 192 A.D.2d 429 (1st Dept. 1993) where a resident carried out an attending’s order to discharge the mother without a further examination despite evidence that the mother may soon go into premature labor. Here, there are no such aggravating factors. 19. Plaintiff’s opposition obfuscates the testimony to try to suggest that orders/actions by Dr. Amigud were clearly contraindicated. This demonstrates the clear lack of awareness of how a surgical center operates, defies common sense, and seeks to create new law. Plaintiff’s expert states that both defendants had a responsibility to stop the procedure. This statement is impermissibly vague, conclusory and it is unclear what plaintiff’s expert is opining that CRNA Weeks could/should do. The surgery was ongoing and it cannot be credibly stated that a CRNA has a duty to override two attendings who are closely managing the care, single handedly stopped the surgery and flipped the patient where the attending felt there was no risk for aspiration and the patient was stable. Plaintiff has not indicated how this 4705438 -6- 6 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 should have been done (i.e. whether she should have jumped in front of the attending, called some unidentified person, etc.) 20. Plaintiff allegations that the supervision and roles of the parties was “undefined” is unfounded. Dr. Amigud was an attending anesthesiologist and Ms. Weeks was a CRNA. These are clearly defined roles and the fact that plaintiff’s expert cannot identify the roles/responsibilities renders his opinions speculative and unreliable. Plaintiff’s expert concludes that “Nurse Weeks displayed some independent medical judgment in her care with plaintiff.” There is not one citation to the record to support this conclusion, and plaintiff failed to set forth any intervention that CRNA Weeks used independent medical judgment in performing. This is the conclusory types of opinions that are precluded from creating an issue of material fact. 21. Accordingly, CRNA Weeks must be dismissed from this case because there is no evidence that she exercised independent judgment or that she carried out any identified action that was so clearly contraindicated that it imputed a duty to intervene. B. CRNA WEEKS MET HER PRIMA FACIE BURDEN THROUGH THE EXPERT AFFIRMATION OF DR. ALBERT 22. In support of the motion for summary judgment, CRNA Weeks served an expert affirmation by an anesthesiologist with decades of experience in anesthesia and supervision of CRNAs, who directly cited to the records and testimony. Plaintiff’s claims that CRNA Weeks failed to meet her burden by claiming that Dr. Albert’s expert affirmation is speculative and conclusory which demonstrates the lack of credibility to plaintiff’s opposition. 23. Dr. Albert’s expert opinion is far from speculative and cites to the records and testimony for every factual statement. This objection can only realistically be a form objection or a grasping attempt to obscure the obvious. 4705438 -7- 7 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 24. Plaintiff then attempts to argue that there because there are inconsistencies in the recollections of the parties years later as to irrelevant details that this renders Dr. Albert’s opinion to be speculation. Plaintiff cites, Plato v. Generatne, 54 Ad2 741 (2d Dept. 2009) where the Court denied summary judgment where an expert relied on facts that were disputed, but also made no reference to important parts of the record. Here, the key portions of the record are discussed in detail by Dr. Albert in his 14-page affidavit. 25. Here, CRNA Weeks met her prima facie burden. C. SUMMARY JUDGMENT IS WARRANTED AS TO CRNA WEEKS 26. Plaintiff served a late opposition supported by an expert affirmation that fails to render an opinion that can be considered by this Court. 27. Here, plaintiff submitted an Affidavit signed by Dr. Lovich, an anesthesiologist in Massachusetts. There is no accompanying Certificate of Conformity with the affidavit and it should be disregarded by the Court for failure to comply with the mandates of CPLR § 2309 (c). 28. Further, plaintiff’s counsel requested an adjournment of the January 24, 2023 return date. Defense counsel consented and in the stipulation, plaintiff agreed to serve opposition by February 14, 2023. (NYSCEF Doc. 106). Despite agreeing to the briefing schedule, plaintiff missed the deadline to oppose the motion by two weeks. 29. Plaintiff has treated the Court requirements and deadlines as mere suggestions and not rules to be followed. Accordingly, CRNA Weeks’ motion should be granted as unopposed. i. PLAINTIFF’S EXPERT AFFIRMATION FAILS TO ESTABLISH A GENUINE ISSUE OF MATERIAL FACT AS TO TREATMENT RENDERED BY CRNA WEEKS 30. Pursuant to the relevant summary judgment case law, once the defendants have met their prima facie burden, plaintiff must show through an expert that there are material 4705438 -8- 8 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 issues of fact that require a trial of this matter. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). CRNA Weeks has satisfied her burden, and plaintiff has been unable to demonstrate any material issues of fact. 31. Plaintiff submitted an affirmation by Dr. Lovich who provides no basis to indicate that he is familiar with the standard of care for a CRNA and makes many misstatements about her role. 32. Where a physician opines outside of his or her area of specialization, a foundation must be laid to support the reliability of the opinion rendered. Mustello v. Berg, 44 A,D,3d 1018 (2d Dep’t, 2007). Here, Dr. Lovich does not state that he is aware of the role and/or standards of care applicable to a CRNA. Accordingly, Dr. Lovich’s opinion should be rejected as he failed to lay the proper foundation. 33. Even if the Court deems the expert able to comment on the care of CRNA Weeks, plaintiff’s expert rendered improperly speculative opinions that are insufficient to create an issue of material fact. 34. Plaintiff expert opines that there were two deviations specific to CRNA Weeks: (1) failure to take a history as it pertains to GERD and (2) failure to stop the procedure and turn the plaintiff supine upon discovering the secretions. 35. Here, CRNA Weeks took a complete history and there is no evidence that CRNA Weeks had the authority to stop a procedure. Therefore, neither of these constitute issues of material fact. 36. Plaintiff’s expert’s opinion is based on the incorrect assumption that plaintiff was never asked about GERD. The evidence demonstrates that this is an incorrect assumption. CRNA Weeks took a complete history and documented plaintiff’s medical history, medications, allergies, and surgical history and if plaintiff had any anesthesia issues in the past. (Exhibit I 42). 4705438 -9- 9 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 37. Plaintiff failed to report a history of gastroesophageal reflux and admitted that Dr. Amigud and CRNA Weeks asked questions about her history, but that she did not recall what the questions were. (Exhibit F 248). She testified “if they asked me, I would have told them” but also stated that “at that current time, that [GERD] was not going on” and she had no reason to volunteer the information. (Id. at 249) GERD was not reported by plaintiff regardless of the providers appropriate efforts to assess her. Therefore, plaintiff’s expert’s opinions are not supported by the evidence and it is undisputed that CRNA Weeks asked the relevant questions and plaintiff did not report GERD. 38. CRNA Weeks performed a review of systems. CRNA Weeks testified that she asked about heartburn as well as other GI complaints. Plaintiff’s expert fails to provide a basis for his conclusory opinion that CRNA Weeks failed to do a review of systems. 39. Plaintiff’s expert then opines that medications such as Pepcid should have been given if plaintiff had reported a history of GERD. Here, it is undisputed that there was no report of GERD and all the commentary regarding the administration of these medications is based on a factual predicate that did not occur. Plaintiff’s expert does not opine that these medications should be provided in every case and the evidence is that they should not be provided unless there is an indication. (Exhibit A ¶22). 40. Plaintiff’s next opinion is that the CRNA Weeks should have stopped the procedure and placed plaintiff in the supine position. The fact that plaintiff’s expert believes that CRNA Weeks should have stopped the procedure contrary to the attending anesthesiologist’s and attending surgeon’s preference and flipped the patient apparently by herself shows just how incredible this expert opinion is. Again, it misstates the roles of each provider in the OR and the practicalities that providers will and should defer to the attending specialist. 4705438 - 10 - 10 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 41. There is absolutely no evidence that CRNA Weeks had the authority to stop the procedure and move the patient. Dr. Diwan and Dr. Amigud, two attendings, were both in the room and were responding to plaintiff’s condition. CRNA Weeks did not have authority to reverse the patient’s positioning and stop the procedure and it is unclear how plaintiff’s expert believes this could have been accomplished. 42. “General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of malpractice,” are insufficient to defeat a defendant’s entitlement to summary judgment. Kerrins v. South Nassau Communities Hosp., 2017 NY Slip Op 01683 (2d Dep’t 2017). 43. Here, CRNA Weeks should be granted summary judgment as plaintiff failed to establish any material issues of fact to support a claim that CRNA Weeks deviated from the standard of care as the evidence is undisputed that a complete history was obtained and she lacked authority to stop the procedure. ii. PLAINTIFF’SEXPERT AFFIRMATION FAILS TO ESTABLISH A GENUINE ISSUE OF MATERIAL FACT AS TO PROXIMATE CAUSE 44. Plaintiff’s expert opines that an aspiration caused the alleged injuries in this case. However, plaintiff’s expert cannot and has not opined that an aspiration would not have occurred had plaintiff advised her providers of her history of GERD and the Pepcid medications were administered and/or that injury would have not occurred if she was turned and the procedure was stopped. Further, plaintiff’s opinions are speculative and conclusory as they do not address what CRNA Weeks specifically did or failed to do to cause any injury. 45. Dr. Albert opined that there is no evidence that any of the anesthesia care was a proximate cause of the injuries alleged in this case. (Exhibit A at ¶30). There is a risk of aspiration in ALL anesthesia care. Dr. Albert opined that there was no evidence of aspiration during the procedure. (Id.) The plaintiff was awoken and plaintiff's vital signs remained 4705438 - 11 - 11 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 normal and stable. The patient was able to speak in a normal voice both in the OR and recovery room, demonstrating that there was no evidence of damage. 46. It is important to keep in context CRNA Weeks actions. The testimony is that she suctioned the patient, changed the nasal tube, recorded the anesthesia record, and assisted Dr. Amigud. There is no evidence that the alleged injuries are related to the actions of CRNA Weeks, except a conclusory opinion by plaintiff’s expert which is insufficient. 47. Plaintiff could have suffered these injuries after CRNA Weeks care at issue and there is nothing cited to in the plaintiff’s opposition papers to rule out that any injury could have occurred after the surgical procedure. 48. Accordingly, there is insufficient evidence to establish an issue of material fact as to proximate cause. D. PLAINTIFF NEVER ALLEGED A CAUSE OF ACTION FOR RES IPSA LOQUITOR 49. While the doctrine of res ipsa loquitor does not apply to this case, it also was never asserted in the pleadings. It is long standing law that plaintiff cannot assert a new claim in response to a summary judgment motion. 50. “The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings.” Fremont Inv. & Loan v. Gentile, 94 AD3d 1046 (2d Dep’t 2012). 51. It is likewise well settled that a plaintiff cannot defeat a motion for summary judgment by asserting, for the first time in opposition, new theories of liability that were not previously set forth in the pleadings. Koziar v. Grand Palace Restaurant, 125 AD3d 607 (2d Dep’t 2015). 52. As res ipsa loquitor was never asserted in the pleadings and discovery is long closed, the Court must disregard this section of plaintiff’s opposition. E. THE INFORMED CONSENT CLAIM MUST BE DISMISSED 4705438 - 12 - 12 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 53. Plaintiff has asserted a general lack of informed consent claim. This must be dismissed, as CRNA Weeks was not responsible for obtaining informed consent. 54. Pursuant to New York Public Health Law to establish a cause of action for lack of informed consent, plaintiff must prove: “(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the Patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent Patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury.” Spano v. Bertocci, 299 A.D.2d 335 (2d Dep’t 2002) 55. It is undisputed that Dr. Amigud had the responsibility to obtain informed consent for the anesthesia care. The forms indicate that he was the provider who signed confirming that the risks, benefits and alternatives had been discussed. There is no evidence that CRNA Weeks had this responsibility. (Exhibit I at 39; Exhibit H at 44). While CRNA Weeks participated in the care, not every single provider who may be in a surgical procedure is required to obtain a separate informed consent. 56. Further, Dr. Albert has opined that plaintiff was appropriately advised of the risks, benefits and alternatives of this procedure. (Exhibit A at ¶28). The plaintiff expert does not opine on this issue other than to improperly conclude that informed consent was not obtained because hoarseness was not discussed. However, all the risks were discussed. (Exhibit H at 44-45). Therefore, the informed consent claim must be dismissed. II. ALL UNOPPOSED CLAIMS MUST BE DISMISSED 57. CRNA Weeks demonstrated a prima facie entitlement to the dismissal of the claims for a failure to: timely and properly position the patient in the prone or side lying 4705438 - 13 - 13 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 position during the Cornerloc procedure, place the patient in the side lying position during the procedure, place patient in the head down tilt position during the procedure, perform a careful physical examination, 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 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. Plaintiff did not reference these claims in the opposition and they must be dismissed. 58. Plaintiff’s expert actually disagreed with plaintiff’s claims that CRNA Weeks failed to properly and timely suction the patient and/or to timely intubate the patient during the Cornerloc procedure. Dr. Lovich affirmed that intubation was not required and suctioning was proper. (NYSCEF Doc. 33). Therefore, these claims must be dismissed. CONCLUSION 59. CRNA Weeks’ motion for summary judgment should be granted, that the plaintiff’s Complaint be dismissed with prejudice, judgment entered against her, together with such other and further relief as this Court deems just and proper. Dated: New York, New York March 6, 2023 _________________________________ NICOLE S. BARRESI 4705438 - 14 - 14 of 15 FILED: KINGS COUNTY CLERK 03/06/2023 07:11 PM INDEX NO. 514577/2020 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 03/06/2023 CERTIFICATION I hereby certify pursuant to Uniform Civil Rules for the Supreme Court and the County Court, Section 202.5 and Section 202.8-b, the foregoing document was prepared on a computer using Microsoft Word. Type: A proportionally spaced typeface was used, as follows: Name of Typeface: Times New Roman Point Size: 12 Word Count: The total number of words in this AFFIRMATION IN REPLY, inclusive of point headings and footnotes and exclusive of the caption, table of contents, signature block, and this Statement is 4,195 words. The undersigned certifies that, to the best of the undersigned's knowledge, information and belief, formed after a reasonable inquiry under the circumstances, the presentation of the within Affirmation in reply is not frivolous as defined in 22 NYCRR § 130-1.1(C) Dated: New York, New York March 6, 2023 ______________________________ Nicole S. Barresi, Esq. 4705438 - 15 - 15 of 15