The opinion
Odnoralov v Weiner
2024 NY Slip Op 32831(U)
August 12, 2024
Supreme Court, New York County
Docket Number: Index No. 805088/2018
Judge: Judith N. McMahon
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
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This opinion is uncorrected and not selected for official
publication.
INDEX NO. 805088/2018
NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 08/12/2024
SUPREM E COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JUDITH N. MCMAHON PART 30M
Justice
---------- ----------------------------------------------------X INDEX NO. 805088/2018
ALEXANDR A ODNORALO V, BRIAN DORFMANN ,
ALEXANDR A ODNORALO V, MOTION DATE 07/23/2024
Plaintiff, MOTION SEQ. NO.
- -001-002
--003--1
- V-
LON WEINER, RYAN SUPLEE, SYED SAYEED1, DECISION + ORDER ON
HERBERT COOPER, LENOX HILL HOSPITAL MOTION
Defendant.
- - - -- --------------- ----------- ------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 56, 57, 58, 59, 60,
61 , 62,63, 64,65,66,6 7,68,69, 70, 71, 72,117,118 ,119,120,1 21,122,123 ,124, 125,126,12 7, 128,
129, 130, 131 , 132, 133, 134, 135, 136, 139, 140
were read on this motion to/for JUDGMENT- SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 002) 73, 74, 75, 76, 77,
78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89,137,143 ,144
were read on this motion to/for JUDGMENT - SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 003) 90, 91 , 92, 93, 94,
95, 96, 97, 98 , 99, 100, 101 ,1 02, 103, 104, 105, 106,107,10 8, 109,110,11 1 , 112,113,11 4,115,138,
141 , 142
were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, the motion for swnmary judgment of the defendant
Herbert J. Cooper, M.D. (Motion Seq. No. 001) is granted, and the complaint and all cross
claims against Dr. Cooper are severed and dismissed. The motions for summary judgment of the
defendant Lenox Hill Hospital (hereinafter "LHH") (Motion Seq. No. 002) and Lon S. Weiner,
M.D. (Motion Seq. No. 003) are granted to the extent that plaintiffs ··Second" ·'Third" and
"Fourth" causes of action are severed and dismissed as unopposed, and the balance of the
A so-ordered Stipulation of Partial Discontinuance was executed in favor of plastic surgeon, Syed M.
Sayeed, M.D., on May 18, 2023 (see NYSCEF Doc. No. 55).
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motions is denied. LHH is a defendant in this case only to the extent of its vicarious liability for
the alleged negligent conduct of its employees, including vascular surgeon Ryan S. Suplee,
M.D. 2
This medical malpractice and wrongful death action arises out of defendants' alleged
failure to provide proper veinous thromboembolism care and treatment to plaintiff's decedent,
53-year-old Brian Dorfmann, during his hospitalization at LHH from April 5, 2016, until April
16,2016.
It appears undisputed that in the early morning hours of April 5, 2016, Mr. Dorfmann,
who fell in the vestibule of his apartment building, sustained a comminuted fracture of his right
tibial plateau that was so severe it caused vascular injury to the popliteal artery, resulting in
ischemia and lack of blood flow to the right leg. At I 0:30 a.m. Mr. Dorfmann underwent
emergency orthopedic surgery (external fixation) performed by Dr. Cooper to stabilize the leg,
while the attending vascular surgeon, Dr. Suplee, concurrently performed a resection of the right
popliteal artery to reconstruct the arterial blood flow. The procedure ended at 4:36 p.m. and Mr.
Dorfmann was transferred to the Surgical Intensive Care Unit ("SICU") under the service of Dr.
Suplee/vascular surgery. A deep vein thrombosis ("DVT") prophylaxis plan was devised by Dr.
Suplee and the critical care/intensivist, Dr. Bushra Minna, following the surgery.
Mr. Dorfmann remained in the SICU for approximately one week, during which he was
given 5,000 milligrams of subcutaneous heparin every eight hours. He was provided with a
sequential compression device and aspirin, as additional DVT prophylaxis. A bilateral Duplex
venous lower extremity ultrasound was performed on April 9, 2016, that revealed no DVTs
above the knees. On April 11, 2016, Mr. Dorfmann was discharged from SICU to a Stepdown
A so-ordered Stipulation of Discontinuance was executed in favor of Dr. Suplee (see NYSCEF Doc. No.
147)
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Unit. Dr. Suplee's note dated April 11, 2016, states: "[The patient] will transfer to the orthopedic
service under Dr. Weiner for a planned open reduction internal fixation, to be performed later in
the week." Dr. Mina cleared decedent for the second orthopedic procedure on April 14, 2016,
and the surgery was performed without complication on April 15, 2016. Mr. Dorfmann suffered
a fatal cardiac arrest caused by a massive saddle pulmonary embolism ("PE") upon his return
from a CT angiogram on the evening of April 16, 2016.
Defendants move for judgment dismissing the complaint on the grounds that decedent's
care and treatment was always within the applicable standard of care and was not a proximate
cause of his injuries and death. Plaintiff opposes the motions, maintaining that had decedent been
timely and properly worked up for his tachycardia and/or fevers, a prompt administration of
therapeutic anticoagulants and/or other treatments would have been available that would have
prevented the massive PE and resulting cardiac arrest and premature death.
PERTINENT CHRONOLOGY AFTER APRIL 5, 2016, SURGERY
On April 7, 2016, Dr. Suplee noted that decedent had a fever the previous afternoon as
well as one on the morning of April 71\ reaching 102. White blood cell count was normal, and
the etiology of the fever was unclear.
On April 8, 2016, decedent was observed with persistent fevers and a swollen right lower
calf. The closure of the fasciotomy of the right calf had to be cancelled and a wound vacuum was
placed instead. It was noted that Mr. Dorfmann would require skin graft in the future.
On April 9, 2016, decedent's heart rate was elevated between 94 and 112 bpm, and his
temperature fluctuated between 100.l to 103 degrees. A chest x-ray was negative for infection or
abnormalities, and a bilateral Duplex ultrasound of the lower extremities ordered by Dr. Suplee
was unremarkable for clots and the common femoral, femoral, popliteal, proximal greater
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'
saphenous and proximal deep femoral veins were patent and free of thrombus bilaterally. This
study was "limited" due to hardware in the right lower leg, but the major veins above the knee
were appropriately evaluated.
On April 10 th decedent's fever had resolved, but his right lower extremity was positive
for edema.
On April 11 th a decision was made to transfer decedent to the orthopedic stepdown
service, to Dr. Weiner for open reduction and internal fixation.
On April 13, 2016, decedent was received in the Stepdown unit and became a patient of
the orthopedic service under Dr. Weiner, after being cleared for surgery by Dr. Suplee. At the
time of Dr. Suplee's examination, Mr. Dorfmann was afebrile with stable vital signs.
On April 14th Heparin was discontinued in preparation for the second orthopedic surgery,
with the last dose being administered at 10:40 p.m.
On April 15, 2016, at 8:38 a.m., Mr. Dorfmann underwent removal of the external fixator
and open reduction and internal fixation of the right proximal tibia fracture, followed by open
wound closure performed by plastic surgeon, Dr. Sayeed. The operation ended at 11 :38 a.m. and
he was transferred from recovery to SICU under the orthopedic service at 4:00 p.m. At 5:31p.m.
decedent had a fever of 101.5, and by 8:17 p.m. his heartrate was documented at 112 bpm.
Heparin was resumed at 9:15 p.m.
On April 16th at 1:01 a.m. decedent's heartrate was 115 bpm, and he had a fever of
101.8. At 1:00 p.m. his heartrate was 116 bpm and by 1:43 p.m. it had increased to 124 bpm.
His heartrate remained elevated at 5:20 p.m. ranging between 119 and 124 bpm, and at 6:00 p.m.
decedent's temperature was recorded at between 100.1 and 100.6. Dr. Weiner testified that he
was unaware of these values as they were not communicated to him (see NYSCEF Doc. No. 103,
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pp. l 72;187-188). By 8:18 p.m. decedent's heartrate was documented at 126-127 bpm. At 8:55
p.m. a nurse requested that a physician come to assess decedent's tachycardia. Dr. Andrew Mo,
the on-call orthopedic resident, examined Mr. Dorfmann at 9:30 p.m. and implemented PE
protocols. Dr. Mo also contacted Dr. Mina, who recommended a CT angiogram and
administration of 80 mg of Lovenox, subcutaneously injected. The CTA and Lovenox were
ordered by Dr. Mo, and Lovenox was injected at 10:28 p.m. The CTA, performed at around
10:44 p.m., revealed a saddle PE3 • At approximately 10:50 p.m., while being brought back from
the CT room, Dr. Mo observed the decedent becoming more agitated and diaphoretic. Mr.
Dorfmann became unresponsive, and a code blue and rapid response was initiated. At 11 :01
p.m. Mr. Dorfmann suffered a cardiac arrest. He was declared deceased at 11 :35 p.m.
The autopsy report indicates that the cause of death was "bilateral pulmonary emboli
from deep venous thrombosis of legs due to limited mobility after right tibia fracture and
vascular injury due to blunt impact" (see NYSCEF Doc. No. 87).
MOTIONS FOR SUMMARY JUDGMENT
To prevail on a motion for summary judgment, the proponent must make prima facie
showing of entitlement to judgment as a matter of law, through admissible evidence
demonstrating the absence of any material issue of fact (see Klein v. City ofNew York, 89 NY2d
833 [1996]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]; Alvarez v. Prospect Hospital, 68 NY2d
320 [1986]).
"Since summary judgment is the equivalent of a trial, it has been a cornerstone of New
York jurisprudence that the proponent of a motion for summary judgment must demonstrate that
The results, available at approximately 11 :30 p.m., indicated a filling defect within the right main
pulmonary artery with distal extension as well as left upper and lower lobar pulmonary arteries with distal extension
compatible with central pulmonary embolism.
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there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of
law" (Ostrov v. Rozbruch, 91 AD3d 147 [l51 Dept. 2012]).
In support of his motion for summary judgment, Dr. Cooper submits the affirmations of
an orthopedic surgeon, Jeffrey H. Richmond, M.D. (see NYSCEF Doc. No. 59), and a vascular
surgeon, Larry A. Scher, M.D. (see NYSCEF Doc. No. 60). Both experts emphasize that Dr.
Cooper was not a part of the plan for DVT management4, that Dr. Cooper's involvement with the
decedent ceased after he placed the external fixator on April 5th , and notwithstanding, that there
was no need to alter the DVT prophylactic treatment from 5000 units of subQ Heparin three
times a day at any time during Mr. Dorfmann's hospital admission.
This Court finds that Dr. Cooper met his prima facie burden of entitlement to judgment
as a matter of law through the factually based and detailed affirmations of Dr. Richmond and Dr.
Scher (see Einach v. Lenox Hill Hosp., 160 AD3d 443 [151 Dept. 2018]).
"Where a defendant makes a prima facie case of entitlement to summary judgment
dismissing a medical malpractice action by submitting an affirmation from a medical expert
establishing that the treatment provided to the injured plaintiff comported with good and
accepted practice, the burden shifts to the plaintiff to present evidence in admissible form that
demonstrates the existence of a triable issue of fact" (Bartolacci-Meir v. Sassoon, 149 AD3d 567
[1 st Dept. 2017]; see also DeCintio v. Lawrence Hosp., 25 AD3d 320 [!51 Dept. 2006]; Ducasse
v. New York City Health & Hosps. Corp., 148 AD3d 434 [l st Dept. 2017]; Zuckerman v. City of
New York, 49 NY2d 557 [1980]).
4
"[T]he initial order for the 5000 units subQ Heparin three times daily was placed after Dr. Cooper' s surgery
and ordered by Wendy Ho, a critical care physician's assistant, on April 5, 2016, at 6:30 p.m., which was well after
the completion of Dr. Cooper's surgery and after the patient was already admitted to the SICU" (see Affirmation of
Larry A. Scher, M.D., NYSCEF Doc. No. 60, pa ra. 18).
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Here, plaintiff has failed to raise a triable issue of fact as to the culpability of Dr. Cooper.
Plaintiffs expert orthopedic surgeon (see NYSCEF Doc. No. 119) mentions Dr. Cooper once in
the 23-page affirmation offered in opposition (i.e., "Dr. Cooper and/or Dr. Weiner as the
attending physicians, were responsible for the overall care and treatment [of decedent] during his
admission" [id., para. 50]), and fails to identify a single departure from the standard of care
committed by Dr. Cooper. According to the hospital chart, Dr. Cooper's involvement with
decedent began and ended on April 5, 2016, with Dr. Cooper's last note being recorded after he
completed his portion of the surgery, at 1:30 p.m. on April 5th (see NYSCEF Doc. No. 61 , p. 8).
Inasmuch as Dr. Cooper was not involved with the DVT prophylactic planning and
administration, his motion for judgment dismissing the complaint is granted.
In support of Motion Seq. No. 002 for summary judgment, LHH submits the expert
affirmations of vascular surgeon, William Duffy Suggs, M.D. (see NYSCEF Doc. No. 75), and
internal medicine/pulmonary disease and critical care specialist, Steve Salzman, M.D. (see
NYSCEF Doc. No. 76). Dr. Suggs opines "to a reasonable degree of medical certainty that the
medical care providers at LHH at all times acted in accordance with accepted standards of good
medical practice in its treatment of decedent [and] decedent's alleged injuries were not due to
any departures from good and accepted medical practice by the staff of LHH" (see NYSCEF
Doc. No. 75, para. 5). Specifically, Dr. Suggs finds that: (1) decedent's thrombosis in his right
popliteal artery, found upon his presentment to LHH on April 5, 2016, did not indicate
predisposal to clotting, since it is not uncommon for healthy patients to develop an occlusion
after trauma; (2) it was within the standard of care for decedent to receive a daily aspirin and a
prophylactic (as opposed to a therapeutic) dose of 5000 units of Heparin every 8 hours; (3) Dr.
Suplee appropriately ordered a Doppler study of both lower extremities on April 9th in response
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to a fever of unknown etiology; (4) there was no need for serial Doppler studies in this case, in
light of the negative study of April 9th ; (5) the inability to visualize veins below decedent's right
knee was of no consequence, since the proximal vein trees were patent bilaterally; (6) the slight
fevers decedent developed on April 16, 2016 were attributable to his recent surgery; (7)
atelectasis is common for post-operative patients and causes fever, tachycardia, and increased
respiratory rate; (8) there was no indication for placement of an inferior vena cava ("IVC") filter
during decedent's admission, as this treatment is primarily used in patients who do not respond
to blood-thinning medications, and is "not without risks" (id., para. 37), and (9) administration of
tissue plasminogen activator ("tPA") was not available here due to the suddenness of the cardiac
arrest, and the fact that decedent was freshly post-operative.
Critical care specialist, Dr. Salzman explains that the mild tachycardia experienced
during the day of April 16th did not indicate a repeat Doppler, since pain and fever will cause
tachycardia, and neither of decedent's thighs were swollen. Once the tachycardia entered the
range of 130-150, the nursing and medical team then "appropriately considered a diagnosis of
pulmonary embolism and gave empiric full dose anticoagulation with Lovenox, and promptly
ordered and completed a CT angiogram" (id., para. 9). Dr. Salzman found no reason for hospital
staff to suspect a PE before 9:30 p.m. on April 16, 2016.
In support of his motion for summary judgment (Motion Seq. No. 003), Dr. Weiner
submits the affirmations of orthopedic surgeon, George Zambetti, M.D. (see NYSCEF Doc. No.
93), critical care/intensivist, Brian Kaufman, M.D. (see NYSCEF Doc. No. 94), and vascular
surgeon, Todd Berland, M.D. (see NYSCEF Doc. No. 95), all of whom agree that (1) Dr. Weiner
appropriately fulfilled his duty of care, given his limited role as decedent's orthopedic trauma
surgeon; (2) all DVT management was appropriately left to the critical care/intensivist with the
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vascular surgery service, and was in conformity with the standard of care applicable to Dr.
Weiner, and (3) it was entirely appropriate for Dr. Weiner to rely on and defer VTE management
to the critical care/intensivist and vascular surgery services. Dr. Kaufman adds that under the
circumstances presented to Dr. Mo at 9:30 p.m. on April 16, 2016, it was expected that Dr. Mo
would immediately contact the critical care/intensivist service and/or vascular surgery to defer all
care to them, and that Dr. Mo, "acted as a scribe" in instating orders pursuant to Dr. Mina's
directives, including the initiation of a CTA, PE protocol, Lovenox, and transfer of decedent to
ICU. Dr. Weiner's experts concur that while Dr. Mo entered the orders, it was Dr. Mina who
appropriately undertook VTE management including the diagnosis of a PE.
In opposition to the summary judgment motions made by LHH and Dr. Weiner, plaintiff
submits the expert affirmations of an orthopedic surgeon,5 a pulmonologist/critical care specialist
(see NYSCEF Doc. No. 120), and a hospitalist (see NYSCEF Doc. No. 121). These experts are
emphatic that a workup for PE should have been performed, at the latest, by 1 :43 p.m. on April
16, 2016, when decedent's heart rate was 119-120 (at this time he was afebrile, so the elevated
heart rate could not be explained as secondary to fever). Plaintiffs orthopedic surgeon opines
"within a reasonable degree of medical certainty that had the defendants timely ordered the
proper consultations and investigated the source of Mr. Dorfmann's tachycardia.. .it is very likely
that the PE protocol would have started many hours earlier, resulting in an earlier PE workup,
diagnosis and treatment, and therefore providing the best chance for survival and avoiding his
untimely death" (see NYSCEF Doc. No. 119, para. 43). The expert is unwavering that the
decedent's elevated HR was "highly suggestive of PE at least, by 1:00 p.m. on April 16, 2016, if
not earlier... considering his medical and surgical history" (id., para. 44 ), and that by not
5
NYSCEF Doc. No. 119, the expert affirmation of plaintiff's orthopedic surgeon, was previously referred to
in relation to Dr. Cooper's summary judgment motion.
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performing the CTA test until after 10:00 p.m., Mr. Dorfmann was deprived of the timely
administration of therapeutic blood thinners to prevent further blood clots from forming and
lodging into the lungs: "[c]onsequently, the delay in starting the PE protocol very likely resulted
in recurrent emboli, progressive right ventricular failure, and the untimely death of Mr.
Dorfmann (id.). Finally, plaintiffs orthopedic surgeon opines that given Mr. Dorfmann's
surgical history on his right lower extremity and his long period of immobility, Dr. Weiner, as
the attending in charge responsible for supervising orthopedic residents (including Dr. Mo and
other providers in the department under his supervision), and the LHH nursing staff, departed
from the standard of care by (1) failing to properly monitor decedent throughout the evening of
April 15 and April 16, given his persistent tachycardia; (2) failing to commence the PE protocol
at around 1:00-2:00 p.m. on April 161\ which would have allowed for a timely administration of
a therapeutic dose of Lovenox, or the tissue plasminogen activator ("tPA"; [id, para. 48]); (3)
failing to alert a physician of Mr. Dorfmann's persistent tachycardia (id., para. 53), and (4)
failing to maintain proper and accurate documentation in the medical chart (id., para. 54).
Plaintiffs critical care and hospitalist experts concur, adding that the additional blood
clots which likely formed the saddle PE, "could have been prevented had the patient been
diagnosed and treated around 1:00 p.m., 1:43 p.m., 2:47 p.m., 5:20 p.m. or even 8: 18 p.m. when
his heartrate was 127 ...even an hour very likely would have made a difference in the patient's
outcome" (see NYSCEF Doc. No. 120 para. 52), and further, that the defendants "should have
requested a consultation from hematology, in light of the patient's thrombosed infrapatellar
popliteal artery, which was indicative of a blood issue" which "more likely than not would have
identified his prothrombin factor II mutation, that further increased the risk of a pulmonary
embolism due to a genetic predisposition to form clots" (see NYSCEF Doc. No. 121, para. 42).
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The Court finds that LHH and Dr. Weiner have met their primafacie burdens of
entitlement to judgment as a matter of law by submitting the factually based and detailed
affirmations of Dr. Suggs, Dr. Salzman, Dr. Zambetti, Dr. Kaufman, and Dr. Berland. In
opposition, however, the plaintiff has successfully rebutted these movants' showing through
submission of her own expert affirmations, which raise triable questions of fact as to whether,
inter alia, the saddle pulmonary embolism was preventable if a PE protocol been established
before 9:30 p.m. on April 16, 2016. "The medical experts ' conflicting opinions ... raise issues of
fact that must be resolved at trial" (Hendricks v. Transcare New York, Inc., 158 AD3d 477 [1 st
Dept. 2018]). As such, the motions for summary judgment by Lenox Hill Hospital and Dr.
Weiner are denied.
The Court has considered the defendants' remaining contentions, including LHH's
causation argument, and finds them unavailing.
Accordingly, it is
ORDERED that the motion for summary judgment of the defendant Herbert J. Cooper,
M.D. (Motion Seq. No. 001), is granted in its entirety; and it is further
ORDERED that the motion for summary judgment of the defendant Lenox Hill Hospital
(Motion Seq. No. 002) is granted to the extent that plaintiffs "Second" "Third" and "Fourth"
causes of action are severed and dismissed, and the balance of the motion is denied; and it is
further
ORDERED that the motion for summary judgment of the defendant Lon S. Weiner, M.D.
(Motion Seq. No. 003) is granted to the extent that plaintiff's "Second" "Third" and "Fourth"
causes of action are severed and dismissed, and the balance of the motion is denied; and it is
further
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ORDERED that the Clerk is directed to enter judgment in favor of Dr. Cooper dismissing
the complaint and all cross claims as asserted against him; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of Lenox Hill Hospital
and Dr. Weiner severing and dismissing plaintiffs " Second" "Third" and "Fourth" causes of
action; and it is further
ORDERED that all parties shall appear for a pre-trial virtual conference via Microsoft
Teams on October 30, 2024, at 12:00 p.m.
8/12/2024
DATE
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
Hon. Jucfjt& N M ,,,.. L
J,S,C. ' Cu.uaoon
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