Preview
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1
1 SUPREME COURT OF THE STATE OF NEW YORK
2 COUNTY OF NEW YORK : CIVIL TERM : Part 30
3 ----------------------------------------------x
4 LINDA FISCH AND CHARLES FISCH,
Index: 805275/2020
5 Plaintiffs,
6 -against-
7 CONSTANTINOS HADJIPANAYIS, M.D.
MOUNT SINAI MEDICAL CENTER,
8 MOUNT SINAI HEALTH SYSTEM, INC. AND ICAHN
SCHOOL OF MEDICINE AT MOUNT SINAI,
9
Defendants.
10
----------------------------------------------x
11 Microsoft Teams conference
July 25, 2023
12
B E F O R E: HONORABLE JUDITH REEVES Mc MAHON, SCJ
13
14 A P P E A R A N C E S:
15
MERSON LAW, PLLC
16 attorneys for the Plaintiffs
950 Third Avenue, 18th Floor
17 New York, New York 10022
BY: NATHAN WERKSMAN, ESQ.
18
19
HEIDELL, PITTONI, MURPHY & BACH, LLP
20 attorneys for the Defendants
99 Park Avenue
21 New York, New York 10016
BY: ERIN KELLEY, ESQ.
22
23
24
Michael Ranita
25 Senior Court Reporter
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1 THE COURT: Okay, we'll begin. We have everybody
2 here.
3 MS. KELLEY: We do. And, your Honor, this is on
4 the record; correct?
5 THE COURT: Yes, it is, of course.
6 MS. KELLEY: Thank you. Perfect.
7 THE COURT: It always is, Ms. Kelley, okay?
8 MS. KELLEY: Good to know. Thank you. Thank you.
9 I appreciate that.
10 THE COURT: This is the case of --
11 MS. KELLEY: Your Honor -- I'm sorry.
12 THE COURT: Excuse me, please, Ms. Kelley. Let's
13 go on the record and let's begin, okay?
14 This is the case of Linda Fisch et al. versus
15 Constantinos Hadjipanayis, M.D. et al., index number 805275
16 of 2020.
17 Appearances on the record. Plaintiff first.
18 MR. WERKSMAN: Nathan Werksman from Merson Law, on
19 behalf of plaintiffs Linda and Charles Fisch.
20 THE COURT: For defendants.
21 MS. KELLEY: Erin Kelley from Heidell, Pittoni,
22 Murphy & Bach, on behalf of Dr. Hadjipanayis, Mount Sinai
23 Hospital, and Icahn School of Medicine at Mount Sinai.
24 THE COURT: Very good. And Ms. Kelley, this is
25 your motion to dismiss the complaint against the defendants.
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1 So please indicate why that should occur.
2 MS. KELLEY: Sure, your Honor. Thank you.
3 Your Honor, this case involved four claims
4 primarily. The claims are that Dr. Hadjipanayis and the
5 other defendants improperly recommended surgical
6 interventions to Mrs. Fisch for her colloid cyst; that there
7 was a lacked of informed consent pertaining to this
8 procedure; that the procedure was improperly performed, and
9 then the fourth claim is that there was negligent hiring and
10 supervision.
11 Your Honor, it's not in dispute that plaintiff had
12 a colloid cyst. A colloid cyst is a non-cancerous tumor
13 that's located in third ventricle of the brain. According
14 to our expert, neurosurgeon Mark Souweidane,
15 S-O-U-W-E-I-D-A-N-E, according to Dr. Souweidane, these
16 types of tumors, although they are non-cancerous, have a
17 very high risk for deterioration immortality. This is
18 because these cysts, if they grow, they could end up
19 blocking the drainage of cerebrospinal fluid, which results
20 in hydrocephalus. What results is, because of this
21 increased fluid in the brain, this increased cerebrospinal
22 fluid in the brain, the ventricles in the brain end up
23 enlarging to accommodate it. And what that causes is
24 compression of the brain from within, and it can result in
25 brain tissue damage, and sudden death as a result.
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1 As I indicated earlier, one of the claims in this
2 case is that Dr. Hadjipanayis improperly recommended surgery
3 to Mrs. Fisch as it pertains to her colloid cyst.
4 Specifically, he recommended that she have it surgically
5 removed.
6 It's our position that Mrs. Fisch was an
7 appropriate physical candidate in this case and that
8 Dr. Hadjipanayis was absolutely well within the standard of
9 care for recommending this type of procedure to her.
10 Our expert has opined, and of significance,
11 plaintiff's expert also agrees that there are essentially
12 three parameters for determining whether or not a patient
13 should undergo surgical -- um, intervention to for this type
14 of cyst.
15 Those three parameters are, number one, if the
16 patient is symptomatic. Number two, if the cyst is growing.
17 And number three, if there is an enlargement of the
18 ventricles.
19 Now, in determining whether or not a patient is
20 symptomatic, there are three classic or hallmark signs to
21 determine that a patient is symptomatic. According to our
22 expert, Dr. Souweidane, these symptoms or hallmark signs are
23 memory loss, syncope, which is the loss of consciousness,
24 and hydrocephalus.
25 In our motion, we addressed all three hallmark
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1 signs and symptoms. We addressed the fact that Mrs. Fisch
2 had preoperative memory loss. She experienced an episode
3 and syncope, and she also had hydrocephalus, which is not
4 disputed by plaintiff's Counsel or his expert, um, this
5 hydrocephalus was demonstrated on her imaging studies
6 preoperatively.
7 In response, plaintiff only focused on the facts --
8 excuse me. Plaintiff only focused on memory loss, and made
9 an issue of whether or not Mrs. Fisch had, in fact,
10 preoperative memory loss. The expert never addressed
11 syncope or hydrocephalus. No, our expert never said you
12 needed all three symptoms in order to be considered
13 symptomatic. Our expert said there are three hallmark
14 symptoms. And, in fact, like I said, she did, in fact, have
15 syncope, and she had hydrocephalus.
16 Also, plaintiff's expert does not refute our
17 expert, Dr. Souweidane's assertion, that once a patient has
18 hydrocephalus or demonstrates hydrocephalus, the risk of
19 sudden death becomes even greater, as does the risk of a
20 cognitive dysfunction.
21 Number two, the second parameter or requirement, if
22 you will, in determining whether or not a patient should
23 undergo surgical resection of the cyst is whether or not
24 there is growth of the --
25 THE COURT REPORTER: I'm sorry, Counsel, I didn't
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1 hear the end. "Whether or not there is" --
2 THE COURT: Growth.
3 MS. KELLEY: Thank you for checking. Whether or
4 not there is growth of the cyst.
5 THE COURT: Didn't the plaintiff and her husband,
6 when she initially met with the defendant doctor, did they
7 complain of memory loss at that point?
8 MS. KELLEY: They did, your Honor. It's noted in
9 the records. In fact, at the very first consultation with
10 Dr. Hadjipanayis, only Mrs. Fisch was present, in person.
11 Her husband was on the telephone though during that
12 appointment, and he reported. He actually was the one that
13 reported her having memory loss. It's in the records.
14 However, plaintiff has submitted an affidavit from
15 Mrs. Fisch in opposition to the motion for summary judgment.
16 He also has submitted both plaintiffs' deposition testimony
17 asserting that she did not have any memory loss prior to the
18 procedure. Also, he submitted Ms. Neuman's, their
19 daughter's deposition transcript in further support of his
20 proposition that she did not have any memory loss.
21 Your Honor, I would just make a side note that
22 Ms. Neuman's deposition transcript should not be considered
23 whatsoever because it's not in admissible form. It was not
24 signed, nor is there any evidence indicating that it was
25 forwarded to her with the request that she review it, make
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1 sure that it's accurate, and execute it and return it to
2 plaintiff's Counsel. And pursuant to the case law, that
3 must be done in order for it be to be considered admissible.
4 So I would just ask that the Court not consider Ms. Neuman's
5 deposition transcript.
6 But, um, so we talked about the symptoms. The
7 second prong of determining whether or not the surgery is
8 warranted is whether or not there is growth. We had this
9 case reviewed by a neuroradiology expert, your Honor.
10 Elizabeth Lustrin, who is a board certified
11 neuroradiologist, affirmed, to a reasonable degree of
12 medical certainty, that after reviewing the film, all of the
13 films in this case, beginning in May 2009 to March 2018, she
14 agreed that there was growth of this cyst. However,
15 plaintiff makes blatantly false statements in his opposition
16 in order to support the proposition that the cyst did not
17 grow.
18 First of all, plaintiff's expert is a neurosurgeon.
19 They did not submit an expert affirmation from a
20 neuroradiologist. But one of the false statements that
21 plaintiff makes in support of his proposition that the cyst
22 did not grow is that he cites to a radiology report from
23 January 18th, 2018, and he actually notes -- I have it in
24 quotes, your Honor, here on page 13 of plaintiff's expert
25 affirmation at paragraph 26. Plaintiff's expert states, and
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1 I quote, "The CT imaging taken in the emergency room on
2 January 18th, 2018 explicitly reported that the cyst was
3 stable in size since 2009," end quote.
4 If your Honor permits, I would like to share -- I
5 would like to actually share with the Court that radiology
6 report. May I, your Honor?
7 THE COURT: Absolutely.
8 MS. KELLEY: This is off the record.
9 (Whereupon, there is a discussion held off the
10 record among the Court and Counsel.)
11 THE COURT: Do you want to just read it into the
12 record?
13 MS. KELLEY: May I, your Honor?
14 THE COURT: Yes. Go ahead.
15 MS. KELLEY: Thank you so much. So this -- let me
16 just pull it up. So this report, first of all, indicates
17 that it was compared to a prior study that was performed on
18 February 10th, 2017. There is no mention of any studies
19 done in 2009.
20 With respect to the colloid cyst this report
21 states, quote, "Again, demonstrated is an eight millimeter
22 hyperdense structure at the level of the foramen Monro",
23 capital M-o-n-r-o, "consistent with a colloid cyst." That
24 is all that is mentioned about the colloid cyst. It does
25 not mention, like I said, any studies that were done in
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1 2009. There is no comparison of sizing. So for plaintiff's
2 expert to say that the CT imaging, this report explicitly
3 reports that the cyst was stable in its size since 2009, is
4 just -- is false.
5 Your Honor, I would also like to note that
6 plaintiff's expert never states in his affirmation that he
7 actually reviewed the films himself and made measurements
8 and things of that nature. He relies solely on the reports.
9 And it's these misinterpretations of the reports and
10 mischaracterizations of the reports, and his own
11 misconstruing of the reports that he believes makes
12 Mrs. Fisch an unsuitable candidate for surgical
13 intervention, when that's just not correct.
14 Another thing that plaintiff's expert has pointed
15 out is that with respect to the imaging and whether or not
16 the cyst grew, plaintiff only compares the imaging from 2017
17 and 2018. Plaintiff's expert does not go back and review
18 the imaging from 2009.
19 Furthermore, your Honor, with respect to -- not
20 only does Dr. Lustrin opine that based upon her review from
21 the films from 2009 all the way through to 2018, that the
22 cyst, in fact, grew during this interval, it previously was
23 reported in 2017 and two thousand -- January of 2018 as
24 being eight millimeters. March 5th, 2018 it's now noted to
25 be approximately nine millimeters. So it's entirely
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1 disingenuous for plaintiff's expert to say the cyst did not
2 grow during this interval.
3 Plaintiff's expert makes a big deal in the report
4 from March 5th, 2018 because it states that the cyst is
5 stable in appearance compared to 2017 and in 2009. However,
6 appearance does not equate with size, your Honor.
7 Appearances is whether or not a cyst appears hyperdense,
8 hypodense, homogeneous, et cetera. In fact, they made a
9 distinction here, they -- they cite separate and apart from
10 the appearance in this report, and again, I note it was nine
11 millimeters on March 5th, 2018, January 18, 2018, two months
12 earlier, less than two months earlier, it was noted to be
13 eight millimeters.
14 Your Honor, then I move onto the third prong as to
15 whether or not surgical intervention is warranted, and
16 that's whether or not there was enlargement of ventricles.
17 Again, plaintiff's expert here does not state that he or she
18 reviewed the films and made his or her own measurements in
19 order to compare whether or not there was growth. He or she
20 simply relies on the radiology studies.
21 What is most important is if your Honor reviews
22 plaintiff's opposition, you will see that plaintiff's expert
23 only refers to studies that were done in 2018, that were
24 compared to prior studies that were done in 2017.
25 For example, plaintiff's expert notes that the
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1 radiology report of the CAT scan that was performed on
2 January 18, 2018, which I just read to the court, shows
3 prominent ventricles that are unchanged from a prior CT
4 scan. It is noted that that prior CT scan was done, as I
5 said earlier, on February 10th, 2017. All this proves is
6 that the ventricles were unproved -- unchanged from the year
7 earlier. There is absolutely no discussion, or analysis, or
8 a thought process from plaintiff's expert as to what
9 happened between 2009 to 2018 with those ventricles.
10 Dr. Lustrin actually performed measurements, her
11 own measurements of the ventricles on the films from 2009
12 and compared them to the films from January 18, 2018, and
13 found that the ventricles did, indeed, enlarge. In fact,
14 there was an area of the ventricles -- one area, that
15 actually doubled in size, and that's noted in her
16 affirmation.
17 Your Honor, so at this point it is our position
18 that this patient was a suitable surgical candidate, and it
19 was entirely appropriate for Dr. Hadjipanayis to recommend
20 surgery to her. Again, because she was -- she met all three
21 criteria. She was symptomatic. We discussed the fact that
22 she had hydrocephalus and syncope. There was growth of the
23 cyst during the interval from 2009 to 2018, which
24 plaintiff's expert, again, has just misconstrued the
25 radiology reports to make them fit his or her theory.
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1 And, again, with the last prong, there was
2 enlargement of ventricles. Which, again, Dr. Lustrin
3 opined, and which plaintiff's Counsel did not refute. He or
4 she only was able to establish that the ventricles were
5 stable from 2017 to 2018.
6 We then move to the second claim of this case,
7 which is the lack of informed consent. It is our position
8 that Dr. Hadjipanayis is entitled to summary judgment on
9 this claim. As the Court knows, to prevail on this claim it
10 must be shown that the provider conveyed the risks, benefits
11 and alternatives to the patient, and that a reasonable
12 prudent patient would not have undergone the procedure or
13 the treatment if fully informed of the risks.
14 One of the contentions of plaintiff is that
15 Dr. Hadjipanayis did not put forth any alternative to
16 Mrs. Fisch. Plaintiff's expert set forth in his or her
17 affirmation that an alternative in this case would or
18 should've been serial studies. But, your Honor, it is our
19 position that there was no alternative available to
20 Mrs. Fisch at this point. The treatment that she was
21 undergoing at that time essentially consisted of the
22 alternative, the very alternative the plaintiff's expert is
23 saying should've been done, which is monitoring through
24 surveillance studies to watch for whether or not there was
25 enlarging ventricles, and whether or not there was growth of
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1 a cyst. And, in fact, there was growth of the cyst and
2 there was enlargement of the ventricles, and so of course
3 surgery was necessary. So there were no other alternatives
4 available to Mrs. Fisch.
5 Also, I would like to point out to the Court that
6 surgical intervention was necessary in this case because of
7 the risk of sudden death. Because of that risk of sudden
8 death, there were, again, no alternatives available.
9 Plaintiff's Counsel attempts to create an issue as
10 to whether or not Mrs. Fisch was advised appropriately of
11 the risks of the procedure.
12 THE COURT: I think we should refer that to
13 Mrs. Fisch's affidavit.
14 MS. KELLEY: Okay.
15 THE COURT: She put in -- what she put in, which is
16 dated June 13th of 2023, which plaintiff has submitted, um,
17 just to say in there a cause of action for informed consent,
18 but I just wanted -- there is an affidavit here, in addition
19 to her deposition. But you may continue, Ms. Kelley.
20 MS. KELLEY: Thank you, your Honor.
21 It is plaintiff, Mrs. Fisch, and Mr. Fisch as well,
22 it is their contention that they were not advised of various
23 risks of the procedure. And it's their contention that had
24 Mrs. Fisch been advised of such risk, she would not have
25 undergone this procedure that was recommended by
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1 Dr. Hadjipanayis. However, what is clear and what is not
2 disputed by any of the parties, is that Mrs. Fisch and
3 Mr. Fisch were both advised of the risk of sudden death if
4 Mrs. Fisch did not undergo the surgery recommended by
5 Dr. Hadjipanayis. Because of this risk of sudden death
6 without undergoing that surgical intervention, it is almost
7 absurd to argue on behalf of plaintiff that a reasonably
8 prudent person facing this possible outcome would not
9 undergo this procedure, even if advised of all the risks.
10 In fact, in the alternative -- in fact, a
11 reasonably prudent person instead, facing the possible
12 outcome of sudden death, even if advised of all the risks,
13 would have undergone the procedure. And that is our
14 position, your Honor.
15 The third claim in this case is that
16 Dr. Hadjipanayis improperly performed the surgery. Now,
17 that is only touched upon in expert -- in plaintiff's expert
18 affirmation. Dr. Souweidane affirmed to a reasonable degree
19 of medical certainty that Dr. Hadjipanayis exhibited
20 appropriate surgical techniques and that there were no
21 intraoperative departures from the standard of care.
22 Plaintiff, in response, states simply that the
23 surgery was improperly performed, and that as a result,
24 Mrs. Fisch suffered injury. Of note, this is a conclusory
25 statement because plaintiff does not -- plaintiff's expert
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1 does not set forth what the standard of care required in the
2 performance of the surgery. Nor does plaintiff's expert set
3 forth how Dr. Hadjipanayis departed from that standard of
4 care. Nor does plaintiff's expert then set forth how the
5 injuries that Mrs. Fisch allegedly sustained were caused by
6 those unknown departures. In fact, your Honor, plaintiff's
7 expert states that the injuries that, um, many of
8 Mrs. Fisch's injuries are well-known and accepted risks of
9 the procedure. And Dr. Souweidane opined that -- equally
10 opined that they are well-known and accepted risks of the
11 procedure that occur in the absence of negligence. So that
12 claim must also be dismissed, your Honor, because it's
13 conclusory. And at the same time plaintiff's expert
14 concedes that the injuries are well-known and established
15 risks of the procedure that can happen in the outcome of the
16 surgery.
17 Your Honor, the final claim is a negligent hiring
18 claim. In order to meet this burden, plaintiff, um, through
19 expert testimony -- through his expert affirmation must be
20 able to prove that there was negligent conduct on the part
21 of Dr. Hadjipanayis, and the other defendants, that the
22 hospital and Icahn School of Medicine were aware of and
23 chose to ignore that resulted in plaintiff's injuries.
24 Now, we argued in support of Dr. Hadjipanayis and
25 the defendant -- other defendants, that there was no such
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1 negligent conduct that Dr. Hadjipanayis or the other
2 defendants engaged in, and certainly nothing that the
3 hospital staff or Icahn School of Medicine was aware of and
4 chose to ignore, that resulted in the plaintiff's injuries.
5 Plaintiff's expert affirmation, and even his memo
6 of law, is entirely silent on this claim. And as such, the
7 defendants should be granted summary judgment on this claim.
8 Not only on this claim, your Honor, but overall in sum, all
9 four claims should be dismissed as to the defendants. And
10 if the Court finds that all four claims should, in fact, be
11 dismissed as to the defendants, then obviously Mr. Fisch's
12 derivative claim should be dismissed as well.
13 Thank you.
14 THE COURT: Thank you, Ms. Kelley.
15 Mr. Werksman.
16 MR. WERKSMAN: Thank you, your Honor. If your
17 Honor would like me to address specific points, I'm happy to
18 do so, otherwise I'll just kind of --
19 THE COURT: Let me do some housekeeping. Do you
20 agree with Ms. Kelley as to the negligent hiring claim?
21 MR. WERKSMAN: Yes. Except what I would add is
22 that Dr. Hadjipanayis undisputedly an employee of --
23 THE COURT: Yes.
24 MR. WERKSMAN: -- Mount Sinai Hospital. But I do
25 agree with Ms. Kelley with regard to the negligent hiring
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1 claim.
2 THE COURT: I do as well. I think we could say
3 that if this Court finds any question of fact as to
4 Dr. Hadjipanayis, then Mount Sinai Medical Center would be,
5 um, only vicariously responsible for anything that he would
6 have done, if anything.
7 Do we agree with that?
8 MR. WERKSMAN: Well, your Honor, I --
9 THE COURT: Who was he employed with? Who is his
10 employer?
11 MR. WERKSMAN: He was an employee of Mount Sinai
12 Hospital.
13 THE COURT: Yes. Yes, exactly.
14 MR. WERKSMAN: He testified to that in his
15 deposition. So, you know, I would argue he was -- the work
16 he was doing was within the course and scope of his
17 employment. Not only are they vicariously liable, but they
18 are liable for his acts. It's not just --
19 THE COURT: That's what vicarious responsibility
20 is, sir. That's what vicarious responsibility is.
21 MR. WERKSMAN: I agree with that.
22 THE COURT: That's what vicarious responsibility
23 is. That's what it is.
24 What Ms. Kelley was arguing and I don't know if you
25 agree with her, is that there were no direct claims as to --
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1 MR. WERKSMAN: I agree with that.
2 THE COURT: Okay, you both agree with that. Okay.
3 MR. WERKSMAN: Yes.
4 MS. KELLEY: Your Honor, I'm sorry, because --
5 THE COURT: What I said is that I agree with you is
6 that there are no direct claims as to the hospital, okay,
7 that were made out in these papers, okay? So that is
8 correct. So any direct claims that they might have had are
9 dismissed as to the hospital.
10 The hospital would only be vicariously responsible
11 for this defendant doctor if we get -- if we find that there
12 is a question of fact, okay? Do you see what I'm saying?
13 MS. KELLEY: I do, your Honor. Thank you. What
14 about Icahn School of Medicine?
15 THE COURT: Yes. I want to get -- I'm just trying
16 to get the housekeeping.
17 What about the Icahn School of Medicine? He
18 clearly indicated that he was employed by Mount Sinai
19 Medical Center. What about Mount Sinai Health System and
20 Icahn School of Medicine, Mr. Werksman? I don't think your
21 expert even mentions them.
22 MR. WERKSMAN: I agree. I just want to be
23 absolutely certain about the entity that was his employer.
24 I believe it is Mount Sinai Hospital. As to the others --
25 as to the others, I would agree, there are no independent
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1 claims against them. I believe it's Mount Sinai Medical
2 Center is -- was his employer.
3 THE COURT: Do you agree with that, that it is
4 Mount Sinai Medical Center that was his employer?
5 MS. KELLEY: That's what he testified to, your
6 Honor. He testified that it's Mount Sinai Hospital. It was
7 sued as Mount Sinai Medical Center, yes.
8 THE COURT: Okay. So we could agree that Mount
9 Sinai Medical Center was and is the defendant doctor's
10 employer as testified to. Okay?
11 MS. KELLEY: Yes.
12 THE COURT: So -- and then we can agree that Mount
13 Sinai Health System and Icahn School of Medicine at Mount
14 Sinai, which is not mentioned by plaintiff's expert at all,
15 should not be in this case.
16 MS. KELLEY: Your Honor, if I may, just for a
17 little bit of housekeeping, Mount Sinai Health System either
18 did not appear in this action or was discontinued. We do
19 not represent them.
20 THE COURT: Oh, okay. Well, they are out of the
21 case anyway.
22 MS. KELLEY: Right, okay.
23 THE COURT: Okay.
24 MS. KELLEY: Very easy.
25 THE COURT: They are going to be out of the case.
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1 And Icahn School of Medicine, who I do believe you do
2 represent, is also out of this case.
3 MS. KELLEY: That is correct, your Honor.
4 THE COURT: Okay.
5 MR. WERKSMAN: And just to add to that, the
6 defendants answered, I believe, as the Mount Sinai Hospital;
7 is that correct, Ms. Kelley?
8 MS. KELLEY: We did. We entered as Mount Sinai
9 Hospital, sued herein as Mount Sinai Medical Center.
10 MR. WERKSMAN: Okay, okay. So we can agree that
11 Mount Sinai Hospital, the Mount Sinai Hospital is the
12 correct entity that was employed by -- that employed
13 Dr. Hadjipanayis.
14 MS. KELLEY: That's how he testified, yes.
15 MR. WERKSMAN: Okay. And that is the entity that
16 is vicariously liable, should we find issues of fact as to
17 the doctor, which I think we will; is that correct?
18 THE COURT: That would be correct. That would be
19 correct.
20 MR. WERKSMAN: Okay.
21 THE COURT: I'll answer that, Ms. Kelley. That
22 would be correct. That would be correct, Mr. Werksman.
23 MR. WERKSMAN: Thank you.
24 THE COURT: So let me ask you this.
25 MR. WERKSMAN: Please.
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21
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1 THE COURT: Your expert, there are a few questions
2 I have as to your expert. And one of them is, clearly he
3 has indicated that this surgery should not have been
4 performed.
5 MR. WERKSMAN: Correct.
6 THE COURT: But where in his affidavit, if any,
7 does he criticize the performance itself of -- by Dr. -- the
8 defendant doctor, who has a very mellifluous name? I love
9 the name, but I'm not good at saying it. It's such a
10 beautiful name.
11 MS. KELLEY: Could you imagine being a child
12 growing up with that name, I mean the teachers --
13 THE COURT: It's a beautiful name though. Okay.
14 So that's my question. Did he say that in any way, shape or
15 form, that the defendant doctor negligently performed the
16 surgery? Or in the performance of the surgery that he did
17 something wrong?
18 MR. WERKSMAN: Yes. I would direct your Honor's
19 attention to paragraph 19 of plaintiff's expert affirmation.
20 And this generally regards damage to Mrs. Fisch's putamen.
21 I'm not sure if I'm pronouncing that correctly,
22 P-U-T-A-M-E-N. He relies on a note by a neurologist,
23 Dr. Robert April, the notice from a month after, indicating
24 that there is too much tissue damage along the drain track,
25 including the right putamen, where there is a mass effect
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22
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1 and signal changes, all of which are correlated with the
2 cognitive and effective changes constituting this prolonged
3 worrisome encephalopathy.
4 And so the claim there is that Dr. Hadjipanayis's
5 performance of the surgery damaged the putamen, which is
6 responsible for some of Mrs. Fisch's deficits. That is
7 where our expert addresses the actual performance of the
8 surgery.
9 THE COURT: Okay. It's just -- you know, I didn't
10 see that he specifically indicated that injuring the putamen
11 was a departure from good and accepted surgical practice.
12 That's what I'm asking for.
13 MR. WERKSMAN: Right. I -- hang on one second,
14 your Honor. I'm looking at one other paragraph.
15 THE COURT: Just while you are looking at that, I
16 just want to say that everybody's papers were really very --
17 really good.
18 MS. KELLEY: Thank you.
19 THE COURT: I really -- even after all these years
20 we still enjoy reading everything. We really do. And it's
21 interesting. I mean, where else would we be reading about
22 neurosurgery. It is truly magnificent. But go ahead.
23 MR. WERKSMAN: Thank you, your Honor. I appreciate
24 that.
25 MS. KELLEY: I do as well.
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1 MR. WERKSMAN: We put a lot of work into these
2 papers.
3 Your Honor, I do not see where -- so, you know, at
4 the end of paragraph 24, "As such, there cannot be any
5 legitimate dispute, and it is my opinion to a reasonable" --
6 I'm sorry, I'll slow down. "It is my opinion to a
7 reasonable degree of medical neurosurgical certainty that
8 defendants' deviations in the standard of care in proceeding
9 with the surgery, in executing the surgery, and then, et
10 cetera, et cetera, were substantial contributing factors."
11 So in paragraph 19 our expert addresses damage to
12 the right putamen, which is not something that he would
13 think is necessarily part of the surgery. And then in this
14 paragraph he indicates that, you know, there was a deviation
15 in the actual performance of the surgery, so that's where
16 our expert addresses that specific issue, at point three of
17 Ms. Kelley's.
18
Preview
FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 1 1 SUPREME COURT OF THE STATE OF NEW YORK 2 COUNTY OF NEW YORK : CIVIL TERM : Part 30 3 ----------------------------------------------x 4 LINDA FISCH AND CHARLES FISCH, Index: 805275/2020 5 Plaintiffs, 6 -against- 7 CONSTANTINOS HADJIPANAYIS, M.D. MOUNT SINAI MEDICAL CENTER, 8 MOUNT SINAI HEALTH SYSTEM, INC. AND ICAHN SCHOOL OF MEDICINE AT MOUNT SINAI, 9 Defendants. 10 ----------------------------------------------x 11 Microsoft Teams conference July 25, 2023 12 B E F O R E: HONORABLE JUDITH REEVES Mc MAHON, SCJ 13 14 A P P E A R A N C E S: 15 MERSON LAW, PLLC 16 attorneys for the Plaintiffs 950 Third Avenue, 18th Floor 17 New York, New York 10022 BY: NATHAN WERKSMAN, ESQ. 18 19 HEIDELL, PITTONI, MURPHY & BACH, LLP 20 attorneys for the Defendants 99 Park Avenue 21 New York, New York 10016 BY: ERIN KELLEY, ESQ. 22 23 24 Michael Ranita 25 Senior Court Reporter FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 2 Proceedings 1 THE COURT: Okay, we'll begin. We have everybody 2 here. 3 MS. KELLEY: We do. And, your Honor, this is on 4 the record; correct? 5 THE COURT: Yes, it is, of course. 6 MS. KELLEY: Thank you. Perfect. 7 THE COURT: It always is, Ms. Kelley, okay? 8 MS. KELLEY: Good to know. Thank you. Thank you. 9 I appreciate that. 10 THE COURT: This is the case of -- 11 MS. KELLEY: Your Honor -- I'm sorry. 12 THE COURT: Excuse me, please, Ms. Kelley. Let's 13 go on the record and let's begin, okay? 14 This is the case of Linda Fisch et al. versus 15 Constantinos Hadjipanayis, M.D. et al., index number 805275 16 of 2020. 17 Appearances on the record. Plaintiff first. 18 MR. WERKSMAN: Nathan Werksman from Merson Law, on 19 behalf of plaintiffs Linda and Charles Fisch. 20 THE COURT: For defendants. 21 MS. KELLEY: Erin Kelley from Heidell, Pittoni, 22 Murphy & Bach, on behalf of Dr. Hadjipanayis, Mount Sinai 23 Hospital, and Icahn School of Medicine at Mount Sinai. 24 THE COURT: Very good. And Ms. Kelley, this is 25 your motion to dismiss the complaint against the defendants. FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 3 Proceedings 1 So please indicate why that should occur. 2 MS. KELLEY: Sure, your Honor. Thank you. 3 Your Honor, this case involved four claims 4 primarily. The claims are that Dr. Hadjipanayis and the 5 other defendants improperly recommended surgical 6 interventions to Mrs. Fisch for her colloid cyst; that there 7 was a lacked of informed consent pertaining to this 8 procedure; that the procedure was improperly performed, and 9 then the fourth claim is that there was negligent hiring and 10 supervision. 11 Your Honor, it's not in dispute that plaintiff had 12 a colloid cyst. A colloid cyst is a non-cancerous tumor 13 that's located in third ventricle of the brain. According 14 to our expert, neurosurgeon Mark Souweidane, 15 S-O-U-W-E-I-D-A-N-E, according to Dr. Souweidane, these 16 types of tumors, although they are non-cancerous, have a 17 very high risk for deterioration immortality. This is 18 because these cysts, if they grow, they could end up 19 blocking the drainage of cerebrospinal fluid, which results 20 in hydrocephalus. What results is, because of this 21 increased fluid in the brain, this increased cerebrospinal 22 fluid in the brain, the ventricles in the brain end up 23 enlarging to accommodate it. And what that causes is 24 compression of the brain from within, and it can result in 25 brain tissue damage, and sudden death as a result. FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 4 Proceedings 1 As I indicated earlier, one of the claims in this 2 case is that Dr. Hadjipanayis improperly recommended surgery 3 to Mrs. Fisch as it pertains to her colloid cyst. 4 Specifically, he recommended that she have it surgically 5 removed. 6 It's our position that Mrs. Fisch was an 7 appropriate physical candidate in this case and that 8 Dr. Hadjipanayis was absolutely well within the standard of 9 care for recommending this type of procedure to her. 10 Our expert has opined, and of significance, 11 plaintiff's expert also agrees that there are essentially 12 three parameters for determining whether or not a patient 13 should undergo surgical -- um, intervention to for this type 14 of cyst. 15 Those three parameters are, number one, if the 16 patient is symptomatic. Number two, if the cyst is growing. 17 And number three, if there is an enlargement of the 18 ventricles. 19 Now, in determining whether or not a patient is 20 symptomatic, there are three classic or hallmark signs to 21 determine that a patient is symptomatic. According to our 22 expert, Dr. Souweidane, these symptoms or hallmark signs are 23 memory loss, syncope, which is the loss of consciousness, 24 and hydrocephalus. 25 In our motion, we addressed all three hallmark FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 5 Proceedings 1 signs and symptoms. We addressed the fact that Mrs. Fisch 2 had preoperative memory loss. She experienced an episode 3 and syncope, and she also had hydrocephalus, which is not 4 disputed by plaintiff's Counsel or his expert, um, this 5 hydrocephalus was demonstrated on her imaging studies 6 preoperatively. 7 In response, plaintiff only focused on the facts -- 8 excuse me. Plaintiff only focused on memory loss, and made 9 an issue of whether or not Mrs. Fisch had, in fact, 10 preoperative memory loss. The expert never addressed 11 syncope or hydrocephalus. No, our expert never said you 12 needed all three symptoms in order to be considered 13 symptomatic. Our expert said there are three hallmark 14 symptoms. And, in fact, like I said, she did, in fact, have 15 syncope, and she had hydrocephalus. 16 Also, plaintiff's expert does not refute our 17 expert, Dr. Souweidane's assertion, that once a patient has 18 hydrocephalus or demonstrates hydrocephalus, the risk of 19 sudden death becomes even greater, as does the risk of a 20 cognitive dysfunction. 21 Number two, the second parameter or requirement, if 22 you will, in determining whether or not a patient should 23 undergo surgical resection of the cyst is whether or not 24 there is growth of the -- 25 THE COURT REPORTER: I'm sorry, Counsel, I didn't FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 6 Proceedings 1 hear the end. "Whether or not there is" -- 2 THE COURT: Growth. 3 MS. KELLEY: Thank you for checking. Whether or 4 not there is growth of the cyst. 5 THE COURT: Didn't the plaintiff and her husband, 6 when she initially met with the defendant doctor, did they 7 complain of memory loss at that point? 8 MS. KELLEY: They did, your Honor. It's noted in 9 the records. In fact, at the very first consultation with 10 Dr. Hadjipanayis, only Mrs. Fisch was present, in person. 11 Her husband was on the telephone though during that 12 appointment, and he reported. He actually was the one that 13 reported her having memory loss. It's in the records. 14 However, plaintiff has submitted an affidavit from 15 Mrs. Fisch in opposition to the motion for summary judgment. 16 He also has submitted both plaintiffs' deposition testimony 17 asserting that she did not have any memory loss prior to the 18 procedure. Also, he submitted Ms. Neuman's, their 19 daughter's deposition transcript in further support of his 20 proposition that she did not have any memory loss. 21 Your Honor, I would just make a side note that 22 Ms. Neuman's deposition transcript should not be considered 23 whatsoever because it's not in admissible form. It was not 24 signed, nor is there any evidence indicating that it was 25 forwarded to her with the request that she review it, make FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 7 Proceedings 1 sure that it's accurate, and execute it and return it to 2 plaintiff's Counsel. And pursuant to the case law, that 3 must be done in order for it be to be considered admissible. 4 So I would just ask that the Court not consider Ms. Neuman's 5 deposition transcript. 6 But, um, so we talked about the symptoms. The 7 second prong of determining whether or not the surgery is 8 warranted is whether or not there is growth. We had this 9 case reviewed by a neuroradiology expert, your Honor. 10 Elizabeth Lustrin, who is a board certified 11 neuroradiologist, affirmed, to a reasonable degree of 12 medical certainty, that after reviewing the film, all of the 13 films in this case, beginning in May 2009 to March 2018, she 14 agreed that there was growth of this cyst. However, 15 plaintiff makes blatantly false statements in his opposition 16 in order to support the proposition that the cyst did not 17 grow. 18 First of all, plaintiff's expert is a neurosurgeon. 19 They did not submit an expert affirmation from a 20 neuroradiologist. But one of the false statements that 21 plaintiff makes in support of his proposition that the cyst 22 did not grow is that he cites to a radiology report from 23 January 18th, 2018, and he actually notes -- I have it in 24 quotes, your Honor, here on page 13 of plaintiff's expert 25 affirmation at paragraph 26. Plaintiff's expert states, and FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 8 Proceedings 1 I quote, "The CT imaging taken in the emergency room on 2 January 18th, 2018 explicitly reported that the cyst was 3 stable in size since 2009," end quote. 4 If your Honor permits, I would like to share -- I 5 would like to actually share with the Court that radiology 6 report. May I, your Honor? 7 THE COURT: Absolutely. 8 MS. KELLEY: This is off the record. 9 (Whereupon, there is a discussion held off the 10 record among the Court and Counsel.) 11 THE COURT: Do you want to just read it into the 12 record? 13 MS. KELLEY: May I, your Honor? 14 THE COURT: Yes. Go ahead. 15 MS. KELLEY: Thank you so much. So this -- let me 16 just pull it up. So this report, first of all, indicates 17 that it was compared to a prior study that was performed on 18 February 10th, 2017. There is no mention of any studies 19 done in 2009. 20 With respect to the colloid cyst this report 21 states, quote, "Again, demonstrated is an eight millimeter 22 hyperdense structure at the level of the foramen Monro", 23 capital M-o-n-r-o, "consistent with a colloid cyst." That 24 is all that is mentioned about the colloid cyst. It does 25 not mention, like I said, any studies that were done in FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 9 Proceedings 1 2009. There is no comparison of sizing. So for plaintiff's 2 expert to say that the CT imaging, this report explicitly 3 reports that the cyst was stable in its size since 2009, is 4 just -- is false. 5 Your Honor, I would also like to note that 6 plaintiff's expert never states in his affirmation that he 7 actually reviewed the films himself and made measurements 8 and things of that nature. He relies solely on the reports. 9 And it's these misinterpretations of the reports and 10 mischaracterizations of the reports, and his own 11 misconstruing of the reports that he believes makes 12 Mrs. Fisch an unsuitable candidate for surgical 13 intervention, when that's just not correct. 14 Another thing that plaintiff's expert has pointed 15 out is that with respect to the imaging and whether or not 16 the cyst grew, plaintiff only compares the imaging from 2017 17 and 2018. Plaintiff's expert does not go back and review 18 the imaging from 2009. 19 Furthermore, your Honor, with respect to -- not 20 only does Dr. Lustrin opine that based upon her review from 21 the films from 2009 all the way through to 2018, that the 22 cyst, in fact, grew during this interval, it previously was 23 reported in 2017 and two thousand -- January of 2018 as 24 being eight millimeters. March 5th, 2018 it's now noted to 25 be approximately nine millimeters. So it's entirely FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 10 Proceedings 1 disingenuous for plaintiff's expert to say the cyst did not 2 grow during this interval. 3 Plaintiff's expert makes a big deal in the report 4 from March 5th, 2018 because it states that the cyst is 5 stable in appearance compared to 2017 and in 2009. However, 6 appearance does not equate with size, your Honor. 7 Appearances is whether or not a cyst appears hyperdense, 8 hypodense, homogeneous, et cetera. In fact, they made a 9 distinction here, they -- they cite separate and apart from 10 the appearance in this report, and again, I note it was nine 11 millimeters on March 5th, 2018, January 18, 2018, two months 12 earlier, less than two months earlier, it was noted to be 13 eight millimeters. 14 Your Honor, then I move onto the third prong as to 15 whether or not surgical intervention is warranted, and 16 that's whether or not there was enlargement of ventricles. 17 Again, plaintiff's expert here does not state that he or she 18 reviewed the films and made his or her own measurements in 19 order to compare whether or not there was growth. He or she 20 simply relies on the radiology studies. 21 What is most important is if your Honor reviews 22 plaintiff's opposition, you will see that plaintiff's expert 23 only refers to studies that were done in 2018, that were 24 compared to prior studies that were done in 2017. 25 For example, plaintiff's expert notes that the FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 11 Proceedings 1 radiology report of the CAT scan that was performed on 2 January 18, 2018, which I just read to the court, shows 3 prominent ventricles that are unchanged from a prior CT 4 scan. It is noted that that prior CT scan was done, as I 5 said earlier, on February 10th, 2017. All this proves is 6 that the ventricles were unproved -- unchanged from the year 7 earlier. There is absolutely no discussion, or analysis, or 8 a thought process from plaintiff's expert as to what 9 happened between 2009 to 2018 with those ventricles. 10 Dr. Lustrin actually performed measurements, her 11 own measurements of the ventricles on the films from 2009 12 and compared them to the films from January 18, 2018, and 13 found that the ventricles did, indeed, enlarge. In fact, 14 there was an area of the ventricles -- one area, that 15 actually doubled in size, and that's noted in her 16 affirmation. 17 Your Honor, so at this point it is our position 18 that this patient was a suitable surgical candidate, and it 19 was entirely appropriate for Dr. Hadjipanayis to recommend 20 surgery to her. Again, because she was -- she met all three 21 criteria. She was symptomatic. We discussed the fact that 22 she had hydrocephalus and syncope. There was growth of the 23 cyst during the interval from 2009 to 2018, which 24 plaintiff's expert, again, has just misconstrued the 25 radiology reports to make them fit his or her theory. FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 12 Proceedings 1 And, again, with the last prong, there was 2 enlargement of ventricles. Which, again, Dr. Lustrin 3 opined, and which plaintiff's Counsel did not refute. He or 4 she only was able to establish that the ventricles were 5 stable from 2017 to 2018. 6 We then move to the second claim of this case, 7 which is the lack of informed consent. It is our position 8 that Dr. Hadjipanayis is entitled to summary judgment on 9 this claim. As the Court knows, to prevail on this claim it 10 must be shown that the provider conveyed the risks, benefits 11 and alternatives to the patient, and that a reasonable 12 prudent patient would not have undergone the procedure or 13 the treatment if fully informed of the risks. 14 One of the contentions of plaintiff is that 15 Dr. Hadjipanayis did not put forth any alternative to 16 Mrs. Fisch. Plaintiff's expert set forth in his or her 17 affirmation that an alternative in this case would or 18 should've been serial studies. But, your Honor, it is our 19 position that there was no alternative available to 20 Mrs. Fisch at this point. The treatment that she was 21 undergoing at that time essentially consisted of the 22 alternative, the very alternative the plaintiff's expert is 23 saying should've been done, which is monitoring through 24 surveillance studies to watch for whether or not there was 25 enlarging ventricles, and whether or not there was growth of FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 13 Proceedings 1 a cyst. And, in fact, there was growth of the cyst and 2 there was enlargement of the ventricles, and so of course 3 surgery was necessary. So there were no other alternatives 4 available to Mrs. Fisch. 5 Also, I would like to point out to the Court that 6 surgical intervention was necessary in this case because of 7 the risk of sudden death. Because of that risk of sudden 8 death, there were, again, no alternatives available. 9 Plaintiff's Counsel attempts to create an issue as 10 to whether or not Mrs. Fisch was advised appropriately of 11 the risks of the procedure. 12 THE COURT: I think we should refer that to 13 Mrs. Fisch's affidavit. 14 MS. KELLEY: Okay. 15 THE COURT: She put in -- what she put in, which is 16 dated June 13th of 2023, which plaintiff has submitted, um, 17 just to say in there a cause of action for informed consent, 18 but I just wanted -- there is an affidavit here, in addition 19 to her deposition. But you may continue, Ms. Kelley. 20 MS. KELLEY: Thank you, your Honor. 21 It is plaintiff, Mrs. Fisch, and Mr. Fisch as well, 22 it is their contention that they were not advised of various 23 risks of the procedure. And it's their contention that had 24 Mrs. Fisch been advised of such risk, she would not have 25 undergone this procedure that was recommended by FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 14 Proceedings 1 Dr. Hadjipanayis. However, what is clear and what is not 2 disputed by any of the parties, is that Mrs. Fisch and 3 Mr. Fisch were both advised of the risk of sudden death if 4 Mrs. Fisch did not undergo the surgery recommended by 5 Dr. Hadjipanayis. Because of this risk of sudden death 6 without undergoing that surgical intervention, it is almost 7 absurd to argue on behalf of plaintiff that a reasonably 8 prudent person facing this possible outcome would not 9 undergo this procedure, even if advised of all the risks. 10 In fact, in the alternative -- in fact, a 11 reasonably prudent person instead, facing the possible 12 outcome of sudden death, even if advised of all the risks, 13 would have undergone the procedure. And that is our 14 position, your Honor. 15 The third claim in this case is that 16 Dr. Hadjipanayis improperly performed the surgery. Now, 17 that is only touched upon in expert -- in plaintiff's expert 18 affirmation. Dr. Souweidane affirmed to a reasonable degree 19 of medical certainty that Dr. Hadjipanayis exhibited 20 appropriate surgical techniques and that there were no 21 intraoperative departures from the standard of care. 22 Plaintiff, in response, states simply that the 23 surgery was improperly performed, and that as a result, 24 Mrs. Fisch suffered injury. Of note, this is a conclusory 25 statement because plaintiff does not -- plaintiff's expert FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 15 Proceedings 1 does not set forth what the standard of care required in the 2 performance of the surgery. Nor does plaintiff's expert set 3 forth how Dr. Hadjipanayis departed from that standard of 4 care. Nor does plaintiff's expert then set forth how the 5 injuries that Mrs. Fisch allegedly sustained were caused by 6 those unknown departures. In fact, your Honor, plaintiff's 7 expert states that the injuries that, um, many of 8 Mrs. Fisch's injuries are well-known and accepted risks of 9 the procedure. And Dr. Souweidane opined that -- equally 10 opined that they are well-known and accepted risks of the 11 procedure that occur in the absence of negligence. So that 12 claim must also be dismissed, your Honor, because it's 13 conclusory. And at the same time plaintiff's expert 14 concedes that the injuries are well-known and established 15 risks of the procedure that can happen in the outcome of the 16 surgery. 17 Your Honor, the final claim is a negligent hiring 18 claim. In order to meet this burden, plaintiff, um, through 19 expert testimony -- through his expert affirmation must be 20 able to prove that there was negligent conduct on the part 21 of Dr. Hadjipanayis, and the other defendants, that the 22 hospital and Icahn School of Medicine were aware of and 23 chose to ignore that resulted in plaintiff's injuries. 24 Now, we argued in support of Dr. Hadjipanayis and 25 the defendant -- other defendants, that there was no such FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 16 Proceedings 1 negligent conduct that Dr. Hadjipanayis or the other 2 defendants engaged in, and certainly nothing that the 3 hospital staff or Icahn School of Medicine was aware of and 4 chose to ignore, that resulted in the plaintiff's injuries. 5 Plaintiff's expert affirmation, and even his memo 6 of law, is entirely silent on this claim. And as such, the 7 defendants should be granted summary judgment on this claim. 8 Not only on this claim, your Honor, but overall in sum, all 9 four claims should be dismissed as to the defendants. And 10 if the Court finds that all four claims should, in fact, be 11 dismissed as to the defendants, then obviously Mr. Fisch's 12 derivative claim should be dismissed as well. 13 Thank you. 14 THE COURT: Thank you, Ms. Kelley. 15 Mr. Werksman. 16 MR. WERKSMAN: Thank you, your Honor. If your 17 Honor would like me to address specific points, I'm happy to 18 do so, otherwise I'll just kind of -- 19 THE COURT: Let me do some housekeeping. Do you 20 agree with Ms. Kelley as to the negligent hiring claim? 21 MR. WERKSMAN: Yes. Except what I would add is 22 that Dr. Hadjipanayis undisputedly an employee of -- 23 THE COURT: Yes. 24 MR. WERKSMAN: -- Mount Sinai Hospital. But I do 25 agree with Ms. Kelley with regard to the negligent hiring FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 17 Proceedings 1 claim. 2 THE COURT: I do as well. I think we could say 3 that if this Court finds any question of fact as to 4 Dr. Hadjipanayis, then Mount Sinai Medical Center would be, 5 um, only vicariously responsible for anything that he would 6 have done, if anything. 7 Do we agree with that? 8 MR. WERKSMAN: Well, your Honor, I -- 9 THE COURT: Who was he employed with? Who is his 10 employer? 11 MR. WERKSMAN: He was an employee of Mount Sinai 12 Hospital. 13 THE COURT: Yes. Yes, exactly. 14 MR. WERKSMAN: He testified to that in his 15 deposition. So, you know, I would argue he was -- the work 16 he was doing was within the course and scope of his 17 employment. Not only are they vicariously liable, but they 18 are liable for his acts. It's not just -- 19 THE COURT: That's what vicarious responsibility 20 is, sir. That's what vicarious responsibility is. 21 MR. WERKSMAN: I agree with that. 22 THE COURT: That's what vicarious responsibility 23 is. That's what it is. 24 What Ms. Kelley was arguing and I don't know if you 25 agree with her, is that there were no direct claims as to -- FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 18 Proceedings 1 MR. WERKSMAN: I agree with that. 2 THE COURT: Okay, you both agree with that. Okay. 3 MR. WERKSMAN: Yes. 4 MS. KELLEY: Your Honor, I'm sorry, because -- 5 THE COURT: What I said is that I agree with you is 6 that there are no direct claims as to the hospital, okay, 7 that were made out in these papers, okay? So that is 8 correct. So any direct claims that they might have had are 9 dismissed as to the hospital. 10 The hospital would only be vicariously responsible 11 for this defendant doctor if we get -- if we find that there 12 is a question of fact, okay? Do you see what I'm saying? 13 MS. KELLEY: I do, your Honor. Thank you. What 14 about Icahn School of Medicine? 15 THE COURT: Yes. I want to get -- I'm just trying 16 to get the housekeeping. 17 What about the Icahn School of Medicine? He 18 clearly indicated that he was employed by Mount Sinai 19 Medical Center. What about Mount Sinai Health System and 20 Icahn School of Medicine, Mr. Werksman? I don't think your 21 expert even mentions them. 22 MR. WERKSMAN: I agree. I just want to be 23 absolutely certain about the entity that was his employer. 24 I believe it is Mount Sinai Hospital. As to the others -- 25 as to the others, I would agree, there are no independent FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 19 Proceedings 1 claims against them. I believe it's Mount Sinai Medical 2 Center is -- was his employer. 3 THE COURT: Do you agree with that, that it is 4 Mount Sinai Medical Center that was his employer? 5 MS. KELLEY: That's what he testified to, your 6 Honor. He testified that it's Mount Sinai Hospital. It was 7 sued as Mount Sinai Medical Center, yes. 8 THE COURT: Okay. So we could agree that Mount 9 Sinai Medical Center was and is the defendant doctor's 10 employer as testified to. Okay? 11 MS. KELLEY: Yes. 12 THE COURT: So -- and then we can agree that Mount 13 Sinai Health System and Icahn School of Medicine at Mount 14 Sinai, which is not mentioned by plaintiff's expert at all, 15 should not be in this case. 16 MS. KELLEY: Your Honor, if I may, just for a 17 little bit of housekeeping, Mount Sinai Health System either 18 did not appear in this action or was discontinued. We do 19 not represent them. 20 THE COURT: Oh, okay. Well, they are out of the 21 case anyway. 22 MS. KELLEY: Right, okay. 23 THE COURT: Okay. 24 MS. KELLEY: Very easy. 25 THE COURT: They are going to be out of the case. FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 20 Proceedings 1 And Icahn School of Medicine, who I do believe you do 2 represent, is also out of this case. 3 MS. KELLEY: That is correct, your Honor. 4 THE COURT: Okay. 5 MR. WERKSMAN: And just to add to that, the 6 defendants answered, I believe, as the Mount Sinai Hospital; 7 is that correct, Ms. Kelley? 8 MS. KELLEY: We did. We entered as Mount Sinai 9 Hospital, sued herein as Mount Sinai Medical Center. 10 MR. WERKSMAN: Okay, okay. So we can agree that 11 Mount Sinai Hospital, the Mount Sinai Hospital is the 12 correct entity that was employed by -- that employed 13 Dr. Hadjipanayis. 14 MS. KELLEY: That's how he testified, yes. 15 MR. WERKSMAN: Okay. And that is the entity that 16 is vicariously liable, should we find issues of fact as to 17 the doctor, which I think we will; is that correct? 18 THE COURT: That would be correct. That would be 19 correct. 20 MR. WERKSMAN: Okay. 21 THE COURT: I'll answer that, Ms. Kelley. That 22 would be correct. That would be correct, Mr. Werksman. 23 MR. WERKSMAN: Thank you. 24 THE COURT: So let me ask you this. 25 MR. WERKSMAN: Please. FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 21 Proceedings 1 THE COURT: Your expert, there are a few questions 2 I have as to your expert. And one of them is, clearly he 3 has indicated that this surgery should not have been 4 performed. 5 MR. WERKSMAN: Correct. 6 THE COURT: But where in his affidavit, if any, 7 does he criticize the performance itself of -- by Dr. -- the 8 defendant doctor, who has a very mellifluous name? I love 9 the name, but I'm not good at saying it. It's such a 10 beautiful name. 11 MS. KELLEY: Could you imagine being a child 12 growing up with that name, I mean the teachers -- 13 THE COURT: It's a beautiful name though. Okay. 14 So that's my question. Did he say that in any way, shape or 15 form, that the defendant doctor negligently performed the 16 surgery? Or in the performance of the surgery that he did 17 something wrong? 18 MR. WERKSMAN: Yes. I would direct your Honor's 19 attention to paragraph 19 of plaintiff's expert affirmation. 20 And this generally regards damage to Mrs. Fisch's putamen. 21 I'm not sure if I'm pronouncing that correctly, 22 P-U-T-A-M-E-N. He relies on a note by a neurologist, 23 Dr. Robert April, the notice from a month after, indicating 24 that there is too much tissue damage along the drain track, 25 including the right putamen, where there is a mass effect FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 22 Proceedings 1 and signal changes, all of which are correlated with the 2 cognitive and effective changes constituting this prolonged 3 worrisome encephalopathy. 4 And so the claim there is that Dr. Hadjipanayis's 5 performance of the surgery damaged the putamen, which is 6 responsible for some of Mrs. Fisch's deficits. That is 7 where our expert addresses the actual performance of the 8 surgery. 9 THE COURT: Okay. It's just -- you know, I didn't 10 see that he specifically indicated that injuring the putamen 11 was a departure from good and accepted surgical practice. 12 That's what I'm asking for. 13 MR. WERKSMAN: Right. I -- hang on one second, 14 your Honor. I'm looking at one other paragraph. 15 THE COURT: Just while you are looking at that, I 16 just want to say that everybody's papers were really very -- 17 really good. 18 MS. KELLEY: Thank you. 19 THE COURT: I really -- even after all these years 20 we still enjoy reading everything. We really do. And it's 21 interesting. I mean, where else would we be reading about 22 neurosurgery. It is truly magnificent. But go ahead. 23 MR. WERKSMAN: Thank you, your Honor. I appreciate 24 that. 25 MS. KELLEY: I do as well. FILED: NEW YORK COUNTY CLERK 09/05/2023 09:41 PM INDEX NO. 805275/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 09/05/2023 23 Proceedings 1 MR. WERKSMAN: We put a lot of work into these 2 papers. 3 Your Honor, I do not see where -- so, you know, at 4 the end of paragraph 24, "As such, there cannot be any 5 legitimate dispute, and it is my opinion to a reasonable" -- 6 I'm sorry, I'll slow down. "It is my opinion to a 7 reasonable degree of medical neurosurgical certainty that 8 defendants' deviations in the standard of care in proceeding 9 with the surgery, in executing the surgery, and then, et 10 cetera, et cetera, were substantial contributing factors." 11 So in paragraph 19 our expert addresses damage to 12 the right putamen, which is not something that he would 13 think is necessarily part of the surgery. And then in this 14 paragraph he indicates that, you know, there was a deviation 15 in the actual performance of the surgery, so that's where 16 our expert addresses that specific issue, at point three of 17 Ms. Kelley's. 18