EXHIBIT(S) - B1 (Motion #008) PRIOR MOTION PART 1 - PRIOR MOTION PART 1 Redacted March 02, 2018 (2024)

 
Preview
 FILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------··----------------------------------------------------------X JUDITH SESSA, Index #14578/2013 Plaintiff, -against- NOTICE OF MOTION PECONIC BAY MEDICAL CENTER, ANDREW WACKETT, M.D., BRIAN McMAHON, M.D., ROBERT EHLERS, D.O., LINCOLN COX, M.D. and Justice: Hon. JOHN-PAUL BLABER, M.D., JOHN J. BRENNAN, Denise F. Molia M.D. and GEORGE KOULLIAS, M.D., Defendants. Return Date: --------------------------------------------------------------------X 3/3/17 C O U N S E L O R S: PLEASE TAKE NOTICE, that upon the annexed Affirmation in Support of BRIAN M. 30th DUNPHY, ESQ., dated the day of January 2017, the Affirmation of Jeffrey H. Richmond, M.D. 30* F.A.A.O.S., dated the 30 day of January 2017, and upon all the pleadings and proceedings heretofore had herein, defendant, JOHN J. BRENNAN, M.D. by his attorneys, KELLY, RODE & KELLY, LLP, will move this Court located at an IAS Part, of the Courthouse located at 1 Court 3rd o' Street, Riverhead, New York, on the day of March 2017, at 9:30 clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an Order: a. pursuant to CPLR §3212, granting summary judgment dismissing all claims in their entirety with prejudice against defendant, JOHN J. BRENNAN, M.D.; b. directing the Clerk of the Court to enter judgment accordingly; and, c. for such other and further relief as to this Court may deem just and proper. PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, must be served atFILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 least seven (7) days prior to the return date of this motion, pursuant to Rule 2214(b) of the CPLR. Dated: Mineola, New York January 30, 2017 Yours, etc. KELLY, RODE & KELLY, LLP By: BRIAN M. DUN Y Attorneys for Defendant JOHN J. BRENNAN, M.D. Office & P.O. Address 330 Old Country Road, Suite 305 Mineola, NY 11501 (516) 739-0400 Our File No. SPK/BMD118720-624 TO: SALENGER, SACK, KIMMEL & BAVARO, ESQS. Attorneys for Plaintiff Office & P.O. Address 180 Froehlich Farm Boulevard Woodbury, New York 11797 (516) 677-0100 FUREY, FUREY, LEVERAGE, MANZIONE, WILLIAMS & DARLINGTON, P.C. Attorneys for Defendants ANDREW WACKETT, M/D., BRIAN McMAHON, M.D., ROBERT EHLERS, D.O. and LINCOLN COX, M.D. Office & P.O. Address 600 Front Street Hempstead, New York 11550 (516) 438-2500 KERLEY, WALSH, MATERA & CINQUEMANI, P.C. Attorneys for Defendant PECONIC BAY MEDICAL CENTER Office & P.O. Address 2174 Jackson Avenue Seaford, New York 11783 (516) 409-6200FILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 OFFICE OF THE ATTORNEY GENERAL Attorney for Defendant GEORGE KOULLIAS, M.D. 120 Broadway New York, NY 10271 (212) 416-8500 Upon information and belief, the plaintiff's action against defendant, JOHN-PAUL BLABER, M.D., have been discontinued.FILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) Tiffany Alcindor, being duly sworn, deposes and says: I am not a party to this action, am over 18 years of age and reside at West Hempstead, New York. ~ is% On the day of January, 2017, I served, pursuant to the Uniform Rules for the g ( Trial Courts, upon the parties of record listed below in this electronically filed action, a true and correct copy of the within Notice of Motion, Affirmation in Support and supporting documents. By operation of the Court's electronic filing system, parties may access this filing posted on the electronic filing system for this case. SALENGER, SACK, KIMMEL & BAVARO, LLP Attorneys for Plaintiff Office & P.O. Address 180 Froehlich Farm Boulevard Woodbury, New York 11797 (516) 677-0100 FUREY, FUREY, LEVERAGE, MANZIONE, WILLIAMS & DARLINGTON, P.C. Attorneys for Defendants ANDREW WACKETT, M/D., BRIAN McMAHON, M.D., ROBERT EHLERS, D.O. and LINCOLN COX, M.D. Office & P.O. Address 600 Front Street Hempstead, New York 11550 (516) 438-2500 KERLEY, WALSH, MATERA & CINQUEMANI, P.C. Attorneys for Defendant PECONIC BAY MEDICAL CENTER Office P.O. Address 2174 Jackson Avenue Seaford, New York 11783 (516) 409-6200FILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 OFFICE OF THE ATTORNEY GENERAL Attorney for Defendant GEORGE KOULLIAS, M.D. Office & P.O. Address 120 Broadway New York, New York 10271 (212) 416-8500 Upon information and belief, the plaintifPs action as against defendant, JOHN-PAUL BLABER, M.D., has been discontinued. Tiffany Alcindor Sworn to before me on this of Ja uary, 2017. Notary Public RITA S. BRAIN1N Notary Public, S:ate of N:w ) No. 01 BR50-DR 32 Qualified in Nassau Coun g Commission Expire Aprii 24, ~.(FILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------------------------------------------------X X Index No. 14578/2013 JUDITH SESSA, Plaintiff, PHYSICIAN'S AFFIRMATION -against- PECONIC BAY MEDICAL CENTER, ANDREW WACKETT, M.D., BRIAN McMAHON, M.D., ROBERT EHLERS, D.O., LINCOLN COX, M.D. and JOHN-PAUL BLABER, M.D., JOHN J. BRENNAN, M.D. and GEORGE KOULLIAS, M.D., Defendants. ----------------------------------------------------------------------X X JEFFREY H. RICHMOND, M.D. F.A.C.S, a physician duly licensed to practice medicine in the State of New York, hereby affirms the truth of the following upon information and belief under penalties of perjury pursuant to the CPLR. 1. I am a physician licensed to practice medicine in the State ofNew York. I am Board Certified in orthopedic surgery. After graduating from Cornell University in 1996, I performed an internship at NYU Medical Center, followed by an orthopedic surgery residency at Hospital for Joint Diseases from July 1, 1997 to June 30, 2001. Thereafter, I performed a fellowship in orthopedic trauma at Hospital for Special Surgery from 2001 to 2002. I am an an attending physician in the department of orthopedic surgery at North Shore University Hospital of Manhasset and St. Francis Hospital since 2002 and Winthrop University Hospital since 2015. I was appointed in 2012 a clinical assistant professor of orthopedic surgery at NYU School of Medicine. I am a fellow of the American Academy of Orthopaedic Surgeons (FAAOS), and an active member of the Orthopaedic Trauma Association and the Association for Osteosynthesis / Association for the Study of InternalFILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 Fixation (AO/ASIF). I have published a number of time in scientific journals on topics involving orthopedic trauma surgery and have lectured nationally and locally on various topics related to orthopaedic trauma surgery. 2. This affirmation is respectfully submitted in support of a motion to dismiss all claims of medical malpractice against defendant, JOHN J. BRENNAN, M.D. (hereinafter referred to as "Dr. Brennan" Brennan"), in this case. 3. In preparation for this affirmation, I have reviewed the pleadings, deposition transcripts and medical records from Peconic Bay Medical Center (hereinafter "PBMC") and Stony Brook University Hospital (hereinafter "SBUH") of the plaintiff, Judith Sessa. My opinion is based on my knowledge and experience in the field of orthopedic surgery and specifically, orthopedic trauma surgery together with a review of all relevant materials in this case. 4. My review of plaintiff's Verified Bill of Particulars in the case indicates that the alleged claims against defendant, Dr. Brennan herein concern the care and treatment rendered to the plaintiff following her unfortunate fall in her home on the evening of June 30, 2011 where she injured her left elbow. Specifically, plaintiff alleges that Dr. Brennan failed to render proper medical care and treatment to the plaintiffon July 1, 2011 at PBMC and during her admission to SBUH from July 2 until August 9, 2011. I note at the outset that the bill of particulars contains many allegations of negligence as to Dr. Brennan that are not applicable to his care and treatment as he did not see the plaintiff on June 30, 2011 during her first presentation to the PBMC emergency room, rather he first performed an orthopedic consultation on July 1, 2011 during the plaintiff's second presentation. Specifically, the bill of particulars alleges that Dr. Brennan was negligent in: from June 30 until August 9, 2011 Dr. Brennan was negligent in failing to: ~ Heed and appreciate the significance of the plaintiff's complaints, includingFILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 complaints of severe pain, parasthesias; and swelling; • Heed plaintiffs medical history; • Formulate a differential diagnosis; • : and diagnose plaintiffs Promptly properly condition; • Realize plaintiff was a candidate for internal central nervous injury including injury, muscle damage and vascular damage; • realize plaintiffs pain was out of proportion to her apparent injury; • Diagnose and prevent progression of vascular injury; • results of vascular Ignoring testing; • Diagnose compartment syndrome and it to progress; allowing • Perform a proper physical examination; • Monitor and compare the plaintiffs pressures and pulses in her left upper extremity to her left lower extremity; • Make or obtain referrals or consultations; timely • perform additional and diagnostic test and Timely necessary procedures; • Prevent and exacerbation of plaintiffs causing injury; • Diagnose and treat plaintiffs symptoms; • consult with plaintiffs other doctors her Properly treating regarding condition; • Appreciate the nature and extent of plaintiffs condition and render adequate treatment; • plaintiff from room on Discharging emergency 7/1/11; • and perform on Timely properly surgery plaintiff; • Order follow-up testing; • The performance of tests that were follow-up performed; • Establish a proper course of treatment; • emotional damage to the Causing plaintiff; • and medical and Completing maintaining records; • plaintiff from a better chance of recovery. Depriving 5. According to the Bills of Particulars, as a result of these alleged departures from acceptable medical care, the plaintiff'alleges to have sustained the following injuries: amputation of the left forearm and hand; multiple irrigations and debridements of the left arm with VAC dressings; as well as other injuries. 6. Based on my comprehensive analysis ofthe aforementioned pleadings, transcripts and medical records concerning the plaintiff, it is my opinion to a reasonable degree ofmedical certainty that Dr. Brennan at all times appropriately in his care and treatment of the plaintiff. Dr. Brennan properly performed an orthopedic consultation on the night of July 1, 2011 by properly eliciting aFILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 past medical history, performing a thorough and proper physical examination, reviewing the prior radiology tests, ordering the proper treatment and making a proper diagnosis. Further, after properly and timely referring the plaintiff to SBUH for further evaluation including a vascular surgery consultation, Dr. Brennan timely and properly treated the plaintiff's dislocated elbow and properly coordinated her care and treatment by ordering the proper tests and consultations. At no time during his care and treatment of the plaintiff, did Dr. Brennan deviate from the standard of care. Furthermore, it is my opinion to a reasonable degree of medical certainty that no act or omission by Dr. Brennan in any contributed or caused the injuries plaintiff's-decedent alleges. STATEMENT OF FACTS 7. On June 30, 2011, the then-61-year-old morbidly obese plaintiff fell in her home and was brought to PBMC to the emergency department, where she was treated by attending physicians Drs. McMahon and Wackett. Ms. Sessa was noted to have a past medical history of diabetes and 5'2" hypertension. She was and weighed 122Kg (269lbs). She was discharged on July 1, 2011 at approximately 4:40a.m. with a dislocated elbow that was reduced twice under conscious sedation and directed to follow up with an orthopedist the following day. 1" 8. Ms. Sessa returned to PBMC at approximately 7:10p.m. on the evening of July after presenting to her primary care physician, Dr. Singh who referred her to the emergency room. She was seen by the defendants, Drs. Ehlers and Cox, who contacted the defendant orthopedist, Dr. Brennan for an orthopedic consult due to concerns about her pain and the possibility of compartment syndrome. Dr. Brennan reviewed the plaintiffs chart and x-rays, elicited a medical history and performed a physical examination. Dr. Brennan noted in his typed consultation report in the PBMC records the following: ~ She complained of numbness in her left hand since the time of the fall;FILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 • She returned to the ER due to increasing and swelling pain; He' • He was contacted for consultation as compartment syndrome and possible vascular issues were being considered. (See, Exhibit F). 9. Substantial swelling about the entire left arm, including ecchymosis and blistering in the antecubital fossa was appreciated by Dr. Brennan during his examination. Ms. Sessa reported to Dr. Brennan that she was experiencing dense numbness in her entire hand and was unable to significantly move it. Dr. Brennan observed good capillary refill in the left hand but her pulses were not palpable in the left arm below the wrist. Dr. Brennan reviewed the x-rays of the left elbow that revealed significant subluxation of the elbow joint with possible dislocation. 10. Dr. Brennan documented in his note and testified at his deposition that he was concerned about vascular compromise as he felt that Ms. Sessa did not have compartment syndrome as he was able to easily palpate her compartments. He also requested an ultrasound of the right arm that was unable to visualize blood flow in the brachial artery to the radial and ulnar arteries from the elbow to the hand. As a result, Dr. Brennan ordered the plaintiff transferred to SBUH for a vascular surgery consultation as this was not available at that time at PBMC. 2nd 11. The plaintiff was admitted to SBUH from July through August9, 201 1. The triage note timed at 2:39a.m. noted a chief complaint of left arm injury, arterial occlusion. It was noted in the SBUH chart and reported to Dr. Brennan that shortly after arrival, both the vascular surgery and orthopedic teams had seen the plaintiff in the SBUH emergency room. Dr. Brennan testified that he was in contact with Dr. Pakh the chief orthopedic resident at SBUH multiple times. Dr. Brennan also explained that he wanted additional x-rays performed and orthopedic physical examinations to determine if surgical intervention would be required to address the dislocated left elbow. He continued to discuss the plaintifFs care and treatment with Dr. Hussein, the orthopedic resident whoFILED: SUFFOLK COUNTY CLERK 03/02/2018 04:39 PM INDEX NO. 014578/2013NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/02/2018 came on aner Dr. Pakh. Dr. Brennan was informed by Dr. Pakh that the vascular surgical team had evaluated the plaintiff and her vascular status was stable. 12. As the day progressed on July 2, 2011, Dr. Hussein, the orthopedic chief resident, informed Dr. Brennan that the x-rays of the plaintiff's left elbow continued to demonstrate instability and the orthopedic teams attempts to achieve a better reduction of the left elbow was unsuccessful, so by 5pm, Dr. Brennan and his team decided that they would examine the elbow flouroscopically, and place an external fixator to hold the elbow in correct anatomical position if deemed necessary. 13. On July 3'd, Dr. Brennan performed an examination and documented that there was continued instability of the left elbow and he documented in the chart that he discussed this with the plaintiff in detail. The plaintiff understood the plan and wished to proceed with the examination under flouroscope and possible placement of an external fixator. Dr. Brennan testified that her physical examination was essentially unchanged from PBMC and that he discussed the procedure with Ms,. Sessa and specifically, if they could not achieve good reduction under fluoroscopic I evaluation, she may need an external fixator. 

Related Contentin Albany County