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NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/18/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
x
SHELLYANN HOFFMAN AND OLUJMI
JOLAOSHO,
NOTICE OF APPEAL
Plaintiffs,
Index No. 805302/2015
- against -
DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D.,
and NEW YORK PRESBYTERIAN HOSPITAL,
Defendants.
x
PLEASE TAKE NOTICE, that the above-named defendants, DEBRA TAUBEL, M.D.,
TIRSIT ASFAW, M.D., and THE NEW YORK AND PRESBYTERIAN HOSPITAL, s/h/a
“NEW YORK PRESBYTERIAN HOSPITAL,” hereby appeal to the Appellate Division of the
Supreme Court, First Department, from the annexed order of the Supreme Court, New York
County (Hon. John J. Kelley), dated April 30, 2021 and entered in the office of the clerk of the
court of that county on May 3, 2021, and from each and every part of said order adverse to the
interests of the appealing defendants.
Dated: New York, New York
May 18, 2021
Yours, etc.
E lliott J. Z ucker
BY: Elliott J. Zucker
AARONSON RAPPAPORT FEINSTEIN &
DEUTSCH, LLP
Attorneys for DEBRA TAUBEL, M.D., TIRSIT
ASFAW, M.D. and THE NEEW YORK AND
PRESBYTERIAN HOSPITAL s/h/a “NEW YORK
PRESBYTERIAN HOSPITAL”
600 Third Avenue
New York, NY 10016
(212) 593-8055
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To:
DOUGLAS AND LONDON, P.C.
Attorneys for Plaintiffs
59 Maiden Lane, 6th Floor
New York, NY 10038
(212) 566-7500
-2-
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9upreme GInurt of flie 9tate af New WarIt
Appellate Biuisian: First H)ubicial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 [a])- Civil
For Court of Original Instance
SHELLYANNE HOFFMAN and OLUJlMI JOLAOSHO,
Plainitffs,
Date Notice of Appeal Filed
-against -
DEBRA TAUBEL, M.D., TlRSIT ASFAW, M.D., and NEW YORK . . .
For Appellate Division
PRESBYTERIAN HOSPITAL,
Defendants
O Civil Action CPLR article 78 Preeeding Appeal O Transferred Proceeding
CPLR article 75 Arbitration Special Precccér-g Other Original Proceedings O CPLR Article 78
Co- e~d O CPLR Article 78 Executive Law § 298
C Action under CPLR 214-g Habeas Corpus P ceeding
O Erninent Dornain CPLR 5704 Review
Labor Law 220 or 220-b
Public Officers Law § 36
Real Property Tax Law § 1278
O Administrative Review O Business Relãtionships O Cun n crcial O Contracts
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
_O Family Court O Moligagc Foreclosure O Miscellaneous O Prisoner Discipline & Parole
O Real Property O Statutory O Taxation liii Torts
(other than foreclosure)
inforrnational statement - CivA
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Paper Appealed From (Check one only): If an appeal has be n taken from more tÓan one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
O Amended Decree O Determination E Order O Resettled Order
O Amended Judgement O Finding O Order & Judgment O Ruling
O Amended Order O interlocutory Decree O Partial Decree O Other (specify):
O Decision O Interlocutory Judgment O Resettled Decree
O Decree O Judgment O Resettled Judgment
Court: Supreme Court 6 County: New York
Dated: 04/30/2021 05/03/2021
Entered:
Judge (name in full):Hon. John J. Kelley Index No.: 805302/2015
Stage: E Interlocutory O Final O Post-Final Trial: O Yes E No If Yes: O O
Jury Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in the same action or proceeding in the court? O Yes B No
currently pending
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
Commenced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed:
Statute authorizing commeñcement of proceeding in the Appellate Division:
Court: Choose Court County: Choose County
udge (name in full): Order of Transfer Date:
Court: Choose Court County: Choose County
udge (name in full): Dated:
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whêthêr the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
This is an apeal from an order of the court below, which denied a motion for summary judgment that had
been made on behalf of the defendants.
Informational Statement - Civil
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issues: Specify the issues proposed to be raised on the appeal, piccêêding, or app!ication for CPLR 5704 review, the grounds
for reversal, or modinc=tion to be advanced and the specific relief sought on appeal.
On appea!. it will be submitted that the court below erred in finding that that proof submittêd by the
defendants'
plainiffs in opposition to the motion for summary judment was suficient to raise a question of
fact so as to warrant the denial of this motion, and that the court further erred in such other ways as may
become apparent upon review of the record on appeal.
Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this
form is to be filed for a praceeding commenced in this court, fill in only the party's name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
1 Shellyann Hoffman Plaintiff 8 Respondent 8
2 olujimi Jalaasho Plaintiff 8 Respondent 8
3 Debra Taubel, M.D. |Defendant _ 8 Appellant 8
4 Tirsit Asfaw, M.D. Defendant 8 Appellant
5 New York Presbytspan Hospita| Defendant 8 Appellant 8
6
7
8
9
10
12
13
14
15
16
19
Informational Statomant - CMI
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Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or order to show cause by which a special proceeding is to be cc.T.==ed in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigantrepresents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name: Douglas & London, P.C.
Address: 59 Maiden Lane, 6th Floor
City: New York State: NY Zip: 10038 Telephone No: (212) 566-7500
E-mail Address: rjanb@dauglasandlondon.com
Attorney Type: a Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):1, 2
. , .. .- . . .. . - . , . . , ..... .,,,., .,,,,,,,,,,..,,,,,,,.,,,,..,,, ,.,, .
Attorney/Firm Name: Aemnson Rappaport Fainstsi & Deutsch, LLP
Address: 600 Third Avenue
E-mail Address: ejzucker@arfdlaw.com
Attorney Type: a Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):3, 4, 5
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: | State: Zip: Telephone No:
E-mail Address:
Attciney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorne Firm Nam
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Goverarñent O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name: ___
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s)
-. ..,..,,...-..
from table above):
,,,......---. --... ----
.,..,....,---.-,..,,-.., .,,,,,......, ,,,.~.-.
Wo-mational Statement - Civil
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JOHN J. KELLEY PART IAS MOTION 56EFM
Justice
--------------------------------------------------------------------------------X INDEX NO. 805302/2015
SHELLYANN HOFFMAN AND OLUJIMI JOLAOSHO,
MOTION DATE 04/07/2021
Plaintiffs,
MOTION SEQ. NO. 003
-v-
DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D., and NEW YORK
PREBYTERIAN HOSPITAL, DECISION AND ORDER
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number 96, 97, 98, 99, 100, 101, 102, 103,
104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124,
125, 126, 127, 128, 129, 130, 131, 132, 134, 135, 136, and 137 (Motion 003)
were read on this motion to/for SUMMARY JUDGMENT .
In this action to recover damages for medical malpractice based on departures from
good and accepted medical practice and lack of informed consent, the defendants move
pursuant to CPLR 3212 for summary judgment dismissing the complaint. The plaintiffs oppose
the motion. The motion is granted only to the extent of dismissing the cause of action alleging
lack of informed consent, and the motion is otherwise denied. In opposition to the defendants’
prima facie showing of their entitlement to judgment as a matter of law, the plaintiffs raised
triable issues of fact as to whether the defendants departed from good and accepted medical
practice in transecting Shellyann Hoffman’s right ureter in the course of a hysterectomy and in
failing to provide adequate post-operative care, and whether the defendants’ malpractice in this
regard caused her to sustain the injuries that she claimed.
On September 8, 2014, Hoffman, who was then 37 years of age, had been pregnant for
23 weeks. On that date, she was admitted to the defendant New York Presbyterian Hospital
(NYPH) complaining of decreased fetal movement. She was diagnosed with intra-uterine fetal
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demise, that is, a miscarriage. On September 9, 2014, she underwent a hysterectomy at
NYPH, which was performed by the defendant Debra Taubel, M.D., with assistance from the
defendant Tirsit Asfaw, M.D. In the course of the procedure, Hoffman’s right ureter was
transected. This condition was not diagnosed until more than one week later. Upon diagnosis,
a temporary nephrostomy tube was inserted into Hoffman, she was not discharged from NYPH
until September 21, 2014, and she deferred definitive repair of her right ureter until November
2014.
The plaintiffs allege that Hoffman sustained an injury to her right ureter as a proximate
result of medical malpractice committed by Taubel during the surgery, and that Taubel and
Asfaw departed from good and accepted practice in failing to recognize that the ureter had been
transected as they completed the procedure, thus delaying diagnosis, treatment, and repair of
the ureter. The plaintiffs assert that NYPH is vicariously liable for the malpractice of Taubel and
Asfaw, who were its employees, and also because its hospital staff failed to timely diagnose and
treat the transection during her post-operative stay at the hospital, despite indications strongly
suggesting a urinary tract injury.
In their bill of particulars as to Taubel, the plaintiffs assert that Taubel departed from
good and accepted medical practice
“in negligently performing a supra cervical hysterectomy [SCH] on September 9,
2014; in failing to timely and properly diagnose a ureteral injury; in causing
Plaintiff the need to undergo further surgical intervention; in causing plaintiff need
to have a percutaneous nephrostomy tube placed; in failing to timely and
properly detect, diagnose, address and treat damage to the ureter caused during
hysterectomy; in failing to implement precautions based upon performance of
SCH at 23 weeks including use of ureteral catheters; in failing to timely and
properly locate and identify the location of the ureters during the performance of
the subject hysterectomy and protect same from injury; in negligently failing to
timely and properly evaluate and assess the ureters during the course of the
surgery and prior to closure; in failing to have urologist present at time of
hysterectomy to fully evaluate the ureters prior to closure; in negligently causing
a ureter injury; in negligently causing a ureteral injury; in failing to timely and
properly perform a cystoscopy; in failing to timely and properly perform an
examination and evaluation of plaintiff’s ureteral post operative functioning.”
The plaintiff further alleged that Taubel committed departures
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“in negligently failing to timely and properly diagnose, address, treat and follow
up upon plaintiff’s complaints, condition, signs and symptoms; in failing to timely
and properly detect, diagnose and treat plaintiff's condition, complaints, signs and
symptoms; in failing to properly solicit a medical history; in failing to timely and
properly advise, inform and educate plaintiff as to the risks, benefits and
alternatives to the subject procedure; in negligently failing to conduct indicated
tests and studies or refer for same; in failing to have clear identification of the
ureter throughout . . . the operative field; in failing to timely and properly
determine and address the cause of plaintiff s complaints, condition, signs and
symptoms; in misdiagnosing plaintiff’s condition; in failing to formulate a proper
differential diagnosis; in failing to conduct a timely and proper intra operative
evaluation of ureteral competency; in failing to timely and properly detect,
diagnose, treat and repair a Right Ureteral Injury; in failing to timely and properly
appreciate and address results of diagnostic studies performed and laboratory
tests ordered; in failing to timely order further laboratory work ups; in negligently
failing to obtain informed consent from plaintiff; in failing to ensure that proper
referrals were made and necessary consults ordered; in failing to order or take
the proper examinations and procedures to determine the nature and extent of
ailments and condition from which plaintiff is and was suffering; in failing post
operative[ly] to perform a timely and proper cystoscopy and in failing to timely
and properly perform ureteral assessment and evaluation post operatively; [and]
in failing to timely and properly perform intra operative evaluation of ureteral
competency”
The plaintiffs also asserted that Hoffman
“should have been timely and properly informed and educated as to the risks,
benefits and alternatives to the subject procedures. Had the Plaintiff or any
reasonable person, been informed of the aforesaid risks, benefits, and
alternatives to the care, procedures and treatment performed, she would not
have consented to the aforesaid medical care and treatment or lack thereof.”
The plaintiffs’ bill of particulars as to the Asfaw alleges identical or similar departures.
The plaintiffs’ bill of particulars and supplemental bill of particulars as to NYPH alleges that it
engaged in the same departures as Tabuel and Afsaw, and further asserts that
“Said defendant is vicariously liable for the negligent acts/omissions of its agents,
servants, staff and employees. Plaintiff is unable to particularize by name any
such individuals presently other than captioned defendants DEBRA TAUBEL,
M.D., TIRSIT ASFAW, M.D. and for Robert Setton, M.D., Andrea Hubschmann,
M.D., Allison Boester MD and for post op obstetrical team, the “antepartum” team
and the primary team for follow up care from the surgery, which included the
gynecological or gynosurgery team, and those individuals whose names
appeared within said defendants’ chart for the preoperative, intra-operative and
post operative period.”
In support of their motion, the defendants submit the affirmation of Toby Chai, M.D., an
expert in gynecologic urology. Chai explained that a ureter injury is a well-known and accepted
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risk of pelvic surgery, including a hysterectomy. In addition, he opined, to a reasonable degree
of medical certainty, that the defendants properly identified all anatomical structures for the
purpose of protecting them from the surgery, and that the measures taken by defendants to
minimize the risk of injury to all relevant anatomical structures, including the ureters, met the
standard of care. With respect to Hoffman’s postoperative care, the expert further opined that
there was no reason to suspect an intraoperative ureteral injury, or that the ureter was injured
during the small window of time immediately after the surgery, when the treatment for the
ureteral injury could have been more expeditiously given. Dr. Chai further asserted that there
are no long-term or residual effects of the transection, and that any urinary tract problems of
which Hoffman currently complains are due to depression and the use of prescription
medications.
Based on Taubel’s deposition testimony, Dr. Chai concluded that Taubel provided
Hoffman with a complete explanation of the risks and benefits of the hysterectomy, including the
potential risk of injury to adjacent or nearby organs and anatomical structures.
In opposition to the defendants’ motion, the plaintiffs submitted the affirmations of one
board-certified urologist and one board-certified obstetrician/gynecologist (OB/GYN), both of
whom opined that, within a reasonable degree of medical certainty, the defendants departed
from good and accepted practice, and that such departures were the proximate cause of
Hoffman’s injuries and sequela.
The urologist first noted that NYPH’s chart reflected an “iatrogenic right ureteral
transection during hysterectomy” and “unrecognized iatrogenic Right Ureteral transection,” as
well as a diagnosis of “Intraoperative Ureteral Injury.” The chart further noted that a retrograde
pyelogram, performed nine days after the hysterectomy, revealed a “[c]omplete or near
transection of distal right ureter.” The urologist explained that, merely because the transection
of a ureter is a known risk of a hysterectomy, it does not follow that a surgeon or a surgeon’s
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assistant is excused from properly performing the procedure. In this regard, the urologist
concluded that
` “Taubel departed from good and accepted medical practice by failing to use
proper care to identify and protect the ureters during the surgery and in doing so
Dr. Taubel negligently transected the right ureter.
“To a reasonable degree of medical certainty, it is my opinion that all proper
precautions were not taken to avoid injury to the ureters in accord with the
standard of care at the time . . .”
(emphasis added).
Specifically, the urologist opined that, contrary to Dr. Chai’s opinion, the applicable
standard of care required the defendants to employ prophylactic ureteral catheters during the
procedure in order to protect and preserve the ureter, particularly inasmuch as Hoffman was a
high-risk patient by virtue of being in her 23rd week of pregnancy.
“Ms. Hoffman had increased risk factors for iatrogenic ureteral injury including
uterine size at 23 weeks gestational age. Per the standard of care at that time
uterine size equal to or greater than 12 weeks gestational age predisposed a
patient to iatrogenic ureteral injury. In this instance, the threshold for high risk
due to uterine size (i.e. =/> 12 weeks) was nearly double as this patient was at
23 weeks gestational age. The pre-operative diagnosis of placenta accreta,
where the placenta attaches itself too deeply and too firmly into the uterus,
further predisposed the patient to risk for ureteral injury and the patient's surgical
history of a prior cesarean section, predisposing her to adhesions, put her at
additional risk for ureteral injury.”
Hence, the urologist concluded that prophylactic ureteral catheters were indicated for Hoffman
in accordance with the standard of care applicable at the time of her surgery. The urologist
explained that the benefit of using catheters was to prevent ureteral injury by aiding in the
identification of the left and right ureters and to facilitate intra-operative detection through
enhanced palpation and enhanced visual inspection, as well as to allow for intra-operative repair
of ureteral injuries. The urologist concluded that the benefits of employing prophylactic ureteral
catheters outweighed any risks.
The plaintiffs’ retained urologist expressly rejected the defense expert’s conclusion that
the use of catheters in this case would have increased Hoffman’s risk of injury, or that
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Hoffman’s “soft ureters” presented any additional risks of ureteral perforation. As the expert
explained it, a woman’s ureters become softer and more flexible and pliable during pregnancy,
thus mitigating any inherent risk of perforation. Consequently, it was the urologist’s opinion, to a
reasonable degree of medical certainty, that Taubel departed from good and accepted medical
practice in failing to identify and protect the ureters by utilizing prophylactic ureteral catheters,
and that such departure was a substantial factor in causing the right ureteral transection; the
expert opined that use of prophylactic ureteral catheters would likely have prevented the right
ureter transection injury by enhancing identification of the ureters pathways, both visually and by
palpation, thereby protecting the ureters.
As to the surgical techniques employed by the defendants, the urologist noted that,
although the hospital chart reflected that the left ureter was identified, it does not reflect that the
right ureter was ever identified. The urologist concluded that a note referring to “taking down
the right side in similar fashion” does not implicitly suggest that the right ureter was indeed
identified. The expert came to this conclusion, in part, by citing to Asfaw’s deposition testimony,
in which she stated that, had the right ureter in fact been identified, “of course” it would have
been reflected in the notes. Hence, the plaintiffs’ expert urologist concluded that Taubel
departed from the standard of care by failing to identify Hoffman’s ureters bilaterally in the
course of the procedure in order to protect both of them.
The urologist also concluded that, based on a review of the hospital chart, Asfaw
departed from good and accepted medical practice by failing to assure the integrity of the
urinary tract post-operatively, and that such responsibility was within Asfaw’s domain. The
expert noted that Taubel testified at her deposition that she had requested Asfaw to “be there
when we looked at the bladder and dissected the bladder off the uterus to make sure the
integrity of the system was maintained,” and that the ureters were part of that system. The
expert further noted that Asfaw agreed that this was part of her responsibility. The expert
explained that there were no notes in the chart that reflect whether Asfaw discharged this
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responsibility, and Afsaw testified that she had no independent recollection of assuring the post-
operative integrity of the urinary tract system.
The expert urologist thus concluded that the defendants’ failure to make proper
observations of the right ureter immediately after the surgical procedure, particularly in light of
Hoffman’s increased risk of ureteral injury, led to their failure to suspect the presence of a
transected ureter that should have been obvious, and that this failure, in turn, led them to
conclude that no further diagnostic testing, such as a cystoscopy with contrast, was indicated.
The expert further opined that, had the defendants performed such a diagnostic test, they would
have diagnosed the transection far earlier than it was diagnosed. As the urologist explained it,
“diagnosis during that time window would have allowed for definitive repair
thereby obviating the need in this instance of the temporary nephrostomy tube
and the need to defer definitive repair to November 2014 which in turn would
have prevented the need for the November 2014 hospital admission and any
resulting sequela.”
The expert came to the conclusion that, in light of the foregoing, NYPH’s staff deviated from
good and accepted practice in the post-operative care that they rendered to Hoffman,
particularly because blood work performed during the first few days after surgery reflected an
increase in creatinine levels, which is a common consequence of ureteral injury.
Finally, the plaintiffs’ urologist concluded that the ureteral transection and delayed
diagnosis, treatment, and repair thereof, proximately caused Hoffman to endure pain and blood
pressure irregularities in the short term, and residual, long-term problems with her urinary tract
and urinary functions.
The affirmation of the plaintiffs’ retained OB/GYN essentially repeated the underlying
facts set forth in the urologist’s affirmation, and arrived at identical conclusions and opinions as
to both the departures committed by the defendants and whether they proximately caused injury
to Hoffman.
It is well settled that the movant on a summary judgment motion “must make a pri
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FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/18/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x SHELLYANN HOFFMAN AND OLUJMI JOLAOSHO, NOTICE OF APPEAL Plaintiffs, Index No. 805302/2015 - against - DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D., and NEW YORK PRESBYTERIAN HOSPITAL, Defendants. x PLEASE TAKE NOTICE, that the above-named defendants, DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D., and THE NEW YORK AND PRESBYTERIAN HOSPITAL, s/h/a “NEW YORK PRESBYTERIAN HOSPITAL,” hereby appeal to the Appellate Division of the Supreme Court, First Department, from the annexed order of the Supreme Court, New York County (Hon. John J. Kelley), dated April 30, 2021 and entered in the office of the clerk of the court of that county on May 3, 2021, and from each and every part of said order adverse to the interests of the appealing defendants. Dated: New York, New York May 18, 2021 Yours, etc. E lliott J. Z ucker BY: Elliott J. Zucker AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D. and THE NEEW YORK AND PRESBYTERIAN HOSPITAL s/h/a “NEW YORK PRESBYTERIAN HOSPITAL” 600 Third Avenue New York, NY 10016 (212) 593-8055 1 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/18/2021 To: DOUGLAS AND LONDON, P.C. Attorneys for Plaintiffs 59 Maiden Lane, 6th Floor New York, NY 10038 (212) 566-7500 -2- 2 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/18/2021 9upreme GInurt of flie 9tate af New WarIt Appellate Biuisian: First H)ubicial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 [a])- Civil For Court of Original Instance SHELLYANNE HOFFMAN and OLUJlMI JOLAOSHO, Plainitffs, Date Notice of Appeal Filed -against - DEBRA TAUBEL, M.D., TlRSIT ASFAW, M.D., and NEW YORK . . . For Appellate Division PRESBYTERIAN HOSPITAL, Defendants O Civil Action CPLR article 78 Preeeding Appeal O Transferred Proceeding CPLR article 75 Arbitration Special Precccér-g Other Original Proceedings O CPLR Article 78 Co- e~d O CPLR Article 78 Executive Law § 298 C Action under CPLR 214-g Habeas Corpus P ceeding O Erninent Dornain CPLR 5704 Review Labor Law 220 or 220-b Public Officers Law § 36 Real Property Tax Law § 1278 O Administrative Review O Business Relãtionships O Cun n crcial O Contracts O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters _O Family Court O Moligagc Foreclosure O Miscellaneous O Prisoner Discipline & Parole O Real Property O Statutory O Taxation liii Torts (other than foreclosure) inforrnational statement - CivA 3 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/18/2021 Paper Appealed From (Check one only): If an appeal has be n taken from more tÓan one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. O Amended Decree O Determination E Order O Resettled Order O Amended Judgement O Finding O Order & Judgment O Ruling O Amended Order O interlocutory Decree O Partial Decree O Other (specify): O Decision O Interlocutory Judgment O Resettled Decree O Decree O Judgment O Resettled Judgment Court: Supreme Court 6 County: New York Dated: 04/30/2021 05/03/2021 Entered: Judge (name in full):Hon. John J. Kelley Index No.: 805302/2015 Stage: E Interlocutory O Final O Post-Final Trial: O Yes E No If Yes: O O Jury Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in the same action or proceeding in the court? O Yes B No currently pending If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: Commenced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed: Statute authorizing commeñcement of proceeding in the Appellate Division: Court: Choose Court County: Choose County udge (name in full): Order of Transfer Date: Court: Choose Court County: Choose County udge (name in full): Dated: Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whêthêr the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. This is an apeal from an order of the court below, which denied a motion for summary judgment that had been made on behalf of the defendants. Informational Statement - Civil 4 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/18/2021 issues: Specify the issues proposed to be raised on the appeal, piccêêding, or app!ication for CPLR 5704 review, the grounds for reversal, or modinc=tion to be advanced and the specific relief sought on appeal. On appea!. it will be submitted that the court below erred in finding that that proof submittêd by the defendants' plainiffs in opposition to the motion for summary judment was suficient to raise a question of fact so as to warrant the denial of this motion, and that the court further erred in such other ways as may become apparent upon review of the record on appeal. Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a praceeding commenced in this court, fill in only the party's name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status 1 Shellyann Hoffman Plaintiff 8 Respondent 8 2 olujimi Jalaasho Plaintiff 8 Respondent 8 3 Debra Taubel, M.D. |Defendant _ 8 Appellant 8 4 Tirsit Asfaw, M.D. Defendant 8 Appellant 5 New York Presbytspan Hospita| Defendant 8 Appellant 8 6 7 8 9 10 12 13 14 15 16 19 Informational Statomant - CMI 5 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 05/18/2021 Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be cc.T.==ed in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigantrepresents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: Douglas & London, P.C. Address: 59 Maiden Lane, 6th Floor City: New York State: NY Zip: 10038 Telephone No: (212) 566-7500 E-mail Address: rjanb@dauglasandlondon.com Attorney Type: a Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):1, 2 . , .. .- . . .. . - . , . . , ..... .,,,., .,,,,,,,,,,..,,,,,,,.,,,,..,,, ,.,, . Attorney/Firm Name: Aemnson Rappaport Fainstsi & Deutsch, LLP Address: 600 Third Avenue E-mail Address: ejzucker@arfdlaw.com Attorney Type: a Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):3, 4, 5 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: | State: Zip: Telephone No: E-mail Address: Attciney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorne Firm Nam Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Goverarñent O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: ___ Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) -. ..,..,,...-.. from table above): ,,,......---. --... ---- .,..,....,---.-,..,,-.., .,,,,,......, ,,,.~.-. Wo-mational Statement - Civil 6 of 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 138 NYSCEF DOC. NO. 140 05/03/2021 RECEIVED NYSCEF: 05/18/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART IAS MOTION 56EFM Justice --------------------------------------------------------------------------------X INDEX NO. 805302/2015 SHELLYANN HOFFMAN AND OLUJIMI JOLAOSHO, MOTION DATE 04/07/2021 Plaintiffs, MOTION SEQ. NO. 003 -v- DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D., and NEW YORK PREBYTERIAN HOSPITAL, DECISION AND ORDER Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 134, 135, 136, and 137 (Motion 003) were read on this motion to/for SUMMARY JUDGMENT . In this action to recover damages for medical malpractice based on departures from good and accepted medical practice and lack of informed consent, the defendants move pursuant to CPLR 3212 for summary judgment dismissing the complaint. The plaintiffs oppose the motion. The motion is granted only to the extent of dismissing the cause of action alleging lack of informed consent, and the motion is otherwise denied. In opposition to the defendants’ prima facie showing of their entitlement to judgment as a matter of law, the plaintiffs raised triable issues of fact as to whether the defendants departed from good and accepted medical practice in transecting Shellyann Hoffman’s right ureter in the course of a hysterectomy and in failing to provide adequate post-operative care, and whether the defendants’ malpractice in this regard caused her to sustain the injuries that she claimed. On September 8, 2014, Hoffman, who was then 37 years of age, had been pregnant for 23 weeks. On that date, she was admitted to the defendant New York Presbyterian Hospital (NYPH) complaining of decreased fetal movement. She was diagnosed with intra-uterine fetal INDEX NO. 805302/2015 HOFFMAN, SHELLYANN v TAUBEL Page 1 of 13 SEQ 003 1 of 21 7 13 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 138 NYSCEF DOC. NO. 140 05/03/2021 RECEIVED NYSCEF: 05/18/2021 demise, that is, a miscarriage. On September 9, 2014, she underwent a hysterectomy at NYPH, which was performed by the defendant Debra Taubel, M.D., with assistance from the defendant Tirsit Asfaw, M.D. In the course of the procedure, Hoffman’s right ureter was transected. This condition was not diagnosed until more than one week later. Upon diagnosis, a temporary nephrostomy tube was inserted into Hoffman, she was not discharged from NYPH until September 21, 2014, and she deferred definitive repair of her right ureter until November 2014. The plaintiffs allege that Hoffman sustained an injury to her right ureter as a proximate result of medical malpractice committed by Taubel during the surgery, and that Taubel and Asfaw departed from good and accepted practice in failing to recognize that the ureter had been transected as they completed the procedure, thus delaying diagnosis, treatment, and repair of the ureter. The plaintiffs assert that NYPH is vicariously liable for the malpractice of Taubel and Asfaw, who were its employees, and also because its hospital staff failed to timely diagnose and treat the transection during her post-operative stay at the hospital, despite indications strongly suggesting a urinary tract injury. In their bill of particulars as to Taubel, the plaintiffs assert that Taubel departed from good and accepted medical practice “in negligently performing a supra cervical hysterectomy [SCH] on September 9, 2014; in failing to timely and properly diagnose a ureteral injury; in causing Plaintiff the need to undergo further surgical intervention; in causing plaintiff need to have a percutaneous nephrostomy tube placed; in failing to timely and properly detect, diagnose, address and treat damage to the ureter caused during hysterectomy; in failing to implement precautions based upon performance of SCH at 23 weeks including use of ureteral catheters; in failing to timely and properly locate and identify the location of the ureters during the performance of the subject hysterectomy and protect same from injury; in negligently failing to timely and properly evaluate and assess the ureters during the course of the surgery and prior to closure; in failing to have urologist present at time of hysterectomy to fully evaluate the ureters prior to closure; in negligently causing a ureter injury; in negligently causing a ureteral injury; in failing to timely and properly perform a cystoscopy; in failing to timely and properly perform an examination and evaluation of plaintiff’s ureteral post operative functioning.” The plaintiff further alleged that Taubel committed departures INDEX NO. 805302/2015 HOFFMAN, SHELLYANN v TAUBEL Page 2 of 13 SEQ 003 2 of 21 8 13 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 138 NYSCEF DOC. NO. 140 05/03/2021 RECEIVED NYSCEF: 05/18/2021 “in negligently failing to timely and properly diagnose, address, treat and follow up upon plaintiff’s complaints, condition, signs and symptoms; in failing to timely and properly detect, diagnose and treat plaintiff's condition, complaints, signs and symptoms; in failing to properly solicit a medical history; in failing to timely and properly advise, inform and educate plaintiff as to the risks, benefits and alternatives to the subject procedure; in negligently failing to conduct indicated tests and studies or refer for same; in failing to have clear identification of the ureter throughout . . . the operative field; in failing to timely and properly determine and address the cause of plaintiff s complaints, condition, signs and symptoms; in misdiagnosing plaintiff’s condition; in failing to formulate a proper differential diagnosis; in failing to conduct a timely and proper intra operative evaluation of ureteral competency; in failing to timely and properly detect, diagnose, treat and repair a Right Ureteral Injury; in failing to timely and properly appreciate and address results of diagnostic studies performed and laboratory tests ordered; in failing to timely order further laboratory work ups; in negligently failing to obtain informed consent from plaintiff; in failing to ensure that proper referrals were made and necessary consults ordered; in failing to order or take the proper examinations and procedures to determine the nature and extent of ailments and condition from which plaintiff is and was suffering; in failing post operative[ly] to perform a timely and proper cystoscopy and in failing to timely and properly perform ureteral assessment and evaluation post operatively; [and] in failing to timely and properly perform intra operative evaluation of ureteral competency” The plaintiffs also asserted that Hoffman “should have been timely and properly informed and educated as to the risks, benefits and alternatives to the subject procedures. Had the Plaintiff or any reasonable person, been informed of the aforesaid risks, benefits, and alternatives to the care, procedures and treatment performed, she would not have consented to the aforesaid medical care and treatment or lack thereof.” The plaintiffs’ bill of particulars as to the Asfaw alleges identical or similar departures. The plaintiffs’ bill of particulars and supplemental bill of particulars as to NYPH alleges that it engaged in the same departures as Tabuel and Afsaw, and further asserts that “Said defendant is vicariously liable for the negligent acts/omissions of its agents, servants, staff and employees. Plaintiff is unable to particularize by name any such individuals presently other than captioned defendants DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D. and for Robert Setton, M.D., Andrea Hubschmann, M.D., Allison Boester MD and for post op obstetrical team, the “antepartum” team and the primary team for follow up care from the surgery, which included the gynecological or gynosurgery team, and those individuals whose names appeared within said defendants’ chart for the preoperative, intra-operative and post operative period.” In support of their motion, the defendants submit the affirmation of Toby Chai, M.D., an expert in gynecologic urology. Chai explained that a ureter injury is a well-known and accepted INDEX NO. 805302/2015 HOFFMAN, SHELLYANN v TAUBEL Page 3 of 13 SEQ 003 3 of 21 9 13 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 138 NYSCEF DOC. NO. 140 05/03/2021 RECEIVED NYSCEF: 05/18/2021 risk of pelvic surgery, including a hysterectomy. In addition, he opined, to a reasonable degree of medical certainty, that the defendants properly identified all anatomical structures for the purpose of protecting them from the surgery, and that the measures taken by defendants to minimize the risk of injury to all relevant anatomical structures, including the ureters, met the standard of care. With respect to Hoffman’s postoperative care, the expert further opined that there was no reason to suspect an intraoperative ureteral injury, or that the ureter was injured during the small window of time immediately after the surgery, when the treatment for the ureteral injury could have been more expeditiously given. Dr. Chai further asserted that there are no long-term or residual effects of the transection, and that any urinary tract problems of which Hoffman currently complains are due to depression and the use of prescription medications. Based on Taubel’s deposition testimony, Dr. Chai concluded that Taubel provided Hoffman with a complete explanation of the risks and benefits of the hysterectomy, including the potential risk of injury to adjacent or nearby organs and anatomical structures. In opposition to the defendants’ motion, the plaintiffs submitted the affirmations of one board-certified urologist and one board-certified obstetrician/gynecologist (OB/GYN), both of whom opined that, within a reasonable degree of medical certainty, the defendants departed from good and accepted practice, and that such departures were the proximate cause of Hoffman’s injuries and sequela. The urologist first noted that NYPH’s chart reflected an “iatrogenic right ureteral transection during hysterectomy” and “unrecognized iatrogenic Right Ureteral transection,” as well as a diagnosis of “Intraoperative Ureteral Injury.” The chart further noted that a retrograde pyelogram, performed nine days after the hysterectomy, revealed a “[c]omplete or near transection of distal right ureter.” The urologist explained that, merely because the transection of a ureter is a known risk of a hysterectomy, it does not follow that a surgeon or a surgeon’s INDEX NO. 805302/2015 HOFFMAN, SHELLYANN v TAUBEL Page 4 of 13 SEQ 003 4 of 10 of 13 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 138 NYSCEF DOC. NO. 140 05/03/2021 RECEIVED NYSCEF: 05/18/2021 assistant is excused from properly performing the procedure. In this regard, the urologist concluded that ` “Taubel departed from good and accepted medical practice by failing to use proper care to identify and protect the ureters during the surgery and in doing so Dr. Taubel negligently transected the right ureter. “To a reasonable degree of medical certainty, it is my opinion that all proper precautions were not taken to avoid injury to the ureters in accord with the standard of care at the time . . .” (emphasis added). Specifically, the urologist opined that, contrary to Dr. Chai’s opinion, the applicable standard of care required the defendants to employ prophylactic ureteral catheters during the procedure in order to protect and preserve the ureter, particularly inasmuch as Hoffman was a high-risk patient by virtue of being in her 23rd week of pregnancy. “Ms. Hoffman had increased risk factors for iatrogenic ureteral injury including uterine size at 23 weeks gestational age. Per the standard of care at that time uterine size equal to or greater than 12 weeks gestational age predisposed a patient to iatrogenic ureteral injury. In this instance, the threshold for high risk due to uterine size (i.e. =/> 12 weeks) was nearly double as this patient was at 23 weeks gestational age. The pre-operative diagnosis of placenta accreta, where the placenta attaches itself too deeply and too firmly into the uterus, further predisposed the patient to risk for ureteral injury and the patient's surgical history of a prior cesarean section, predisposing her to adhesions, put her at additional risk for ureteral injury.” Hence, the urologist concluded that prophylactic ureteral catheters were indicated for Hoffman in accordance with the standard of care applicable at the time of her surgery. The urologist explained that the benefit of using catheters was to prevent ureteral injury by aiding in the identification of the left and right ureters and to facilitate intra-operative detection through enhanced palpation and enhanced visual inspection, as well as to allow for intra-operative repair of ureteral injuries. The urologist concluded that the benefits of employing prophylactic ureteral catheters outweighed any risks. The plaintiffs’ retained urologist expressly rejected the defense expert’s conclusion that the use of catheters in this case would have increased Hoffman’s risk of injury, or that INDEX NO. 805302/2015 HOFFMAN, SHELLYANN v TAUBEL Page 5 of 13 SEQ 003 5 of 11 of 13 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 138 NYSCEF DOC. NO. 140 05/03/2021 RECEIVED NYSCEF: 05/18/2021 Hoffman’s “soft ureters” presented any additional risks of ureteral perforation. As the expert explained it, a woman’s ureters become softer and more flexible and pliable during pregnancy, thus mitigating any inherent risk of perforation. Consequently, it was the urologist’s opinion, to a reasonable degree of medical certainty, that Taubel departed from good and accepted medical practice in failing to identify and protect the ureters by utilizing prophylactic ureteral catheters, and that such departure was a substantial factor in causing the right ureteral transection; the expert opined that use of prophylactic ureteral catheters would likely have prevented the right ureter transection injury by enhancing identification of the ureters pathways, both visually and by palpation, thereby protecting the ureters. As to the surgical techniques employed by the defendants, the urologist noted that, although the hospital chart reflected that the left ureter was identified, it does not reflect that the right ureter was ever identified. The urologist concluded that a note referring to “taking down the right side in similar fashion” does not implicitly suggest that the right ureter was indeed identified. The expert came to this conclusion, in part, by citing to Asfaw’s deposition testimony, in which she stated that, had the right ureter in fact been identified, “of course” it would have been reflected in the notes. Hence, the plaintiffs’ expert urologist concluded that Taubel departed from the standard of care by failing to identify Hoffman’s ureters bilaterally in the course of the procedure in order to protect both of them. The urologist also concluded that, based on a review of the hospital chart, Asfaw departed from good and accepted medical practice by failing to assure the integrity of the urinary tract post-operatively, and that such responsibility was within Asfaw’s domain. The expert noted that Taubel testified at her deposition that she had requested Asfaw to “be there when we looked at the bladder and dissected the bladder off the uterus to make sure the integrity of the system was maintained,” and that the ureters were part of that system. The expert further noted that Asfaw agreed that this was part of her responsibility. The expert explained that there were no notes in the chart that reflect whether Asfaw discharged this INDEX NO. 805302/2015 HOFFMAN, SHELLYANN v TAUBEL Page 6 of 13 SEQ 003 6 of 12 of 13 21 FILED: NEW YORK COUNTY CLERK 05/18/2021 10:34 AM INDEX NO. 805302/2015 138 NYSCEF DOC. NO. 140 05/03/2021 RECEIVED NYSCEF: 05/18/2021 responsibility, and Afsaw testified that she had no independent recollection of assuring the post- operative integrity of the urinary tract system. The expert urologist thus concluded that the defendants’ failure to make proper observations of the right ureter immediately after the surgical procedure, particularly in light of Hoffman’s increased risk of ureteral injury, led to their failure to suspect the presence of a transected ureter that should have been obvious, and that this failure, in turn, led them to conclude that no further diagnostic testing, such as a cystoscopy with contrast, was indicated. The expert further opined that, had the defendants performed such a diagnostic test, they would have diagnosed the transection far earlier than it was diagnosed. As the urologist explained it, “diagnosis during that time window would have allowed for definitive repair thereby obviating the need in this instance of the temporary nephrostomy tube and the need to defer definitive repair to November 2014 which in turn would have prevented the need for the November 2014 hospital admission and any resulting sequela.” The expert came to the conclusion that, in light of the foregoing, NYPH’s staff deviated from good and accepted practice in the post-operative care that they rendered to Hoffman, particularly because blood work performed during the first few days after surgery reflected an increase in creatinine levels, which is a common consequence of ureteral injury. Finally, the plaintiffs’ urologist concluded that the ureteral transection and delayed diagnosis, treatment, and repair thereof, proximately caused Hoffman to endure pain and blood pressure irregularities in the short term, and residual, long-term problems with her urinary tract and urinary functions. The affirmation of the plaintiffs’ retained OB/GYN essentially repeated the underlying facts set forth in the urologist’s affirmation, and arrived at identical conclusions and opinions as to both the departures committed by the defendants and whether they proximately caused injury to Hoffman. It is well settled that the movant on a summary judgment motion “must make a pri