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Small v. Gorga

Small v Gorga 2025 NY Slip Op 31029(U) March 25, 2025 Supreme Court, Kings County Docket Number: Index No. 508137/2021 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.

Defendants Joseph Gorga, M.D. (“Dr. Gorga”), Indley Johnson, M.D. (“Dr. Johnson”), Linda Russo,

M.D. (“Dr. Russo”), Taylor Conrad, M.D. (“Dr. Conrad”), Mircea Privulescu, RN (“RN Privulescu”), George

Joseph, RN (“RN Joseph”), Nel Trasybule, M.D. (“Dr. Trasybule”), David Smith, M.D. (“Dr. Smith”), Jennah

Morgan, M.D. (“Dr. Morgan”), Paul Lam, M.D. (“Dr. Lam”), Aanchal Gupta, M.D. (“Dr. Gupta”), Kings

County Hospital, and New York City Health and Hospitals Corporation (“NYCHHC”) move (Seq. No. 1) for an

Order, pursuant to CPLR 3212, granting summary judgment to all defendants and dismissing all causes of

action in Plaintiff’s Complaint against them.

Plaintiff opposes the motion only as to Dr. Gorga, Dr. Smith, RN Privulescu, and RN Joseph, and as to

the vicarious liability claims against Kings County Hospital/NYCHHC for Dr. Gorga, Dr. Smith, RN

Privulescu, and RN Joseph.

Plaintiff does not oppose the part of the motion seeking summary judgment for Dr. Johnson, Dr. Russo1,

Dr. Conrad, Dr. Trasybule, Dr. Morgan, Dr. Lam, and Dr. Gupta. Plaintiff has discontinued and withdrawn all

claims against these defendants (NYSCEF Doc. No. 138-143, 145). Accordingly, the part of the motion seeking

summary judgment on their behalf, and dismissal of any vicarious liability claims against NYCHHC on their

behalf, is granted without opposition.

Plaintiff commenced this action on April 7, 2021, asserting claims of medical malpractice against the

defendants herein, in connection to treatment and care rendered at Kings County Hospital. Plaintiff alleges that

ICU attending physicians and nurses improperly administered vasopressors from July 30, 2019 through August

⁴, 2019, leading to limb ischemia and amputation of his arms and legs.

Prior to the events at issue, Plaintiff had a history of Crohn’s disease and was on Humira medication for

ten years. On the morning of July 30, 2019, he was transported by EMS to Kings County Hospital with

worsening shortness of breath, hypotension, and lower extremity edema. Upon arrival, he exhibited tachycardia,

extremely low blood pressure, and hypoxic respiratory failure. Epinephrine was ordered by the emergency

department attending physician. Plaintiff was admitted to the ICU with septic shock secondary to pneumonia.

Beginning at approximately 1:34 p.m. on July 30, Plaintiff was treated by attending ICU physician Dr.

Gorga, and by residents and nurses under Dr. Gorga’s direction and supervision. At 4:52 p.m., Dr. Gorga

ordered repeat labs. At 5:44 p.m., an order for vasopressor Levophed was placed at 4mg in 250 mL intravenous

drip (5 mcg/min). At approximately 10:22 p.m., the Levophed concentration was increased to 8mg with a target

mean arterial pressure (MAP) of 60-70 and instructions to increase or decrease the dosage by 2 mcg/min every

five minutes to achieve the target MAP.

On August 1, Dr. Smith took over as the ICU attending physician. Levophed continued to be

administered by IV, and a second vasopressor Vasopressin was added.

RN Privulescu worked various night shifts between July 30 and August 4. RN Joseph worked various

day shifts between August 1 and August 4.

Beginning July 31, Plaintiff’s extremities were noted to be cold to touch. On August 2, a resident

observed Plaintiff had a new onset purpuric rash on both his lower extremities and hands. On August 4, 2019,

non-party Dr. Zulqarnain took over as attending ICU physician. Plaintiff’s assessment and plan was updated to

“taper off” vasopressors and maintain MAP greater than 65. Levophed was discontinued on August 4, and

Vasopressin stopped on August 5. On August 8, Plaintiff was extubated, awake, and able to follow commands.

Subsequently, Plaintiff’s extremities were repeatedly documented to be cold to the touch, pulseless,

necrotic, and “mummified.” He was evaluated for amputation when skin was demarcated. He ultimately

underwent bilaterial trans radial amputation of the arms on October 31, a right below the knee amputation on

November 12, and a left below the knee amputation and sub-radial upper extremity revision amputations on

November 19. He was discharged to Grand Manor Nursing Home on January 7, 2020.

Plaintiff alleges that the ICU physicians and nurses from approximately July 30 through August 4

departed from the standard of care by ordering and administering excessive vasopressors to the patient after his

blood pressure had stabilized. Plaintiff further alleges that this departure proximately caused his injuries,

including the loss of circulation and eventual amputation of his limbs.

In evaluating a summary judgment motion in a medical malpractice case, the Court applies the burden

shifting process as summarized by the Second Department: “[A] defendant must make a prima facie showing

either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured

by any such departure. Once a defendant physician has made such a showing, the burden shifts to the plaintiff to

demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the

prima facie burden. Summary judgment is not appropriate in a medical malpractice action where the parties

adduce conflicting medical expert opinions.” (Rosenzweig v Hadpawat, 229 AD3d 650, 652 [2d Dept 2024]

[internal quotation marks and citations omitted].) However, “expert opinions that are conclusory, speculative, or

unsupported by the record are insufficient to raise triable issues of fact” (Barnaman v Bishop Hucles Episcopal

Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]).

In support of the motion on behalf of the ICU physicians, NYCHHC submits an expert affirmation from

Mark S. Silberman, M.D. (“Dr. Silberman”), a licensed physician board certified in internal medicine,

emergency medicine, and critical care medicine.

Dr. Silberman opines that the vasopressor dosage and instructions ordered for Plaintiff on July 30 (under

attending physician Dr. Gorga) complied with the standard of care. Specifically, he states that Levophed was

ordered by IV drip at a concentration of 4mg in 250 mL, administered at 5 mcg/min (18.8 mL/hour), with a

target MAP of 60-70. The standing order included instructions to increase or decrease infusion by 2 mcg/min

every five minutes “until target is reached” and “when target is reached, continue current infusion and reassess

every hour.” The instructions also stated to notify the physician if the goal MAP was not reached or cyanosis

(blueish discoloration) was observed in the extremities. Dr. Silberman opines that “this dosage of Levophed is

moderate and within the standard of care.”

Dr. Silberman further opines that the Levophed concentration in the IV drip was appropriately increased

to 8 mg in 250 mL at 10:22 p.m. on July 30, with the same instructions to titrate upward or downward to reach

the target MAP. He opines this concentration change was a reasonable response and “met the standard of care”

due to Plaintiff’s low urine output, in order to “prevent fluid overload.”

When Dr. Smith took over as ICU physician on August 1, Dr. Silberman opines that he appropriately

continued the Levophed and added Vasopressin at necessary levels to maintain a MAP greater than 65. He

opines that no edema, rashes, or cyanosis was present at that time, and his “vasopressor requirements were

slowly improving” but they were still required to sustain his target MAP.

On the issue of proximate causation, Dr. Silberman attributes the necrosis in Plaintiff’s extremities to

disseminated intravascular coagulation (“DIC”) and purpura fulminans, which he states is a “complication of

severe sepsis” and could not have been prevented by the treatment and care received at Kings County Hospital.

He opines that although “limb ischemia is a well-known risk associated with pressors,” this was a “minor

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contribution” to his preexisting medical condition, and the vasopressors that may have exacerbated it were

“necessary and appropriate” to save his life and maintain adequate blood pressure and support to his vital

organs during septic shock. Therefore, he opines that his claimed injuries were not caused by any departure

from the standard of care, but instead occurred due to his sepsis and multi-organ failure from a legionella

infection.

The movants also submit an expert affirmation from Steven W. Papish, M.D. (“Dr. Papish”), a licensed

physician board certified in internal medicine and hematology.

As a hematologist, Dr. Papish further opines on the issue of proximate causation. He states that Plaintiff

arrived at Kings County Hospital in the midst of sepsis and multi-organ failure from an ongoing legionella

infection, complicated by his “long-term use of Humira” which suppressed his immune system. Dr. Papish

opines that his limb necrosis was caused by a combination of this existing condition, the “necessary life-saving

pressor support” he received in the emergency department and ICU, and a development of DIC and purpura

fulminans as a complication of sepsis. He opines that the vasopressors were necessitated by his hypotension and

“played a small role” in leaving his “extremities vulnerable to ischemia and gangrene,” but the primary source

of necrosis and eventual amputation was DIC and purpura fulminans.

Finally, the movants submit an expert affirmation from Dial Hewlett Jr., M.D. (“Dr. Hewlett”), a

licensed physician board certified in internal medicine and infectious disease.

Dr. Hewlett concurs with the opinion of the movant’s other experts that the cause of Plaintiff’s claimed

injuries was DIC and purpura fulminans in the context of septic shock, secondary to legionella infection. He

further opines that at the time of arrival, based on his labs and vital signs, he had a 10% chance of survival, and

while the use of vasopressors may have “contributed” to the tissue death in his limbs, they were “necessary and

unavoidable” to stabilize Plaintiff and save his life.

Based on these submissions, the movants have established prima facie entitlement to summary judgment

on behalf of Dr. Gorga and Dr. Smith. They have proffered expert opinions that the use of vasopressors, as

ordered and directed by the attending ICU physicians from July 30 through August 4, was appropriate and

⁵

within the standard of care to maintain the patient’s target blood pressure and they were ultimately discontinued

as his condition changed.

The movants have also established prima facie that no departure from the standard of care was a

proximate cause of Plaintiff’s claimed injuries, opining that his vascular complications were an unavoidable

outcome of his preexisting sepsis and critical condition when he arrived in the ICU. The burden therefore shifts

to Plaintiff to raise issues of fact.

In opposition to the motion, Plaintiff submits an expert affirmation from Vipul Kella, M.D. (“Dr.

Kella”), a licensed physician board certified in emergency medicine.

Dr. Kella notes that vasopressors generally are “life-saving pharmacologic agents” administered to treat

severe hypotension and septic shock by “inducing vasoconstriction” and raising arterial blood pressure. He

opines that the overall protocol for administering vasopressors is to initiate when MAP is below 65,

dynamically adjust to “achieve the lowest effective dose that maintains the target MAP,” wean as stability is

restore to minimize “prolonged exposure,” and continuously monitor for signs of ischemia.

Dr. Kella opines that the attending physicians, Dr. Gorga and Dr. Smith, failed to adequately reassess

and wean Plaintiff from the vasopressors during his initial days in the ICU. Dr. Gorga’s initial instructions

indicated that the Levophed dosage should be titrated upward or downward until the target MAP of 65 was

reached, and then “continue current infusion and reassess every hour” once it was reached. The expert opines

that in accordance with the standard of care “once the target MAP is reached for a sustained period of time of

approximately 10-15 minutes, vasopressor administration must be adjusted” downward. He opines that a patient

consistently reaching the target MAP of 65 should be “weaned off the Levophed aggressively and altogether

discontinued under the direction of the MICU doctor.” In this case, he opines that Plaintiff remained

“hemodynamically stable” on July 31 “and every day thereafter,” but rather than titrating down and

discontinuing the vasopressor medication, Plaintiff continued to receive vasopressors for five days.

Dr. Kella opines that Dr. Gorga departed from the standard of care by failing to wean the patient off

Levophed and in fact entering an order for additional Vasopressin on July 31. He notes that the cardiovascular

⁶

assessment on July 31 read “add Vasopressin if pressor requirement increases.” Dr. Kella opines that the

vasopressor requirement did not increase, as all his readings showed the MAP target of 65 and above was

reached. Dr. Kella counters the opinion of movant’s expert Dr. Silberman and opines that there was “no

justification to add and administer another vasopressor medication” when the target MAP was consistently

reached, yet Dr. Gorga entered an order for 100 mL Vasopressin with no tapering instructions.

Additionally, Dr. Kella opines that Dr. Gorga departed from the standard of care by failing to conduct

doppler tests to measure blood flow on July 31, after the nurse noted at approximately 9:00 p.m. that Plaintiff’s

extremities were cold to the touch. He notes that the standard of care required this fast and noninvasive test “in

the setting of all four extremities cold to touch and two vasopressor medications being administered,” as they

are known to constrict blood flow.

When Dr. Smith took over as attending physician, the expert opines that he departed from the standard

of care by continuing the Vasopressin administration with no tapering instructions. He notes that Dr. Smith

evaluated the patient at 1:33 p.m., but nothing was documented in the chart about his target MAP “having been

consistently reached” or the fact his extremities were cold to touch. Dr. Kella opines that vasopressors were no

longer required at that time and should have been “aggressively weaned off that day.” He notes that the

Levophed was being gradually tapered down, but Vasopressin continued at the maximum dose. He notes that

“the target MAP range of 60-70” was shown “by over thirty-seven arterial line readings between 8:45 a.m. and

11:30 p.m.,” and it never went below 65.

Dr. Kella opines that Dr. Smith also departed from the standard of care in his “delayed recognition and

response” and the patient’s signs of ischemia, specifically his cold extremities and new onset red rashes on his

legs. He opines that in light of these signs and symptoms, Dr. Smith should have discontinued Vasopressin and

ordered Doppler assessments and a vascular consult. He notes that a vascular consult did not evaluate the

patient until August 8, 2019, and this delayed intervention was a departure from the standard of care.

On August 3, Dr. Kella notes that Dr. Smith documented “taper Vasopressin” at the 2:56 p.m.

assessment, but there is no further “explanation as to why it should be tapered or instruction noted.” There was

⁷

no order placed to taper the Vasopressin that day. He notes that Levophed was administered for the last time at

10:00 a.m. “without necessity since the target MAP was reached for days,” but Vasopressin continued until the

following day. He notes that an order to “taper Vasopressin and stop today” was finally entered by the August 4

ICU attending physician Dr. Zulqarnain, a non-party in the action.

On the issue of proximate causation, Dr. Kella counters the opinion of the movant’s expert that

Plaintiff’s limb ischemia was a complication of disseminated intravascular coagulation and purpura fulminans.

He opines that Plaintiff’s record and blood panels were not consistent with a diagnosis of DIC, nor were his skin

manifestations – which “gradual and first noted in the distal extremities” – consistent with the rapid

hemorrhagic necrosis of DIC/purpura fulminans. He also notes that “no specific interventions aimed at treating

purpura fulminans were initiated” and associated infections were never detected. Thus, he opines that the

“overwhelming clinical evidence” supports that Plaintiff’s limb ischemia was proximately caused by the

excessive vasopressor administration constricting his blood flow. Dr. Kella also disagrees with the movant’s

expert that Plaintiff had a “10% or less chance of survival” or that the fact he was on immune-suppressant

Humira was a cause or contributing factor in his limb ischemia and tissue death.

Plaintiff also submits an expert affirmation from Richard Hirschman, M.D. (“Dr. Hirschman”), a

licensed physician board certified in hematology and internal medicine.

Dr. Hirschman offers a counter-opinion to the movant’s hematology expert Dr. Papish as to proximate

causation. He opines that Plaintiff’s limb ischemia and eventual amputations were not the result of sepsis, DIC,

and purpura fulminans. He notes that in multiple occasions within the medical chart itself, the limb ischemia is

attributed to prolonged vasopressors. Aside from a single hematology consult who “stated that the drop in

platelets was likely due to ‘low grade DIC’ in the setting of septic shock,” he was never diagnosed or treated for

DIC or purpura fulminans, and the expert opines in detail that his labs all “suggested low likelihood” that this

was the cause.

Based on the submissions, Plaintiff has raised issues of fact sufficient to defeat the motion for summary

judgment with respect to Dr. Gorga and Dr. Smith. On each physician’s relevant dates of treatment, the experts

⁸

set forth a conflicting opinion on the appropriateness of the prolonged vasopressor orders and the fact that

Plaintiff’s dosage was not reassessed and tapered off. There is a conflict between the experts on the standard of

care for a patient consistently maintaining the “target” blood pressure. Plaintiff’s expert also raises an issue of

fact that the addition of a second vasopressor (Vasopressin) was not indicated, and that it was initiated by Dr.

Gorga and continued by Dr. Smith with no tapering instructions. Plaintiff raises additional issues of fact on their

departures from the standard of care with respect to monitoring the patient’s signs of symptoms of ischemia,

opining that Dr. Gorga failed to order a Doppler test in response to his cold extremities, and Dr. Smith failed to

timely order a Doppler test or vascular consult in response to his skin color changes.

Further, Plaintiff has raised issues of fact on the subject of proximate causation. Plaintiff offers a

counter-opinion that Plaintiff’s loss of his limbs was not the result of sepsis complications but directly and

solely linked to his constricted blood flow from the vasopressors. These issues of fact and credibility between

the parties’ experts must be resolved by a jury, and the parts of the motion seeking summary judgment in favor

of Dr. Gorga and Dr. Smith are denied.

Turning to the registered nurse defendants, a nurse employed by a hospital who “merely carries out the

orders” of the attending physician is generally not liable for that physician’s alleged medical malpractice, unless

the nurse commits independent acts of negligence (Gattling v Sisters of Charity Medical Center, 150 AD3d 701,

704 [2d Dept 2017]; see also Martinez v La Porta, 50 AD3d 976, 977 [2d Dept 2008]; Soto v Andaz, 8 AD3d

470, 471 [2d Dept 2004]).

In support of the summary judgment motion with respect to RN Privulescu and RN Joseph, the movants’

critical care expert Dr. Silberman opines, based on the ICU nursing flow sheets, that the nurses appropriately

administered and documented the titration orders based on Plaintiff’s target blood pressure. He opines that they

titrated the Levophed dosage downward at appropriate intervals as directed.

The expert opines specifically that RN Privulescu complied with the nursing standard of care in

monitoring his status and notifying ICU physicians of “any significant changes” in his condition, including by

recording his changes in temperature and checking for pulses in all extremities. He notes that she reported

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Plaintiff’s extremities were “warm to touch” and pulses present at 10:00 p.m. on July 30, and she later reported

his extremities were “cold to touch” but pulses were present at 9:00 p.m. on July 31.

Dr. Silberman opines that RN Joseph also complied with the standard of care in monitoring Plaintiff’s

condition and notifying physicians of changes in skin color. He cites specific notations in the record where RN

Joseph recorded Plaintiff’s skin redness, coldness in extremities, and pulses present, and RN Joseph also

documented that “MICU team was aware” of these changes.

To the extent that these nurses carried out the orders of the attending physicians, the movants have

established that they committed no independent negligence or departed from the standard of nursing care. The

burden therefore shifts to Plaintiff to raise triable issues of fact as to RN Privulescu and RN Joseph.

In opposition, Plaintiff’s expert Dr. Kella opines that on the evening of July 30, evening nurse RN

Privulescu improperly administered vasopressors in excess of Dr. Gorga’s order and did not titrate downward

when the patient’s target MAP was reached. He notes that the target MAP in the order was 60-70, but both

attendings testified that the target was 65, which Dr. Kella opines is the appropriate target for a patient in septic

shock. Dr. Kella opines that on 7:00 p.m. on July 30, the nursing flow sheets indicate that Plaintiff received 39.9

mcg/min of Levophed, exceeding the maximum dosage of “1 – 30 mcg/min” in the order. This dosage

continued throughout the night shift, slightly lowered to 37 mcg/min at 1:00 a.m., and lowered further at 10:00

a.m. Dr. Kella opines that RN Privulescu departed from the standard of care by “administering Levophed

beyond the max dosage and by failing to titrate it down as instructed after it was apparent that the target MAP

was reached for a sustained period of time after 8:00 p.m.”

Dr. Kella’s only mention of RN Joseph is that he did not adequately “document the patient’s chart with

any note” during his shift on August 4, but he does not elaborate on the standard of care for documentation.

Plaintiff has raised issues of fact only as to RN Privulescu, opining that she departed from the standard

of care by exceeding the maximum dosage (30 mcg/min) of Levophed and failing to timely adjust the dosage

downward per the ICU attending’s order during her July 30-31 overnight shift. This opinion is based on the

handwritten notes in the nursing flowsheet, which read “39.9” from 7:00 p.m. to 12:00 a.m. and “37” from 1:00

¹⁰

a.m. to 7:00 a.m. (Exhibit B-1, at 104). The movants submitted a reply affirmation and supplemental expert

affirmation addressing the handwritten nursing flowsheets. In the supplemental affirmation, Dr. Silberman

contends that this record was misinterpreted by Plaintiff’s expert, and that the “39.9” notation was measured in

mL/hour, not mcg/min. However, the unit of measurement is not evinced by the notes themselves. The Court

finds this raises at least an issue of fact as to acts of independent negligence on RN Privulescu’s part, and

therefore the part of the motion seeking summary judgment on behalf of RN Privulescu is denied.

Plaintiff has not raised any issue of fact as to RN Joseph’s liability. The expert’s brief mention of this

nurse is conclusory and fails to articulate a departure from the standard of care. All alleged departures from the

standard of care as to Levophed and Vasopressor administration during his shifts were as directed by the

attending physician, Dr. Smith, and Plaintiff has not raised any issues of fact that RN Joseph exercised

independent medical judgment or committed acts of negligence in his capacity as a nurse. Accordingly, the part

of the motion seeking summary judgment in favor of RN Joseph is granted. All claims against RN Joseph, as

well as vicarious liability of NYCHHC on behalf of RN Joseph, are dismissed.

It is noted that at an oral argument before the Court on March 12, 2025, Plaintiff requested to file a sur-

reply to the movant’s reply papers. The Court denied this request. “The function of reply papers is to address

arguments made in opposition to the position taken by the movant, not to introduce new arguments or new

grounds for the requested relief” (Castro v Durban, 161 AD3d 939, 941 [2d Dept 2018]). Notwithstanding the

issues of fact regarding the nursing flowsheets, as discussed above, new arguments and assertions in the

movant’s supplemental expert affirmation were improperly raised for the first time in reply and have not been

considered herein.

Accordingly, it is hereby:

ORDERED that the part of the motion (Seq. No. 1) seeking summary judgment in favor of Dr. Johnson,

Dr. Russo, Dr. Conrad, Dr. Trasybule, Dr. Morgan, Dr. Lam, Dr. Gupta is GRANTED without opposition; and

it is further

ORDERED that the part of the motion (Seq. No. 1) seeking summary judgment in favor of Dr. Gorga,

RN Privulescu, and Dr. Smith is DENIED; and it is further

ORDERED that the part of the motion (Seq. No. 1) seeking summary judgment in favor of RN Joseph

is GRANTED; and it is further

ORDERED that the part of the motion (Seq. No. 1) seeking summary judgment in favor of Kings

County Hospital/NYCHHC is GRANTED TO THE EXTENT of dismissing any vicarious liability claims on

behalf of Dr. Johnson, Dr. Russo, Dr. Conrad, Dr. Trasybule, Dr. Morgan, Dr. Lam, Dr. Gupta, or RN Joseph,

and DENIED as to vicarious liability for Dr. Gorga, Dr. Smith, and RN Privulescu; and it is further

ORDERED that the caption is amended to read:

Plaintiff,

-against-

ORDERED that the parties shall appear for a Settlement Conference on April 2, 2025 at 10:30am; and

The Clerk shall enter judgment in favor of INDLEY JOHNSON, M.D., LINDA RUSSO, M.D.,

TAYLOR CONRAD, M.D., GEORGE JOSEPH, R.N., NEL TRASYBULE, M.D., JENNAH MORGAN,

M.D., PAUL LAM, M.D., and AANCHAL GUPTA, M.D.

This constitutes the decision and order of this Court.

ENTER.

Footnotes

[1] of 12 [* 1] 1 Dr. Russo is named in the Notice of Motion and supporting papers, but according to the parties, she was not served a Summons and Complaint and has never filed an individual answer in this action. Plaintiff has withdrawn his claims against Dr. Russo and does not oppose the part of the motion seeking summary judgment on claims related to Dr. Russo as a NYCHHC physician. 2

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[11] of 12 [* 11] _______________________________ Hon. Consuelo Mallafre Melendez J.S.C. 12

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