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Collazo v. Gulmatico

Collazo v Gulmatico 2024 NY Slip Op 33096(U) September 4, 2024 Supreme Court, Kings County Docket Number: Index No. 505790/2021 Judge: Consuelo Mallafre Melendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

Recitation, as required by CPLR §2219 [a], of the papers considered in the review:

Defendant Constantino Gulmatico, M.D. (“Dr. Gulmatico”), moves (Seq. No. 3) for an Order, pursuant

to CPLR 3212, granting summary judgment in his favor, or granting partial summary judgment and a limitation

of the triable issues.

Defendants Wigbert S. Godoy, M.D. (“Dr. Godoy”) and Beth Israel Medical Center s/h/a Mount Sinai

Brooklyn Hospital (“Mount Sinai Brooklyn”; and together, “MSB Defendants”) separately move (Seq. No. 4)

for an order, pursuant to CPLR 3212, granting summary judgment in their favor, dismissing Plaintiffs’

complaint against them, and amending the caption to remove them from the action.

Defendants Umut Sarpel, M.D. (“Dr. Sarpel”), Kusuma Nio, M.D. (“Dr. Nio”), and Mount Sinai

Morningside s/h/a Mount Sinai St. Lukes Hospital (“Mount Sinai Morningside”; and together, “Morningside

Defendants”) separately move (Seq. No. 5) for an order, pursuant to CPLR 3212, granting summary judgment

in their favor and dismissing Plaintiffs’ complaint against them.

Plaintiffs commenced this action on March 11, 2021, asserting claims of medical malpractice and lack

of informed consent in connection with treatment and care rendered to Andres Collazo (“Mr. Collazo” or “the

patient”) from July 23, 2020 to August 12, 2020, including a surgery which took place on July 24 at Mount

Sinai Brooklyn and two follow-up surgeries at Mount Sinai Morningside. Co-plaintiff Amelia Collazo also

asserts a loss of services claim.

Mr. Collazo, then 62 years old, was admitted to Mount Sinai Brooklyn from the emergency department

on July 23, 2020, with symptoms including epigastric/abdominal pain and elevated white blood cell count. An

abdominal CT scan showed acute calculous cholecystitis (inflammation of gallbladder) and a gallstone

measuring 1 cm. After admission to the medical floor, he was treated by attending physician Abdo Balikcioglu,

M.D. (“Dr. Balikcioglu”), surgical consult Dr. Gulmatico, and cardiology consult Augusto Paiusco, M.D. (“Dr.

Paiusco”), among others. Dr. Paiusco, the cardiologist, evaluated him as “intermediate risk” overall for surgery

and recommended withholding Plavix, a blood thinner he was prescribed for prior cardiovascular disease.

On July 24, 2020, at 4:51 p.m., Dr. Gulmatico performed a laparoscopic cholecystectomy (gallbladder

removal) as the primary surgeon, with assistance from general surgeon Wigbert Godoy, M.D. (“Dr. Godoy”).

Dr. Gulmatico authored an operative report following the surgery on July 24, in which he reported that the

gallbladder was initially covered with the omentum, and there was some oozing from the gallbladder bed after

dissection which was “controlled using electrocautery.” He placed a Jackson-Pratt drain to collect fluid. He

recorded the patient was “fairly stable” after a relatively “unremarkable” procedure. Dr. Gulmatico also

authored a second operative report on July 30 with more detail. Dr. Godoy’s role in the surgery, according to

operative reports and testimony of the doctors, was limited to placing trocars, holding graspers and sutures, and

maneuvering the camera.

The patient remained at Mount Sinai Brooklyn for post-operative monitoring through July 28, 2020. In

the days following the surgery, he had serosanguinous drainage in the Jackson-Pratt drain without gross blood.

He was restarted on Plavix by cardiologist Dr. Paiusco on July 26. Dr. Gulmatico examined the patient on July

27, noting his abdomen was “soft, non-distended [with] minimal trocar site tenderness,” and cleared him for

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discharge pending evaluation by the cardiologist. Dr. Paiusco examined him on July 28, noting elevated

troponin but assessing him as stable for discharge. He was discharged home by attending physician Dr.

Balikcioglu around 2:30 p.m.

The following morning at approximately 8:30 a.m., the patient returned to Mount Sinai Brooklyn with

acute onset abdominal pain. He was admitted to the ICU at 11:39 a.m. A CT scan of the abdomen and pelvis

revealed a large amount of blood. At 2:35 p.m., a CT angiogram was performed but “failed to demonstrate [the]

source of bleeding” (Mount Sinai Brooklyn July 29 records, at 11). He received three blood transfusions. He

was examined by Dr. Gulmatico at 7:15 p.m. and ultimately transferred to Mount Sinai Morningside “for

further close monitoring and to have interventional radiology and possible embolization of the site of bleeding,

if necessary.” He was diagnosed with “post-op intra-abdominal hematoma.”

On July 29, the patient arrived at Mount Sinai Morningside ICU at 7:49 p.m. General surgeon Dr. Nio

co-signed a resident’s note to “closely monitor vitals” and perform serial blood tests, and to proceed to

exploratory surgery if his condition worsened.

On July 30, Dr. Nio noted his dropping hematocrit and worsened transaminitis (liver enzymes) and

brought the patient to the operating room. Dr. Nio performed a laparoscopy, which was converted to an open

laparotomy, and liver specialist Dr. Sarpel took over this portion of the surgery. The procedure revealed a large

amount of blood around the liver and spleen and a “large subcapsular hematoma at segment VI of the liver.”

According to the operative report, after surgically removing or “deroofing” the hematoma, “there was a large

liver laceration with active bleeding.” The active bleeding was controlled, but the patient became

hemodynamically unstable and had to be transferred to the SICU with an open abdomen and temporary

packing. Dr. Sarpel’s operative report similarly stated that “the hematoma was unroofed and we exposed the

underlying hepatic parenchyma. There was a laceration in the liver within which there was active bleeding from

a branch of an hepatic vein.”

The following day, July 31, Dr. Nio performed a third surgery to remove the packing and close the

abdomen. Some “minimal oozing from segment VI of the liver” was cauterized. The patient was placed on a

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mechanical ventilator due to respiratory complications following this operation, and he was extubated on

August 3, 2020. An echocardiogram and his troponin levels indicated that he had suffered either a type II or

type I myocardial infarction. The patient was discharged from Mount Sinai Morningside on August 12, 2020.

The patient returned to Mount Sinai Morningside on August 14 and underwent additional treatment for a

transverse colon ulcer.

Plaintiffs allege that the patient’s liver laceration, subcapsular hematoma, and subsequent hemodynamic

instability and cardiovascular complications were proximately caused by departures from the standard of care at

Mount Sinai Brooklyn during and after the July 24 surgery. Plaintiffs also allege that the Mount Sinai

Morningside defendants proximately caused his hemodynamic and cardiac complications by delaying diagnosis

and proper surgery from July 29-30.

“In determining a motion for summary judgment, the court must view the evidence in the light most

favorable to the nonmoving party” (Stukas v Streiter, 83 AD3d 18, 22 [2d Dept 2011]). In evaluating a

summary judgment motion in a medical malpractice case, the Court applies the burden shifting process as

summarized by the Second Department:

In support of Dr. Gulmatico’s summary judgment motion (Seq. No. 3), the movant submits an expert

affirmation from Michael G. Persico, M.D. (“Dr. Persico”), a licensed physician certified in surgery, as well as

medical records and deposition transcripts.

Based on the record and his expertise, Dr. Persico opines that there were no departures from the standard

of care in Dr. Gulmatico’s performance of the July 24 surgery or any pre- or post-operative treatment. Specifically,

Dr. Persico opines that the decision to perform a laparoscopic cholecystectomy was appropriate, given the

patient’s symptoms and history (“two prior bouts of cholecystitis”) and his risk assessment and “clearance” from

the cardiology consult.

Dr. Persico opines that the bleeding or oozing from the liver bed during surgery was “not unusual” and it

was appropriately cauterized by Dr. Gulmatico. The expert opines that the patient’s post-operative hematoma

complication was “due to bleeding from a vein in the liver” and had no connection to this intraoperative bleed.

Following the surgery, Dr. Persico opines that Dr. Gulmatico was “not made aware” of the patient’s H&H

levels which had dropped to 9.9 and 30.9 on the date of his discharge, and those values nonetheless “did not

require investigation or keeping the patient in the hospital since he was doing well clinically.” Dr. Persico opines

that this was a “slight and insignificant drop” after multiple “stable blood counts,” which did not indicate an active

bleed.

Dr. Perisco further opines that there was no reason not to discharge the patient on July 28. He opines that

Dr. Gulmatico was not responsible for the alleged improper discharge of the patient on July 28, as he only

approved his discharge from a “surgical standpoint” – which the expert opines was appropriate – and the decision

to discharge was ultimately made by the cardiologist and attending physician.

On the issue of proximate causation, Dr. Persico states that the patient “did not suffer a laceration of his

liver in the sense that his liver was cut or lacerated with a surgical instrument,” but rather, he experienced a

hematoma complication after the surgery which ultimately caused bleeding within the liver. He bases this on the

language used by Dr. Nio and Dr. Sarpel in their operative reports at Mount Sinai Morningside and their

deposition testimony, as well as his review of the post-operative records. He opines that if there had been a true

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laceration of the liver during the July 24 surgery, “it would have bled immediately” and this bleeding would have

been noticed during the procedure or obvious from his lab work and symptoms following the surgery. He opines

that the patient’s “benign post-op course,” including the lack of gross blood in his Jackson-Pratt drain, his “stable

blood counts,” and the lack of “extreme pain,” evince that he did not have an active bleed from a liver laceration

during the surgery, but a subcapsular liver hematoma which subsequently bled.

Dr. Persico opines that the type of subcapsular hematoma developed by the patient “is not the result of

poor surgical technique” but a potential complication of the surgery, and the risk was increased by the use of

Plavix and aspirin during his recovery. Therefore, Dr. Persico opines that there was no negligence in the

performance of the July 24 surgery which proximately caused the hematoma, nor were there any departures from

the standard of care in his post-operative treatment and July 28 discharge. Dr. Persico also opines that a subsequent

gastrointestinal bleed for which the patient was readmitted to Mount Sinai Morningside on August 14 was “due

to his being on Plavix” and had “no relationship to his liver injury.”

Finally, the expert notes that “Mr. Collazo signed a surgical consent” after being advised by Dr. Gulmatico

of the risks, as well as having a discussion of the risks associated with anesthesia, and therefore Dr. Gulmatico

seeks to dismiss the informed consent cause of action. Plaintiffs do not oppose this branch of the motion.

Dr. Gulmatico has established prima facie entitlement to summary judgment in his favor by submitting an

expert affirmation setting forth, based on the record, that Dr. Gulmatico did not depart from the standard of care

in the cholecystectomy, and that the post-operative bleeding in Mr. Collazo’s liver was a rare complication that

was not proximately caused by surgical error or negligence. The burden therefore shifts to Plaintiffs to raise an

issue of fact.

In opposition, Plaintiffs submit an expert affirmation from a licensed physician certified in surgery (name

of expert redacted), who affirms that they have “performed thousands of laparoscopic cholecystectomy

procedures” and “managed the pre- and post-operative care of such patients, including hemorrhagic

complications.” Plaintiffs also submit an expert affirmation from a licensed physician (name of expert redacted),

certified in cardiovascular diseases and nuclear cardiology.

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Contrary to Dr. Gulmatico’s argument in reply, a plaintiff may submit an expert affirmation where the

affiant’s name and signature have been publicly redacted but were made available to the court for in camera

inspection. “A redacted physician’s affirmation should not be considered in opposition to a motion for summary

judgment where the plaintiff does not offer an explanation for the failure to identify the expert by name and does

not tender an unredacted affirmation for in camera review” (Richter v Menocal, 216 AD3d 823, 824 [2d Dept

2023]). Here, Plaintiffs have submitted the signed, unredacted original copies of the affirmations for in camera

inspection, but have redacted the affirmations to the opposing party and public to protect the identity of said

experts, as they are permitted not to disclose them at this stage under CPLR 3101 (d)(1)(i) (see Turi v Birk, 118

AD3d 979, 980 [2d Dept 2014]; McCarty v Community Hosp. of Glen Cove, 203 AD2d 432 [2d Dept 1994]). The

experts have also laid a proper foundation of their background and qualifications to opine on the alleged

malpractice at issue. Therefore, this Court shall consider Plaintiffs’ expert affirmations.

Based on their review of the record and relevant expertise, Plaintiffs’ surgical expert opines that a

laceration to the patient’s liver was caused by a failure to “properly identify and protect the organs during

dissection of the gallbladder off the liver bed and lysis of adhesions” during the July 24 cholecystectomy. The

expert opines that Dr. Gulmatico, as primary surgeon, was responsible for all decisions and aspects of the surgery.

The surgical expert opines that the operative report and subsequent signs of bleeding suggest that the

laceration occurred when Dr. Gulmatico and assisting surgeon Dr. Godoy encountered the gallbladder covered

with omentum, used “blunt and sharp dissection” to remove the gallbladder from the liver bed, and observed

bleeding in the area of the liver bed which he reported was cauterized.

The expert disagrees with Dr. Persico’s analysis that Mr. Collazo had only a subcapsular hematoma – a

rare but non-negligent complication of the surgery – and not a “true” laceration. Plaintiffs’ expert notes that the

post-operative diagnosis from the patient’s subsequent surgery at Mount Sinai Morningside was “intrabdominal

hemorrhage, liver laceration.” The operative report of Dr. Nio read “Upon evacuation of the subcapsular

hematoma, there was a liver laceration with active bleeding,” and in an operative note opined that the laceration

was “sustained likely during his laparoscopic cholecystectomy.” Plaintiffs’ expert interprets the record to show

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that the patient had a subcapsular hematoma and grade III laceration, and the expert further opines that “these

types of injuries to the liver do not occur in the absence of negligence.” The expert opines that Dr. Gulmatico

departed from the standard of care by not noticing and repairing an intraoperative laceration.

The expert further states that a subcapsular hematoma in segment VI of the liver alone “is not an acceptable

risk and does not occur in the absence of negligence,” opining that this injury would be caused by blunt trauma

or too much pressure on the liver.

Additionally, the expert opines that Dr. Gulmatico departed from accepted standards of care by allegedly

failing to monitor and evaluate the patient’s blood work for signs of active bleeding before he was discharged

from Mount Sinai Brooklyn. The expert notes that there was a “significant drop” in his H&H values on July 28,

the same day he was discharged, from 11.5 / 37.8 the day before to 9.9 / 30.9 at 4:35 a.m. The expert opines this

drop in hematocrit equates to losing “approximately 2-3 units of blood,” and this required additional

hospitalization in accordance with the standard of care.

Finally, the expert opines that Dr. Gulmatico failed to appreciate other clinical findings including the

amount of serosanguinous fluid in the Jackson-Pratt drain, which the expert opines “was not within the normal

range” (30cc the evening of July 24, 50ml of drainage over 12 hours on July 25, and 30cc within 24 hours on July

27). The expert opines, contrary to Dr. Gulmatico’s note that there was “minimal” drainage, these findings may

indicate post-surgical bleeding, and the standard of care would be to perform an abdominal CT scan and

ultrasound in these circumstances. The expert also opines that pain, abdominal distention, and tenderness were

repeatedly noted in the patient’s chart by nurses and physicians on July 25, 26, 27, and 28. The expert opines that

these symptoms warranted an abdominal CT scan to rule out “surgical complication and/or bleeding,” and not to

perform this test was a departure from the standard of care.

Plaintiffs’ cardiology expert also opines that the H&H levels on the morning of July 28 constituted a

“significant drop” that should have been appreciated by Dr. Gulmatico and other Mount Sinai Brooklyn staff. The

cardiology expert opines that as the primary surgeon, Dr. Gulmatico “had the responsibility to review the patient’s

chart, be aware of the most recent laboratory values prior to discharge, communicate with the other treating

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physicians, and ultimately make the decision whether to discharge the patient.”

In reply, Dr. Gulmatico submits a supplemental affirmation from the expert Dr. Persico, further addressing

Plaintiff’s expert opinions on the patient’s post-operative condition and whether it was within normal/stable range

prior to his discharge, addressing the H&H levels, serosanguinous drainage, and tenderness/distention.

Plaintiffs’ experts raise issues of fact as to whether Dr. Gulmatico departed from the standard of care in

performance of the July 24 surgery and whether those departures proximately caused a laceration to the patient’s

liver and a subcapsular hematoma in the liver, resulting in a bleed, reparative surgery, and further complications.

Both parties argue that the other’s surgical expert mischaracterizes the “laceration” injury to the patient’s liver

and its source. “When experts offer conflicting opinions, a credibility question is presented requiring a jury's

resolution” (Stewart v. North Shore University Hospital at Syosset, 204 AD3d 858, 860 [2d Dept. 2022], citing

Russell v. Garafalo, 189 A.D.3d 1100, 1102 [2d Dept. 2020]). Plaintiffs’ expert also raises issues of fact as to

whether Dr. Gulmatico departed from the standard of care by failing to closely monitor or appreciate post-

operative symptoms, including abdominal pain and distention, and order radiological tests before recommending

the patient was ready for discharge from a “surgical standpoint.”

The Court notes that new arguments and evidence raised in reply are generally improper in a summary

judgment motion, unless responding to a new theory raised by the plaintiff (see generally Gelaj v Gelaj, 164

AD3d 878 [2d Dept 2018]; Feliciano v New York City Health and Hospitals Corp., 62 AD3d 537, 538 [1st Dept

2009]). The opinions of Plaintiffs’ experts with regard to the patient’s post-operative clinical findings and the

appropriateness of his discharge could have been anticipated from the bill of particulars. Further, the expert

already opined generally in the initial supporting papers that the patient was not improperly discharged. In any

case, the conflicting opinions of the experts only further establish that there are issues of fact which preclude

summary judgment.

Notwithstanding the above, Plaintiffs raise no issues of fact on the issue of informed consent and they do

not oppose the part of the motion seeking to dismiss the informed consent claim. Accordingly, Dr. Gulmatico’s

motion is granted to the extent of dismissing the informed consent claim only, and the motion is otherwise denied.

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Additionally, to the extent that Plaintiffs’ experts opine on Dr. Gulmatico’s role in Mr. Collazo’s

readmission to Mount Sinai Brooklyn on July 29 and the alleged delays in diagnosing an active bleed or

transferring him to Mount Sinai Morningside, Plaintiffs asserted no claims related to this treatment period in the

bill of particulars, nor were they addressed in Dr. Gulmatico’s moving papers. The Court therefore does not

make any ruling on these claims.

Turning to the motion of assistant surgeon Dr. Godoy and Mount Sinai Brooklyn (Seq. No. 4), the

movants submit an expert affirmation from Dan S. Reiner, M.D. (“Dr. Reiner”). Dr. Reiner sets forth that he is a

licensed physician certified in general surgery and affirms he has training and experience in performing

laparoscopic and open cholecystectomies.

Based on the record, Dr. Reiner opines that there were no departures from the standard of care from Dr.

Godoy in performance of the July 24 surgery, nor any departures from other Mount Sinai Brooklyn staff¹ in the

pre- or post-operative care of the patient through his discharge on July 28.

On the claims against Dr. Godoy, Dr. Reiner opines that his surgical assistance during the July 24

laparoscopic cholecystectomy was in accordance with the standard of care. Dr. Reiner notes that it is undisputed

in the record that Dr. Gulmatico was the primary surgeon in the July 24 procedure, and Dr. Godoy was a “house

surgeon” (not resident) at Mount Sinai Brooklyn who was asked to assist. Dr. Godoy was not involved in any

other pre- or post-operative treatment of the patient. Dr. Reiner opines that Dr. Gulmatico was responsible for

performance, supervision, and any intraoperative decisions, and further opines there is no evidence that Dr.

Godoy acted with independent negligence. Dr. Reiner opines that the surgery was “carried out entirely routinely

and appropriately,” and that the adhesions around the gallbladder were dissected “using known and accepted

techniques” as detailed in the operative report. He also opines that the cauterized bleed during surgery was

“minimal” (50-60 cc’s of blood loss). The expert notes that Dr. Godoy placed two of the trocars (“a long thin

device to which the cameras and surgical instruments are attached”) and he also “held graspers, provided

exposure, maneuvered the camera and held sutures.” He opines that none of these actions “could or did cause a

laceration of the liver or liver vessels.”

On the issue of proximate causation, Dr. Reiner expresses a similar opinion to the co-defendant’s expert,

Dr. Persico, that the alleged “liver laceration” was not actually an injury to the “external capsule of the liver”

which occurred during the July 24 surgery. Rather, he opines that the Mount Sinai Morningside surgeons were

describing “bleeding from a hepatic vein within the liver,” which is “a known but rare complication of

cholecystectomy believed to result from the needed, and proper, dissection and removal of the gallbladder from

the liver bed.” He opines that in most cases this bleeding would stop on its own, but in some cases the patient

develops a hematoma, as seen in the patient here. Therefore, he opines that the patient’s claimed injuries were

not caused by any departures from the standard of care, and the patient’s hematoma was a rare complication

which developed after his surgery despite proper treatment.

Based on the submissions, Dr. Godoy has established prima facie entitlement to summary judgment on

behalf of Dr. Godoy, shifting the burden to Plaintiffs to raise an issue of fact. They establish in detail that, in the

opinion of their medical expert, the July 24 surgery was performed within accepted medical standards, and Dr.

Godoy did not proximately cause a subcapsular hematoma or laceration in his role as an assistant surgeon.

As to the other staff at Mount Sinai Brooklyn, Dr. Reiner opines that the patient was appropriately

monitored and treated post-operatively, and updates to his status were communicated to Dr. Gulmatico through

the hospital’s electronic records system. Dr. Reiner opines that the patient had “very little output” in his

Jackson-Pratt drain which indicated no obvious bleeding, and that his complaints of pain, tenderness, and

abdominal distention were common for post-operative patients and had resolved by the time of his discharge.

Dr. Reiner opines that the patient’s H&H levels were slightly lower but “essentially stable” from the time after

his surgery to July 27, and opines that the decrease was attributable to “normal intra-operative blood loss” and

the fluids and medications he was receiving. Dr. Reiner further opines that the July 28 decrease in his H&H,

while greater than the previous drop, was still “considered stable” for a post-operative patient.

¹¹

Dr. Reiner opines that the Mount Sinai Brooklyn cardiology consult Dr. Paiusco, who examined the

patient on July 28, did not depart from the standard of care in clearing him for discharge, as his “cardiology

findings were similar” to his status before the procedure. He also opines that the attending physician, Dr.

Balikcioglu, appropriately relied on Dr. Gulmatico and Dr. Paiusco’s evaluations and discharged the patient. He

opines that the ultimate decision to discharge him “belonged to Dr. Gulmatico, who was following the patient

post-operatively.”

Dr. Reiner further opines without detail that the alleged improper discharge was not a proximate cause

of the patient’s injuries, because it would not have changed the course of his complications and treatment.

Mount Sinai Brooklyn’s expert has established prima facie entitlement to summary judgment on the

issue of compliance with the standard of care, with respect to direct claims against the hospital staff. The expert

sets forth his opinion based on the record that the patient had a normal and non-concerning post-operative

course with respect to his H&H levels, Jackson-Pratt drainage, and complaints of distention and tenderness, and

that it was not a departure from the standard of care to discharge him from the hospital on July 28. The burden

therefore shifts to Plaintiffs to raise a triable issue of fact on these claims.

Notwithstanding this, the expert’s opinion that the alleged improper discharge was not a proximate

cause of injury and would not have changed the outcome is conclusory and unsupported by evidence in the

record. Therefore, the Plaintiffs need not rebut the issue of proximate causation in opposition.

In opposition to the MSB Defendants’ motion, Plaintiffs submit the same affirmations from their

surgical expert and cardiology expert, which were presented to the Court for in camera inspection.

Plaintiffs’ surgical expert opines, based on the operative reports and the physicians’ testimony, that Dr.

Godoy was an “active participant” not only using trocars and graspers during the cholecystectomy but also

transecting the adhesions when the patient’s gallbladder was covered by omentum. As such, the expert opines

there is an issue of fact as to whether Dr. Godoy or Dr. Gulmatico directly lacerated the liver. Further,

Plaintiffs’ expert opines that the alleged separate injury of a subcapsular hematoma (which the defendants argue

was the only complication) would not happen without applying “excessive force” with graspers, and thus the

¹²

surgeon applying that force departed from the standard of care and caused blunt trauma to the patient which

proximately caused the hematoma.

Plaintiffs raise issues of fact with respect to Dr. Godoy, offering a conflicting expert opinion as to the

type of liver injury and probable mechanism of that injury, which must be resolved by a trier of fact. While an

assistant surgeon is generally not liable for following the decisions made by the primary or lead surgeon (see

generally Pol v Our Lady of Mercy Medical Center, 51 AD3d 430 [1st Dept 2008]), there remain issues of fact,

supported by the Plaintiffs’ surgical expert opinion, as to whether Dr. Godoy directly caused a laceration to the

patient’s liver in his capacity placing the trocars and assisting in removing adhesions, as well as whether Dr.

Godoy caused the patient’s hematoma by using excessive force with the graspers. These issues of fact related to

alleged departures from the standard of care preclude summary judgment in favor of Dr. Godoy. Accordingly,

the branch of the motion seeking summary judgment for Dr. Godoy is denied.

Turning to the direct claims against Mount Sinai Brooklyn, Plaintiffs’ surgical expert opines that the

patient’s physicians, nurses, and physician’s assistants departed from the standard of care by failing to

appreciate or communicate with each other on the patient’s abnormal symptoms and blood work. As discussed

above in Dr. Gulmatico’s motion, Plaintiffs’ expert opines in detail that the patient exhibited an abnormal

amount of serosanguinous drainage, distention, pain, and tenderness, and decreased H&H levels, particularly a

significant drop on July 28 prior to his discharge.

The surgical expert opines that the Mount Sinai Brooklyn cardiologist, Dr. Paiusco, specifically departed

from the standard of care by failing to appreciate the patient’s H&H drop after restarting him on Plavix, and by

clearing the patient for discharge from a cardiology standpoint on July 28 despite this evidence of blood loss.

Plaintiffs’ cardiology expert additionally opines that Dr. Paiusco departed from the standard of care by

failing to note the patient’s significant H&H drop when evaluating him on July 28 and by recommending that he

could be discharged from a cardiology standpoint. The expert opines that this discharge proximately caused the

patient’s delayed diagnosis of an active bleed, leading to hemorrhagic shock, his hemodynamic instability

during further surgeries, and his myocardial infarction.

¹³

Both experts also note that the attending physician, Dr. Balikcioglu, documented and signed the plan to

discharge Mr. Collazo on July 28. The expert opines that he departed from the standard of care by failing to

properly communicate with other providers and physicians’ assistants and appreciate his H&H drop and other

symptoms.

Plaintiffs have raised issues of fact as to the role of attending physician Dr. Balikcioglu and cardiologist

Dr. Paiusco in the patient’s discharge. Plaintiffs’ experts opine that there were symptoms that warranted further

monitoring and radiological studies to rule out a post-operative bleed, which should have been appreciated by

these physicians on July 28 before he was discharged. The conflict between the experts’ opinions on whether

the patient’s July 28 blood labs should have prevented him from being discharged in accordance with the

standard of care creates an issue of fact that must be resolved by a jury.

The moving defendants failed to meet their prima facie burden on the issue of proximate causation,

regarding the post-operative monitoring and discharge claims against the hospital, because their expert merely

stated without detail that the patient’s discharge had no impact on his course of treatment. Notwithstanding,

Plaintiffs raise an issue of fact as to proximate causation, as their experts opine that the alleged delay in

diagnosis and improper July 28 discharge was a proximate cause of the patient’s claimed injuries.

As previously stated with respect to Dr. Gulmatico’s motion, Plaintiffs’ bill of particulars did not assert

any claims or theories of liability related to the patient’s readmission to Mount Sinai Brooklyn on July 29.

However, this readmission was briefly addressed by the movants’ expert, who opined in a conclusory fashion

that the patient was “promptly and properly evaluated” and “properly and timely transferred” to Mount Sinai

Morningside. To the extent these claims were addressed with little detail in the supporting and opposition

papers, the Court does not rule at this time on whether those claims are viable.

Furthermore, Mount Sinai Brooklyn failed to meet their prima facie burden with respect to vicarious

liability for the acts and omissions of co-defendant Dr. Gulmatico. In fact, the movants only briefly address this

issue, setting forth in their attorney affirmation a single statement that “Mr. Collazo was a patient of [Dr.

Gulmatico’s] private practice when treated” at Mount Sinai Brooklyn, and they proceed to place responsibility

on Dr. Gulmatico for decisions regarding the patient’s post-operative treatment and discharge.

It is well established that a hospital is generally liable only for its employees under the doctrine of

respondeat superior. “However, an exception to this general rule exists where a plaintiff seeks to hold a hospital

vicariously liable for the alleged malpractice of an attending physician who is not its employee where a patient

comes to the emergency room seeking treatment from the hospital and not from a particular physician of the

patient’s choosing” (Fuessel v Chin, 179 AD3d 899, 901 [2d Dept 2020], citing Muslim v Horizon Med. Group,

P.C., 118 AD3d 681 [2d Dept 2014]). This long-held exception was set forth in Mduba v Benedictine Hosp. (52

AD2d 450 [3d Dept 1976]), where the court held that a hospital is vicariously liable for the acts and omissions

of a physician it provided to the patient, “having held itself out to the public as an institution furnishing doctors,

staff and facilities for emergency treatment” (id., at 454). Thus, a hospital seeking summary judgment must

demonstrate that the physician alleged to have committed malpractice was an independent contractor and that

this exception to the general rule did not apply.

The hospital has not done so here. Dr. Gulmatico testified that he was an “independent practitioner” with

admitting privileges at the hospital at the time of the surgery. However, his relationship to the patient was

entirely limited to the surgery itself and post-operative care at the hospital. Dr. Gulmatico testified in his

deposition that Mr. Collazo was not an existing patient of his, but he “became a patient of mine” after he

presented at Mount Sinai Brooklyn with “abdominal pain, fever and nausea.” The patient and his spouse/co-

plaintiff Amelia Collazo also testified that they had never met the surgeon, Dr. Gulmatico, prior to Mr.

Collazo’s admission to Mount Sinai Brooklyn. The record indicates that Mr. Collazo was not referred to or

admitted to the hospital as a private patient of Dr. Gulmatico, but rather, he presented without a private surgeon

to the emergency department and was furnished an appropriate specialist by the hospital.

As a matter of law, Mount Sinai Brooklyn has failed to demonstrate that they are not liable for the acts

of Dr. Gulmatico, regardless of his status as an employee or independent contractor, as they have not shown Mr.

Collazo presented at the hospital “seeking treatment from a privately selected physician rather than from the

¹⁵

hospital itself” (see Fuessel, at 901-902, citing Mduba, 52 AD2d 450). For this reason, summary judgment must

be denied as to any vicarious liability claims against the hospital for the acts and omissions of Dr. Gulmatico.

The motion is also denied with respect to vicarious liability claims against Mount Sinai Brooklyn for the

acts of employees and staff including cardiologist Dr. Paiusco and attending physician Dr. Balikcioglu, as

Plaintiffs have raised triable issues of fact as to liability.

Notwithstanding the above, the movants’ experts opine that there is no merit to the informed consent

claims against Mount Sinai Brooklyn, as the risks were appropriately communicated to the patient and consent

was obtained, and there is also no evidence to support a negligent hiring claim. Plaintiffs submit no opposition

to this part of the motion. Accordingly, the branch of the motion seeking summary judgment and dismissal of

the claims for lack of informed consent and negligent hiring, only, is granted without opposition.

In support of the Morningside Defendants’ motion for summary judgment (Seq. No. 5), the movants

submit an expert affirmation from Michael D. Kluger, M.D. (“Dr. Kluger”), a licensed physician certified in

surgery and fundamentals of laparoscopic surgery. The movants also submit an expert affirmation from Edward

Katz, M.D. (“Dr. Katz”), a licensed physician certified in internal medicine and cardiovascular diseases.

Based on the record, Dr. Kluger opines that there were no departures from the standard of care from Dr.

Sarpel, Dr. Nio, or any other physicians or personnel at Mount Sinai Morningside in treating the patient. He

notes that the patient arrived at Mount Sinai Morningside on the evening of July 29 was admitted to the ICU at

approximately 8:30 p.m. Dr. Nio performed a surgical consult and reviewed the CT scan which had been

performed at Mount Sinai Brooklyn. Dr. Kluger opines that ordering serial blood counts was appropriate within

the standard of care, as was the plan to closely monitor the patient and “try to stabilize Mr. Collazo overnight

with blood products” rather than proceed immediately to surgery. Dr. Kluger opines that the CT scan and

angiogram performed earlier that day at Mount Sinai Brooklyn “did not show active bleeding,” and given the

risks associated with surgery, it was reasonable to attempt to stabilize the patient, as it was possible he could

“eventually reabsorb a hematoma thus avoiding surgical intervention.” The expert opines that Dr. Nio

appropriately proceeded to exploratory surgery on July 30, with consent from Mr. Collazo, based on declining

status of his hematocrit and transaminitis.

Dr. Kluger further opines, based on the operative reports, that the surgery was performed in accordance

with the standard of care. Dr. Nio began a diagnostic laparoscopy which was converted to a laparotomy after

discovery of a large amount of bleeding. Dr. Sarpel, a liver specialist previously consulted by Dr. Nio, took over

the surgery once the injury to the liver became apparent. Dr. Kluger explains that Dr. Sarpel deroofed/surgically

removed the hematoma and utilized a Pringle maneuver, applying a clamp to minimize blood loss, which Dr.

Kluger opines was the standard of care and a course of action with “no alternative.” At that time, the patient

became hypotensive and needed to be resuscitated; Dr. Kluger opines that the decision to temporarily stop the

surgery, place a temporary dressing, and transfer him to the SICU was “proper in all respects.”

After stabilization, Dr. Kluger opines that the final July 31 surgery performed by Dr. Nio, in which the

bleeding from segment six of the liver was cauterized and his abdomen was closed, was performed within the

standard of care, and there were no departures from acceptable standards in his post-operative treatment and

discharge.

On the issue of proximate causation, Dr. Kluger opines without detail that Mr. Collazo’s blood loss and

shock “were unavoidable once he was transferred” to Mount Sinai Morningside, and that earlier surgical

intervention would not have altered this outcome.

Dr. Kluger notes that the patient returned to Mount Sinai Morningside on August 14, shortly after his

discharge, with “bright red blood from his rectum after a bowel movement.” He received additional treatment

for this condition through August 20, including a colonoscopy, which revealed an ulcer in the transverse colon.

Dr. Kluger opines this condition and treatment was related to his “preexisting history of gastrointestinal

bleeding and the required treatment with dual antiplatelet therapy,” and it was unconnected in any way to the

surgeries performed by Dr. Sarpel and Dr. Nio.

Additionally, the movant’s cardiology expert, Dr. Katz, opines that discontinuance of the patient’s dual

antiplatelet therapy (aspirin and Plavix) in his initial evaluation at Mount Sinai Morningside was in accordance

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with the standard of care, due to the patient’s “urgent situation of life-threatening bleeding.” Dr. Katz also

opines that the standard of care did not require obtaining a cardiology consultation prior to the patient’s surgery

on July 30, because “at the time the decision was made to consider surgery, Mr. Collazo’s surgery was

emergent.” Dr. Katz also opines that the only recommendation a cardiologist would have made in this position

would have been to halt his blood-thinner medication – Plavix and aspirin – which was already being done, and

therefore a consultation would not have altered his course of treatment.

Dr. Katz also opines based on the record that at most a type II myocardial infarction (which would

“inflict less damage on the heart” than a type I myocardial infarction) occurred during the surgery, and the

expert opines this was the result of his “unavoidable and unpreventable” amount of blood loss, hypotension, and

hemodynamic instability, not any deviations from the standard of care from Mount Sinai Morningside.

Based on the submissions, the Morningside Defendants have established prima facie entitlement to

summary judgment, setting forth in their experts’ opinions that there were no departures from the standard of

care in the performance of the July 30 and July 31 surgeries, nor in his pre- or post-operative care. To the extent

that a derivative “loss of services” claim cannot survive in the absence of medical malpractice, they also meet

their prima facie burden to dismiss co-plaintiff Amelia Collazo’s cause of action. However, the expert’s

opinions on proximate causation are conclusory and do not establish prima facie that earlier surgical

intervention would not have altered the patient’s outcome.

In opposition, Plaintiffs submit an expert affirmation from their licensed surgeon and cardiologist,

(names of experts redacted). As previously discussed, these expert’s names and signatures were submitted to the

Court for in camera inspection, and they have established their qualifications to opine on the facts at issue.

Based on the records and their relevant expertise, Plaintiffs’ surgery expert opines Mount Sinai

Morningside, through its physicians including Dr. Nio and Dr. Sarpel, departed from the standard of care by

failing to timely diagnose the patient’s liver injury and delaying the laparotomy to identify and repair the source

of bleeding. The expert notes that the patient had first presented to Mount Sinai Brooklyn the morning of July 29,

and he was transferred to Mount Sinai Morningside approximately twelve hours later at 8:43 p.m. with “acute

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blood loss, anemia, hemorrhagic shock secondary to hemoperitoneum (bleeding within the abdominal cavity) in

setting of recent laparoscopic cholecystectomy, transaminitis likely in setting of shock liver, and leukocytosis

likely in setting of hemoperitoneum.”

Dr. Nio signed off on a plan of treatment to discontinue Plavix, monitor his H&H and vitals, and order

exploratory surgery if needed. Plaintiffs’ expert opines, however, that this was insufficient and a departure from

the standard of care. In the expert’s opinion, all evidence pointed to an “active abdominal bleed,” including his

CT scan from Mount Sinai Brooklyn and “continued anemia despite three blood transfusions” with abnormally

low H&H levels. Although those levels moderately improved at 9:47 p.m. (9.7 / 29), the expert opines these

numbers still suggested a bleed and the improvement was only temporary. The expert opines that the fact his

angiogram from Mount Sinai Brooklyn did not locate the source of bleeding did not rule out an active bleed. The

expert counters Dr. Kluger’s opinion that it was reasonable for Dr. Nio to try to stabilize him overnight simply

because it is “possible” to reabsorb a hematoma, opining that the standard of care “required urgent surgical

intervention as opposed to continued monitoring and blood transfusions,” particularly in light of the fact he had

already been hospitalized at Mount Sinai Brooklyn since that morning and his condition had failed to improve.

Further, the expert notes that another H&H drop occurred at 1:20 a.m. (9.2 / 27.2), but it was still approximately

13 hours before the patient received surgery, despite these declining H&H levels being noted in Dr. Nio’s decision

to proceed to surgery. The expert opines that more timely surgical intervention was required by the standard of

care.

Plaintiffs’ expert further opines that given the evidence of an active bleed, it was a departure from the

standard of care for Dr. Nio to begin with an exploratory laparoscopy rather an open laparotomy, which the

surgery was then converted to. The expert opines the initial choice to perform a laparoscopy was “time-wasting”

and a proximate cause of Mr. Collazo’s continued hemorrhage and hemodynamic instability.

On Dr. Sarpel, Plaintiffs’ expert opines that, based on her testimony that she had been contacted about the

patient by Mount Sinai Brooklyn’s attending physician Dr. Balikcioglu prior to his arrival, she should have taken

a more active role in his monitoring and treatment and evaluated him when he presented to Mount Sinai

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Morningside. The expert also opines that, as a liver specialist (hepatobiliary surgeon), she should have “been

involved from the beginning of the surgery” rather than relying on general/trauma surgeon Dr. Nio and being

“called in to assist” and taking over once the liver injury and subcapsular hematoma were identified. The expert

opines without detail that Plaintiffs’ complications would have been avoided if she had been the primary surgeon

from the start.

Further, Plaintiffs’ cardiovascular expert opines that it was a departure from the standard of care to delay

the patient’s surgical intervention from his arrival on July 29 at 8:43 p.m. until the following day at 2:26 p.m.

Upon his transfer to Mount Sinai Morningside, the expert notes that he had “acute blood loss, anemia,

hemorrhagic shock due to bleeding within the peritoneal cavity, transaminitis and leukocytosis,” and his CT scan

form 10:00 a.m. that morning at Mount Sinai Brooklyn was “suspicious for active bleeding.”

The cardiovascular expert also opines, based on the patient’s elevated troponin levels, that he had a type

II myocardial infarction resulting from his bleed, anemia, and hypotension. The expert opines that he would not

have had this type II myocardial infarction if the laceration to the liver had been diagnosed and an exploratory

surgery performed sooner at Mount Sinai Morningside.

Plaintiffs have raised issues of fact with respect to the alleged delay in surgical intervention from Dr. Nio

and Mount Sinai Morningside. The experts offer conflicting opinions on whether the patient’s presentation in the

ICU, his prior CT scan and angiogram (indicating or merely “suspicious” for an active bleed), and his H&H levels

demonstrated an active bleed that required immediate surgical intervention, or whether the course of action to

monitor him overnight and perform the surgery the following day was reasonable. Additionally, Plaintiffs’ expert

raises a conflicting opinion – and therefore a triable issue of fact – as to whether Dr. Nio departed from the

standard of care by opting to begin with a laparoscopic procedure prior to the laparotomy. Accordingly, the issues

of the patient’s pre-operative care and the timeliness of the laparotomy must be resolved by a trier of fact, and

summary judgment in favor of Mount Sinai Morningside and Dr. Nio is denied.

Notwithstanding, Plaintiffs raise no opposition as to any informed consent or negligent hiring claims

against the hospital, nor any claims regarding the patient’s July 31 surgery, post-operative care, or his subsequent

²⁰

hospitalization after August 14.

Additionally, Plaintiffs fail to raise a triable issue of fact with respect to any acts or omissions of Dr.

Sarpel. Although Dr. Sarpel testified that she was made aware of the patient’s case due to the possibility of a liver

injury, and she was asked to assist and potentially take over the July 30 surgery, there is nothing in the record

demonstrating she had any decision-making authority with respect to the timing of the surgery or monitoring of

the patient prior to July 30. Further, contrary to the statements made by the Plaintiffs’ surgical expert that she

should have been “involved” from the start of the surgery, Dr. Sarpel’s testimony and operative reports state that

she was present for the surgery, but only took the lead as primary surgeon for the open laparotomy portion and

deroofing of the hematoma. Plaintiffs do not point to any specific errors or departures from the standard of care

made during the surgery that would have been avoided by Dr. Sarpel having the primary surgeon role. Plaintiffs

also do not raise any issues of fact regarding the open laparotomy portion of the procedure performed by Dr.

Sarpel on July 30, and they do not assert any claim that her actions after taking over as primary surgeon were a

cause of the patient’s liver laceration, hemodynamic instability, and/or myocardial infarction.

Additionally, Plaintiffs’ arguments as to causation – stating that the patient’s complications would have

been “more likely” avoided if Dr. Sarpel was involved earlier – are conclusory and speculative, and therefore

cannot defeat the defendant’s prima facie case for summary judgment in favor of Dr. Sarpel.

As the causes of action sounding in medical malpractice against Dr. Sarpel is hereby dismissed, the

derivative claims of co-plaintiff Amelia Collazo are also dismissed as to defendant Dr. Sarpel only.

Lastly, this Court does not consider surreply papers including letters to the court in consideration of a

motion, in accordance with the Part Rules and CPLR 2214. The First Department case cited by defendants, which

was decided before time to reply had expired, is not wholly analogous to this matter nor binding on this Court.

Accordingly, it is hereby:

ORDERED that Dr. Gulmatico’s motion (Seq. No. 3) for an Order, pursuant to CPLR 3212, granting

summary judgment in his favor, is GRANTED TO THE EXTENT of dismissing Plaintiffs’ claims for lack of

informed consent, and the motion is otherwise DENIED; and it is further

²¹

ORDERED that Dr. Godoy and Mount Sinai Brooklyn’s motion (Seq. No. 4) for an Order, pursuant to

CPLR 3212, granting summary judgment in his favor, is GRANTED TO THE EXTENT of dismissing

Plaintiff’s claims for lack of informed consent and negligent hiring, and the motion is otherwise DENIED; and

it is further

ORDERED that Dr. Sarpel, Dr. Nio, and Mount Sinai Morningside’s motion (Seq. No. 5) for an Order,

pursuant to CPLR 3212, granting summary judgment in their favor, is GRANTED TO THE EXTENT of

dismissing Plaintiffs’ complaint against Dr. Sarpel in its entirety, and dismissing any lack of informed consent

and negligent hiring claims against Dr. Nio and Mount Sinai Morningside, and the motion is otherwise

DENIED.

The Clerk shall enter judgment in favor of UMUT SARPEL, M.D.

This constitutes the decision and order of this Court.

ENTER.

Footnotes

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[9] of 22 [* 9] 1 As stated in a footnote in their moving papers, all references made to Mount Sinai Brooklyn “staff” are shorthand for “doctors, physician assistants, nurses and other medical staff, other than Dr. Godoy and codefendant Dr. Gulmatico” (Dr. Reiner affirmation, at 4 [emphasis added]). This includes non-party physicians Dr. Paiusco (cardiologist) and Dr. Balikcioglu (gastroenterologist and attending physician). The movants do not clarify their employer/employee relationship but make no argument that they are not liable for alleged acts and omissions of said physicians. 10

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[21] of 22 [* 21] _______________________________ Hon. Consuelo Mallafre Melendez J.S.C. 22

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