Glenn v. UPMC Chautauqua

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

J. MICHAEL GLENN, M.D.,

REPORT

Plaintiff, and

v. RECOMMENDATION

UPMC CHAUTAUQUA, and 21-CV-839-LJS-LGF

GALO GRIJALVO, M.D.,

Defendants.

______________________________________

APPEARANCES: WOODS OVIATT GILMAN LLP

Attorneys for Plaintiff

DONALD W. O’BRIEN, JR., of Counsel

1900 Bausch & Lomb Place

Rochester, New York 14604

EAGAN & HEIMER PLLC

Attorneys for Defendants

JAMES E. EAGAN, and

NEAL A. JOHNSON, of Counsel

295 Main Street

Suite 1062

Buffalo, New York 14203

JURISDICTION

This case was referred to the undersigned by Honorable John L. Sinatra, Jr. on

October 29, 2021, for all pretrial matters including preparation of a report and

recommendation on dispositive motions. (Dkt. 13). The matter is presently before the

court on Defendants’ motion for summary judgment filed May 31, 2024 (Dkt. 40).

BACKGROUND

Plaintiff J. Michael Glenn, M.D. (“Plaintiff” or “Dr. Glenn”), commenced this

medical malpractice action pursuant to New York law on July 21, 2021, against

Defendants Galo Grijalva, M.D. (“Dr. Grijalva”), and UPMC Chautauqua (“UPMC”)

(together, “Defendants”). Plaintiff asserts a single claim for medical malpractice alleging

Dr. Grijalva was negligent in the medical treatment of Plaintiff by failing to provide

Plaintiff with antibiotics for 37 hours1 following surgical removal of Plaintiff’s ruptured

appendix, resulting in a sepsis infection causing short-term, long-term, and permanent

injuries. Plaintiff also seeks to hold Dr. Grijalva’s employer, UPMC, vicariously liable

based on respondeat superior. Answers were filed on October 8, 2021 (Dkt. 8 (Dr.

Grijalva); Dkt. 9 (UPMC)), and Amended Answers were filed on October 28, 2021 (Dkt.

11 (Dr. Grijalva); Dkt. 12 (UPMC)). On October 29, 2021, a further Amended Answer

was filed by UPMC (Dkt. 14). Discovery is complete.

On May 31, 2024, Defendants filed the instant motion for summary judgment

(Dkt. 40) (“Defendants’ motion”), supported by the attached Attorney Declaration of Neal

A. Johnson, Esq. (Dkt. 40-1) (“Johnson Declaration”), with exhibits A through H (Dkts.

40-2 through 40-9) (“Defendants’ Exh(s). __”),2 the Declaration of Steven D.

Schwaitzberg, M.D., FACS (“Dr. Schwaitzberg”)3 (Dkt. 40-10) (“Dr. Schwaitzberg

Declaration”), with exhibits 1 through 3 (Dkts. 40-11 through 40-13) (“Dr. Schwaitzberg

Exh(s). __”), the Statement of Material Facts Not in Dispute Pursuant to Local Rule of

Civil Procedure 56(a) (Dkt. 40-14) (“Defendants’ Statement of Facts”), and the

Memorandum of Law in Support of Motion for Summary Judgment by Defendants

UPMC Chautauqua and Galo Grijalva, M.D. (Dkt. 40-15) (“Defendants’ Memorandum”).

1 The record contains references to Plaintiff being without antibiotics post-op for 36 hours as well as 37

hours which the court attributes to rounding.

2 Defendants’ Exhs. D and E containing Plaintiff’s medical records were separately submitted on DVDs.

3 Dr. Schwaitzberg is Defendants’ expert witness.

On June 24, 2024, Plaintiff filed the Memorandum of Law in Opposition to Defendants’

Motion for Summary Judgment (Dkt. 42) (“Plaintiff’s Response”), attaching the

Declaration of Donald W. O’Brien, Jr., Esq. (Dkt. 42-1) (“O’Brien Declaration”), with

exhibits 1 through 7 (Dkts. 42-2 through 42-6) (“Plaintiff’s Exh(s). __”),4 the Declaration

of Arnold L. Lentnek, M.D. (“Dr. Lentnek”)5 (Dkt. 42-7) (“Dr. Lentnek Declaration”), with

exhibits A and B (Dkts. 42-8 and 42-9) (“Dr. Lentnek Exh(s). __”), and the Declaration of

Michael J. [sic]6 Glenn, M.D. (Dkt. 42-10) (“Plaintiff’s Declaration”). Plaintiff also filed on

June 24, 2024, Plaintiff’s Response to Defendants’ Statement of Material Facts Not in

Dispute and Plaintiff’s Counterstatement (Dkt. 43) (“Plaintiff’s Statement of Facts”). On

July 2, 2024, Defendants filed the Reply Memorandum of Law in Further Support of

Motion for Summary Judgment by Defendants UPMC Chautauqua and Galo Grijalva,

M.D. (Dkt. 44) (“Defendants’ Reply”), attaching Objections and Response to Plaintiff’s

Response to Defendants’ Statement of Material Facts and Plaintiff’s Counterstatement

(Dkt. 44-1) (“Defendants’ Reply Statement of Facts”). Oral argument was deemed

unnecessary.

Based on the following, Defendants’ motion should be DENIED in part and

GRANTED in part.

4 Plaintiff’s Exhs. 5 and 7 contain Plaintiff’s medical records and were separately submitted on DVDs.

5 Dr. Lentnek is Plaintiff’s expert witness.

6 Unless otherwise indicated, bracketed material has been added.

FACTS7

In March 2020, Plaintiff J. Michael Glenn, M.D. (“Plaintiff” or “Dr. Glenn”), a

resident of DeFuniak Springs, Florida, was working at Defendant University of

Pittsburgh Medical Center Chautauqua (“UPMC”) in Jamestown, New York. Although

Plaintiff is a resident of Florida, Plaintiff worked at UPMC as an orthopedic hospitalist on

an independent contractor basis for a rotation from mid-April to September. Plaintiff

Defendant Galo Grijalva, M.D. (“Dr. Grijalva”), was on the staff at UPMC where he was

employed as a general surgeon, and on March 14, 2020, Dr. Grijalva performed a

laproscopic surgical removal of Plaintiff’s appendix which had ruptured.

On March 13, 2020, Dr. Glenn began to feel ill with moderate to severe

abdominal pain. On March 14, 2020, Dr. Grijalva was notified that Dr. Glenn was not

feeling well and Dr. Grijalva went to the hotel room in which Dr. Glenn was staying to

check on him before transporting Dr. Glenn to the emergency department (“ED”) at

UPMC. Dr. Grijalva, who was the on-call general surgeon when Dr. Glenn arrived at the

ED, observed Dr. Glenn “was very sick,” “[i]n severe pain, weak, dehydrated.” Dr.

Grijaval Dep. Tr. 8 at 20.

As of March 14, 2020, UPMC maintained a protocol for sepsis infections (“sepsis

protocol”).9 The sepsis protocol lists as objective symptoms of sepsis an elevated

temperature, heart rate exceeding 90 beats per minute, respiratory rate exceeding 20

breaths per minute, and white blood cell count (“WBC”) less than 4000 or greater than

7 Taken from the pleadings and motion papers filed in this action.

8 References to “Dr. Grijaval Tr.” are to the page numbers of the transcript of Dr. Grijaval’s December 20,

2022 deposition filed as Plaintiff’s Exh. 3 (Dkt. 42-4).

9 Plaintiff’s Exh. 6 (Dkt. 42-6).

12,000, or greater than 10% bands.10 Id. Subjective symptoms of sepsis include

shivering, feeling cold, extreme pain/discomfort, clammy skin, confusion/disorientation,

shortness of breath, and comments such as “I really don’t feel well,” or “He is not acting

like himself.” Id. Dr. Grijalva concedes that Plaintiff presented to the ED with at least

two symptoms of sepsis including his WBC of 21,400, bands of 48, and respiration rate,

thus satisfying UPMC’s sepsis protocol, and Dr. Grijaval attributed the sepsis to

Plaintiff’s burst appendix. Dr. Grijaval Dep. Tr. at 143-46.

Upon examination at the ED, Plaintiff underwent a CT scan of his abdomen and

a laboratory blood draw. Plaintiff’s WBC and diagnostic imaging from the CT scan of

Plaintiff’s abdomen, which included contrast bolus administered through G-tube,

showed findings consistent with perforated appendicitis including dilated (enlarged and

swollen) appendix, tiny foci of infection luminal air (air outside the appendix lumen

(blockage) and near the appendix indicative of perforated appendix), fluid in the right

lower quadrant, reactive edema (swelling and inflammation) of the terminal ilieum and

cecum (intestinal regions), and appendicoliths (calcific masses in the appendix).

Defendants’ Exh. E at 58-59; Plaintiff’s Exh. 5 at 40-43, 160-61. Based on his reading

of the CT scan and CT scan report, Dr. Grijaval diagnosed perforated appendix, id. at

38-39, and admitted Plaintiff to the hospital based on “acute ruptured appendicitis.”11

Id. at 41, 42, 146.

10 “The presence of immature neutrophils (bands) in the circulating blood is often used as a clinical

indicator of sepsis.” See Is the Band Count Useful in the Diagnosis of Infection? An Accuracy Study in

Critically Ill Patients, available at: https://pubmed.ncbi.nlm.nih.gov/20837634/, last visited Mar. 26, 2025.

11 On June 25, 2019, prior to his appendicitis, Plaintiff, based on the results of a biopsy, was diagnosed

with head and neck cancer, specifically, squamous carcinoma, oropharyngeal cancer. Dkt. 40-11 at 2-3.

To treat his cancer, Plaintiff underwent chemotherapy and radiation therapy in the palate of his mouth, id.

at 3, which caused Plaintiff to have difficulty swallowing, and in September 2019, Plaintiff had a

percutaneous endoscopic gastrostomy (“PEG tube” or “g-tube”) surgically implanted for nutritional

support. Id. at 3; Dkt. 40-8 at 56-57; Plaintiff’s Exh. 5 at 36. The g-tube was also observed on the

At the time of his surgery, Plaintiff had a history of decreased renal function

described as “mild renal insufficiency,” and relevant laboratory findings included a

glomerular filtration rate (“GFR”) (measures how well the kidneys are filtering blood) of

57 (normal range 90-120), and borderline creatinine (waste product of muscle

metabolism filtered by the kidneys) level of 1.2 (normal range .6 to 1.2). Plaintiff’s Exh.

5 at 14, 36. Dr. Grijaval concedes that Plaintiff, based on his WBC of 17,100 and heart

rate or beats per minute (“BPM”) of 128, was septic when he was admitted. Dr. Grijaval

Dep. Tr. at 147 (referencing Plaintiff’s Exh. 5 at 40-41).12 See also Defendants’ Exh. E

at 183 (progress notes addendum signed by Dr. Grijalva with box checked indicating

sepsis was present when Plaintiff was admitted based on “tachycardia and known

infection based on CT and obvious operative findings”). Dr. Grijaval was assigned to

operate on Plaintiff and prior to surgery, Plaintiff was given Dilaudid for pain and was

given a single dose of the antibiotic Zosyn. Id. at 53-54, 57; Plaintiff’s Exh. 5 at 37.

Certified Registered Nurse Practitioner (“CRNP”) Ashely Balling (“CRNP Balling”)

ordered the medications. Dr. Grijaval Dep. Tr. at 57.

An addendum to Dr. Grijalva’s March 14, 2020 appendectomy operative note

regarding Plaintiff’s surgery provides

To whoever reads and bills these it should be a quality 22 modifier. This was a

very complicated advanced perforated appendix with peritonitis and pus

throughout the abdomen. After initial trocar placement at the umbilicus I could

diagnostic imaging. Plaintiff received further cancer treatment as recently as the month before his

appendicitis. Dkt. 40-8 at 56-57; Plaintiff’s Exh. 5 at 36.

12 Throughout much of his hospitalization at UPMC, Plaintiff’s WBC was elevated above the upper level of

normal, i.e., 11,000. Specifically, upon admission to UPMC on March 14, 2020, Plaintiff’s WBC were

17,000, and increased over the next five days to 21,400 (March 15, 2020), 41,500 (March 16, 2020),

42,800 (March 17, 2020), 57,800 (March 18, 2020), 58,300 (March 19, 2020), before falling to 43,400

(March 20, 2020), 19,500 (March 21, 2020), 14,400 (March 22, 2020), and finally into normal range on

March 23, 2020 (9,600). Plaintiff’s Exh. D at 557, 561-69.

immediately see that the entire right side was walled off with visible purulent

discharge and large amount of infectious adhesions throughout. I put in the left

sided lower quadrant trocar under direct vision and after trying to mobilize the

right lower quadrant found a pocket of combination of pus and stool that came

from an obviously perforated appendix. The right upper quadrant trocar was then

placed and with these 2 now begin to be able to mobilize some of the small

bowel to move it out of the way. I was able to catch some of this purulent effluent

to send for culture. After the appendix was fully identified and could see that

near its base it was completely perforated and what appeared to be left at the

base was basically stringy necrotic tissue and the Mesalt appendix. I was able to

dissect at the base of the appendix . . . . [and] at least 2-1/2-3 L of irrigation were

then used to clean up the peritoneal cavity. . . . Continued irrigation was carried

out throughout the right upper quadrant left upper quadrant and the pelvis

suctioning out as much purulent discharge is possible and irrigating every area.

A 10 French fully perforated JP drain was then placed inside and pulled out

through the right uppermost trocar. . . . Once again please note this is a quality

22 modifier13 due to the difficulty and advanced age perforated appendicitis with

peritonitis and purulence throughout the peritoneal cavity.

Defendants’ Exh. E at 121.

On March 15, 2020, following the surgery, Plaintiff felt better but was unaware

what medications he was receiving and did not know whether he was receiving any

antibiotics. Plaintiff’s Dep. Tr.14 at 109-10. In progress notes dated March 15, 2020, Dr.

Grijalva reported Plaintiff’s diagnosis as “peritonitis due to abscess,” further described

as “primarily perforated appendicitis with peritonitis [inflammation of membrane lining of

abdominal wall usually infectious] and purulent discharge and abscess,” although at that

time all of Plaintiff’s vital signs were within normal limits (“WNL”), and Plaintiff was

considered to have “clinically” improved. Plaintiff’s Exh. 5 at 43. The treatment plan

provided that hyponatremia (low sodium) had improved although it was necessary to

13 A quality 22 modifier refers to a medical billing code listed in the American Medical Association’s

Current Procedural Technology code reflecting that a surgical procedure required additional work due to

the particular case’s difficulty or complexity which cannot be accommodated by another code. See

Modifier 22 Use in Fee-for-Service Medicare, available at http://jamanetwork.com/jurnals/jamasurgery/

fullarticle/2816728, last visited March 26, 2025.

14 References to “Plaintiff’s Dep. Tr.” are to the pages of the transcript of Plaintiff’s December 19, 2022

deposition filed as Plaintiff’s Exh. 1 (Dkt. 42-1).

reduce Plaintiff’s IV fluid and Plaintiff’s renal function was “back to normal.” Id. at 44.

Dr. Grijalva further reported, “We’ll need to continue IV Zosyn for now due to the

extreme amount of peritonitis, exploded perforated appendix.” Id. Plaintiff’s scheduled

medications, however, did not then include Zosyn or any other antibiotic; rather, Zosyn

is listed as a “one-time medication” with a single dose given intravenously on March 14

at 2:38 P.M. Id.

Plaintiff, who remained hospitalized, does not have much memory of March 16,

2020 and several days following. Plaintiff’s Dep. Tr. at 113-14. According to Plaintiff, it

was a nurse who was assigned to Plaintiff’s care, one Annie Gribble (“Gribble”) who

discovered on March 16, 2020, that Plaintiff was not receiving any antibiotics post-

operatively. Id. at 116-17. It was not until Gribble called Dr. Grijaval that Dr. Grijaval

ordered Plaintiff be given Zosyn which was restarted some 36 or 37 hours after the

surgery. Id. at 119-20. When Plaintiff’s sepsis did not immediately respond to the

Zosyn, other antibiotics in addition to the Zosyn were prescribed, including ciproflaxin

and tobramycin, the latter two which had to be discontinued because of potential

nephrotoxicity (damaging to kidneys) and Plaintiff’s laboratory results were indicative of

decreasing renal function. Plaintiff’s Dep. Tr. at 125-26; Plaintiff’s Exh. 5 at 47.

Although Plaintiff experienced occipital headaches attributed to the radiation

treatment of his cancer, the headaches previously occurred only at the back of his head

but after his appendectomy, Plaintiff’s headaches were much worse and involved his

entire head, Plaintiff’s Dep. Tr. at 120-22, and Plaintiff noticed he was having memory

problems. Id. at 38-39. Plaintiff maintains that by March 16, 2020, he had an altered

mental state which, combined with his elevated WBC, Plaintiff attributes to his sepsis

infection. Id. at 126-28. Other symptoms Plaintiff experienced while hospitalized at

UPMC include electrical shock sensations shooting down his legs. Id. at 132-33.

On March 17, 2020, Plaintiff underwent a renal consult with Kiran Kandakurti,

M.D. (“Dr. Kandakurti”), who noted Plaintiff’s history of, inter alia, hypertension, and

borderline chronic kidney disease, and that Plaintiff, post-appendectomy, went without

IV antibiotics for 36 hours. Plaintiff’s Exh. 5 at 108-10. Dr. Kandakurti assessed

Plaintiff’s condition as “worsening” and diagnosed acute kidney injury (“AKI”)

multifactorial (caused by multiple factors) including sepsis-acute tubular necrosis

(“ATN”) (acute kidney injury caused by exposure to sepsis), compounded by use of two

doses of ibuprofen, and possibly by the bolus (injected) contrast dye used in the CT

scan when Plaintiff presented to the emergency department on March 14, 2020. Id. at

110.

In his March 18, 2020 progress notes, Dr. Grijalva refers to having consultations

with a hematologist, Dr. Ebarb, and an infectious disease specialist, Dr. Brown,

regarding Plaintiff’s sepsis’s continued failure to respond to antibiotics. Plaintiff’s Exh. 5

at 51, 74. Despite some comments by the consultative physicians that Plaintiff’s

elevated WBC could be attributed to a “leukemoid reaction,”15 see, e.g., Plaintiff’s Exh.

5 at 74, Plaintiff’s working diagnosis continued to include gram negative sepsis.16 Id. at

73.

15 A “leukemoid reaction” is an increase in WBC that mimics leukemia and is a response to stress or an

infection. See National Library of Medicine, Medline Plus, Leukemoid reaction, available at

https://medlineplus.gov/ency/article/000575.htm, last visited March 26, 2025.

16 “Gram-negative” and “gram-positive” refer to whether the associated bacteria produces a negative or

positive result in the “Gram stain test.” Gram-negative bacteria are generally more difficult to treat that

gram-positive because of the structure of the outer cell membrane which makes gram-negative bacteria

more resistant to antibiotics – the thicker peptidoglycan cell walls of gram-positive bacteria more easily

absorbs antibiotics and other antimicrobial agents rendering them easier to kill. See National Library of

According to Dr. Grijlva’s progress notes for March 19, 2020, Plaintiff’s WBC

remained elevated, and recent cultures from the fluid aspirated during surgery grew, in

addition to Pseudomonas, two additional bacteria including Klebsiella, and Escherichia

coli. Plaintiff’s Exh. 5 at 51. Dr. Grijalva further noted that Plaintiff would remain on

Zosyn, and that an additional antibiotic, clindamycin, was started on March 18, 2020,

but then discontinued when an infectious disease physician did not believe clindamycin

provided any additional benefit. Id. Plaintiff’s antibiotics then included Zosyn and

Tobramycin, and Dr. Grijalva remarked that he appreciated the assistance “of all the

consultants as this is a difficult case.” Id.

Plaintiff’s March 25, 2020 discharge statement states that upon presenting to the

emergency department on March 14, 2020, Plaintiff had “severe increasing intractable

abdominal pain” “an acute abdomen” and an elevated WBC. Plaintiff’s Exh. 5 at 26.

During surgical appendectomy, Dr. Grijvalva “found a completely perforated appendix

with a large amount of stool spillage and positive peritonitis throughout the abdominal

cavity.” Id. Although Plaintiff initially “felt much better the following day,” he “then

began to decompensate.” Id. Dr. Grijalva explained that “[i]t seems that somehow the

Zosyn fell off and was not restarted until late on Sunday.”17

Medicine, Medline Plus, Gram Stain, available at https://medlineplus.gov/lab-test/gram-stain/, last visited

March 26, 2025.

17 The court notes the Sunday following Plaintiff’s surgery was March 15, 2020, see Flannery v. Cnty. of

Niagara, 2025 WL 659389, at *33 (W.D.N.Y. Jan. 31, 2025) (“The court may take judicial notice of facts

established by a calendar, as the accuracy of a calendar cannot be reasonably questioned.” (citing

Edwards v. Berryhill, 2019 WL 2340953, at *4 n.10 (W.D.N.Y. June 3, 2019) (taking judicial notice of fact

established by calendar), and Nassry v. St. Luke's Roosevelt Hosp., 2016 WL 1274576, at *13 n.8

(S.D.N.Y. Mar. 31, 2016) (same))), while Plaintiff’s medical records establish Zosyn was not restarted until

early in the morning of Monday, March 16, 2020. Plaintiff’s Exh. 5 at 44, 46.

After being discharged from UPMC on March 25, 2020, Plaintiff did not

immediately return to Florida because he was too weak; instead, Plaintiff and his wife

stayed in a rented home close to UPMC for several weeks until Plaintiff regained his

strength. Plaintiff’s Dep. Tr. at 117; Dr. Grijalva’s Dep. Tr.18 at 135. Upon returning to

Florida, Plaintiff sought treatment for his continuing memory problems with a

neurologist, Dr. Aubert, at White-Wilson Medical Center in Fort Walton Beach, Florida.

Plaintiff’s Dep. Tr. at 38-39. Dr. Aubert obtained An EEG and MRI of Plaintiff’s brain,

both of which were normal, and Dr. Aubert prescribed Adderall. Dkt. 40-11 at 4.

Plaintiff never saw his medical records from his stay at UPMC for his appendectomy

until the night before Plaintiff’s deposition on December 19, 2022. Plaintiff’s Dep. Tr. at

101-02.

In connection with this action, Plaintiff retained as his expert witness board

certified internal medicine and infectious disease specialist Arnold L. Lentnek, M.D. (“Dr.

Lentnek”), who reviewed, inter alia, Plaintiff’s medical records and deposition

transcripts, rendering an opinion on July 19, 2023. Defendants’ Exh. F (Dkt. 40-7) (“Dr.

Lentnek’s opinion”). According to Dr. Lentnek, when Plaintiff presented with acute

appendicitis on March 14, 2020, Plaintiff was “significantly immunocompromised” by his

“underlying squamous cell carcinoma of his tonsil” and the ensuing “chemo- and

radiation therapy . . . .” Dr. Lentnek’s Opinion at 10. Dr. Lentnek continued that

Plaintiff’s “intra-abdominal [sepsis] infection was already well-established” when Plaintiff

arrived at UPMC’s emergency department on March 14, 2020, and that Zosyn or a

similar antibiotic should have been regularly administered until the infection

18 References to “Dr. Grijalva’s Dep. Tr.” are to the pages of the transcript of Dr. Grijalva’s December 20,

2022 deposition, filed as Plaintiff’s Exh. 3 (Dkt. 42-2).

“demonstrated a clear trend towards resolution,” usually 5 – 7 days in an otherwise

healthy individual, but longer in an immunocompromised person like Plaintiff.” Id. at 9-

10. The failure to administer the Zosyn as required was a deviation from accepted

standards of medical care that allowed Plaintiff’s sepsis infection “to flourish” until its

effects were life-threatening and “was a substantial factor in causing [Plaintiff’s] post-

operative difficulties, both in the short term and over the long-term.” Id. at 10-11.

Defendants retained as their expert witness Steven D. Schwaitzberg, M.D. (“Dr.

Schwaitzberg”), who reviewed, inter alia, Plaintiff’s medical records, deposition

transcripts, and Dr. Lentnek’s Opinion, based upon which Dr. Schwaitzberg rendered an

opinion on September 6, 2023. Defendants’ Exh. I (Dkt. 40-11) (“Dr. Schwaitzberg’s

Opinion”). According to Dr. Schwaitzberg’s Opinion, “[t]he pathology diagnosed acute

appendicitis with transmural inflammation, suppurative periappendicitis [inflammation of

tissue surrounding appendix] and no evidence of perforation.” Dr. Schwaitzberg’s

Opinion at 3. According to Dr. Schwaitzberg, Plaintiff did not meet the criteria for sepsis

following the appendectomy because except for his elevated WBC, Plaintiff’s

temperature, heart rate, blood pressure, and respiration rate were all normal. Id. at 4.

Dr. Schwaitzberg remarked that consultations with an infectious disease specialist and

hematologist at UPMC concurred that Plaintiff’s “significantly elevated” WBC was a

leukemoid reaction rather than indicative of an abdominal infection. Id. at 3-4. Dr.

Schwaitzberg explains the use of antibiotics following abdominal surgery has been

trending toward shorter durations especially where, as in the instant case, the source of

sepsis has been removed and the surgeon also performs an abdominal washout and

drain placement. Id. at 5. Dr. Schwaitzberg stated that “[s]ince Dr. Glenn never actually

had an intra-abdominal infection, there is no prevailing evidence that antibiotics would

have made a difference to his course on day 2.” Id. Dr. Schwaitzberg explains that

because an elevated WBC attributed to an infection typically ranges between 15,000

and 25,000, Plaintiff’s much higher WBC is more indicative of “a sustained inflammatory

insult over the three or four days prior to being brought to the hospital by his surgeon

and the process of surgery itself.” Id. Dr. Schwaitzberg opined that when Plaintiff

arrived at UPMC on March 14, 2020, he was “gravely ill” and “was clearly experiencing

sepsis at the time of presentation with a clear infective source.” Id. at 6. Dr.

Schwaitzberg continued that the first step for treating sepsis was the surgical removal of

the source of infection by the appendectomy, and that “all other measures are

adjunctive and have minimal impact on subsequent events.” Id. Dr. Schwaitzberg

maintains that Plaintiff’s leukemoid reaction would have occurred regardless of whether

Plaintiff was on antibiotics immediately post-op, id., and that there is no evidence that

Plaintiff “suffered any long-term sequelae from this episode,” and instead attributes

Plaintiff’s complaints of long-term headaches, memory deficits, electric shock

sensations, and hallucinations to Plaintiff’s general health resulting from Plaintiff’s

cancer and treatment. Id. at 7.

After reviewing Dr. Schwaitzberg’s Opinion, Dr. Lentnek rendered a rebuttal

report, Dkt. 42-7 (“Dr. Lentnek’s Rebuttal”), asserting Dr. Schwaitzberg’s Opinion

“sidesteps” that Plaintiff’s medical records establish Plaintiff presented to UPMC’s

emergency department on March 14, 2020 with sepsis, as well as during his post-

operative hospitalization. Dr. Lentnek’s Rebuttal at 2. Dr. Lentnek also references Dr.

Grijalva’s deposition testimony that upon presenting to UPMC’s emergency department

on March 14, 2020, Plaintiff’s symptoms met UPMC’s “criteria for implementing the

sepsis protocols.” Id. (referencing Dr. Grijalva’s Dep. Tr. at 145).

DISCUSSION

Plaintiff asserts a single claim under New York law for medical malpractice

against Dr. Grijalva and vicariously against UPMC alleging Dr. Grijalva deviated from

acceptable standard of medical care by failing to administer antibiotics immediately

following Plaintiff’s appendectomy, failing to implement sepsis screening procedures,

failing to detect that antibiotics had not been timely administered to Plaintiff post-

surgery, discontinuing IV fluids causing dehydration and posing further risk to Plaintiff’s

renal functioning, and prescribing nephrotoxic antibiotics to a patient already at risk of

renal failure. Complaint ¶¶ 37-44. Defendants’ motion seeking summary judgment

contends that Dr. Lentnek’s Opinion is not sufficiently reliable to be admissible under

Federal Rules of Evidence 702 and relevant caselaw, and absent admissible expert

evidence, Plaintiff is unable to establish a prima facie claim for medical malpractice.

Defendants’ Memorandum at 2.

1. Summary Judgment

Summary judgment of a claim or defense will be granted when a moving party

demonstrates that there are no genuine issues as to any material fact and that a moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250-51 (1986); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.

2003). The court is required to construe the evidence in the light most favorable to the

non-moving party. Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party

moving for summary judgment bears the burden of establishing the nonexistence of any

genuine issue of material fact and if there is any evidence in the record based upon any

source from which a reasonable inference in the non-moving party's favor may be

drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322;

see Anderson, 477 U.S. at 247-48 (“summary judgment will not lie if the dispute about a

material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party”). “A fact is material if it ‘might affect the

outcome of the suit under governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35

(2d Cir. 2008) (quoting Anderson, 477 U.S. at 248).

“[T]he evidentiary burdens that the respective parties will bear at trial guide

district courts in their determination of summary judgment motions.” Brady v. Town of

Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary

judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit

a reasonable juror to return a verdict in his or her favor on’” an essential element of a

claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec.

Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379

(2d Cir. 1992)). Once a party moving for summary judgment has made a properly

supported showing of the absence of any genuine issue as to all material facts, the

nonmoving party must, to defeat summary judgment, come forward with evidence that

would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes

Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “[F]actual issues created

solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’

issues for trial.” Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.

1996).

When considering motions for summary judgment, “courts must refrain from

assessing competing evidence in the summary judgment record and avoid making

credibility judgments.” Saeli v. Chautauqua Cnty., NY, 36 F.4th 445, 456 (2d Cir. 2022)

(citing Green v. Town of East Haven, 952 F.3d 394, 406 (2d Cir. 2020)). Nevertheless,

“to defeat summary judgment, ‘there must be evidence on which the jury could

reasonably find for the [non-moving party].’” Saeli, 36 F.4th at 456 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (italics in Saeli). Further, the court is “not

required to assume the truth of testimony ‘so replete with inconsistencies and

improbabilities that a reasonable jury could not [base a favorable finding on it].’”

Saeli, 36 F.4th at 457 (quoting Jeffreys v. City of New York, 426 F.3d 549, 553–55 (2d

Cir. 2005)).

Defendants move for summary judgment arguing that without admissible expert

testimony, Plaintiff cannot establish a prima facie case of medical malpractice and Dr.

Lentnek’s opinion is not admissible because it is inconsistent with Dr. Lentnek’s

deposition testimony regarding the criteria for diagnosing sepsis and thus is not

sufficiently reliable. Defendant’s Memorandum at 15-18. Alternatively, Defendants

argue summary judgment should be granted insofar as Plaintiff asserts he suffered

long-term injury for which Plaintiff has no evidence, id. at 18-19, and Plaintiff offers no

evidence supporting vicarious liability against UPMC based on the actions of other

UPMC employees. Id. at 19. In opposition, Plaintiff argues Defendants have not met

their initial burden for summary judgment insofar as Defendants rely on Dr.

Schwaitzberg’s opinion which is undermined by his deposition testimony, Plaintiff’s

Response at 3-5, triable issues of material fact preclude summary judgment, including

whether the care rendered by Defendants deviated from the accepted standard of care,

id. at 5-7, as well as whether Defendants’ negligence was a substantial factor in causing

Plaintiff’s injuries. Id. at 7-9. In further support of summary judgment, Defendants

argue they met their burden on summary judgment by pointing to a lack of admissible

evidence supporting Plaintiff’s claim, Defendants’ Reply at 3-5, especially because Dr.

Lentnek’s opinion is inadmissible, id., at 5-8, nor does Plaintiff have any expert opinion

evidence regarding Plaintiff’s claimed long-term injury. Id. at 8-10.

2. Medical Malpractice

“Under New York law, the ‘essential elements of medical malpractice are (1) a

deviation or departure from accepted medical practice, and (2) evidence that such

departure was a proximate cause of injury.’” Ongley v. St. Lukes Roosevelt Hosp. Ctr.,

725 Fed.Appx. 44, 46 (2d Cir. 2018) (quoting DiMitri v. Monsouri, 754 N.Y.S.2d 674,

675 (2d Dep't 2003)). “A medical malpractice defendant is prima facie entitled to

summary judgment if it demonstrates that it ‘did not depart from good and accepted

medical practice or that any departure did not proximately cause plaintiff's injuries.’” Id.

(quoting Ducasse v. N.Y.C. Health & Hosps. Corp., 49 N.Y.S.3d 109, 111 (1st Dep't

2017)). “To survive summary judgment, a plaintiff ‘must submit evidentiary facts or

materials’ to ‘demonstrate the existence of a triable issue of fact.’” Id. (quoting Alvarez

v. Prospect Hosp., 501 N.E.2d 572, 574 (N.Y. 1986). Further, “‘unless the alleged act of

malpractice falls within the competence of a lay jury to evaluate, it is incumbent upon

the plaintiff to present expert testimony in support of the allegations to establish a prima

facie case of malpractice.’” Sitts v. United States, 811 F.2d 736, 739 (2d Cir. 1987)

(quoting Keane v. Sloan-Kettering Institute for Cancer Research, 464 N.Y.S.2d 548, 549

(2d Dep’t 1983)).

3. Expert Evidence

The admissibility of expert testimony is evaluated under Federal Rule of

Evidence 702 (“Rule 702”), and that rule requires the district court to make several

determinations prior to allowing expert testimony: whether (1) the witness is qualified to

be an expert; (2) the proffered opinion is based upon reliable data and methodology;

and (3) the expert's testimony on a particular issue will assist the trier of fact. See

Nimely v. City of New York, 414 F.3d 181, 396-397 (2d Cir. 2005). Rule 702 provides

that “an expert witness, unlike a lay witness, is ‘permitted wide latitude to offer opinions,

including those that are not based on firsthand knowledge or observation.’” Major

League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008)

(quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993) (“Daubert”). It

is the responsibility of the trial judge to “ensur[e] that an expert's testimony both rests on

a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597.

“Under Daubert, ‘the district court functions as the gatekeeper for expert

testimony,’ whether proffered at trial or in connection with a motion for summary

judgment.” Major League Baseball Properties, Inc., 542 F.2d at 311 (quoting Raskin v.

Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997), and citing Boucher v. U.S. Suzuki Motor

Corp., 73 F.3d 18, 22 (2d Cir.1996)). In applying the “liberal admissibility standards” of

Rule 702, Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 267 (2d Cir.

2002), the determination of whether proposed expert testimony is sufficiently reliable

and relevant is committed to the “‘sound discretion of the trial court.’” Lee Valley Tools,

Ltd. v. Industrial Blade Co., 288 F.R.D. 254, 265 (W.D.N.Y. 2013) (quoting American

Ref-Fuel Co. of Niagara, LP v. Gensimore Trucking, Inc., 2008 WL 1995120, at *3

(W.D.N.Y. 2008) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158 (1999))).

Further, the inquiry of whether the expert's opinion includes sufficient indicia of reliability

to carry out the “‘gatekeeping’ function” required by Daubert, 509 U.S. at 597, “is fluid

and will necessarily vary from case to case,” Amorgianos, 303 F.3d at 266 (quoting

Daubert, 509 U.S. at 597), but such opinions “‘must be tied to the facts of a particular

case.’” Id. (quoting Kumho, 526 U.S. at 150). The purpose of the court's evaluation is to

exclude expert opinion “that is connected to existing data only by the ipse dixit of the

expert,” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), and thereby exclude “junk

science, while admitting reliable expert testimony that will assist the trier of fact.”

Amorgianos, 303 F.3d at 267. Provided the basis for the expert testimony at issue is

“‘supported by good grounds,’” id. (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d

717, 745-46 (3rd Cir. 1994)), “‘shaky but admissible evidence’” should be subject to

attack by “‘[v]igorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof.’” Amorgianos, 303 F.3d at 267 (quoting Daubert, 509

U.S. at 596).

Daubert‘’s “‘requirement that the expert testify to scientific knowledge—

conclusions supported by good grounds for each step in the analysis—means that any

step that renders the analysis unreliable under the Daubert factors renders the expert's

testimony inadmissible.’” Amorgianos, 303 F.3d at 267 (quoting In re Paoli R.R. Yard

PCB Litig., 35 F.3d 717, 745 (3d Cir.1994) (itlics in In re Paoli R.R. Yard PCB Litig.),

and citing Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“[T]he

reliability analysis applies to all aspects of an expert's testimony: the methodology, the

facts underlying the expert's opinion, the link between the facts and the conclusion, et

alia.”). These standards apply to the question in a medical malpractice action regarding

whether a plaintiff's injuries were specifically caused by a defendant's negligence.

Amorgianos, 303 F.3d at 268. Furthermore, where, are here, the issue presented, i.e.,

whether the inadvertent discontinuation of Zosyn for 37 hours after Plaintiff’s

appendectomy was a deviation from standard medical care that contributed to an

exacerbation of Plaintiff’s sepsis infection with both short- and long-term detrimental

health consequences, presents such an ordinary case that does not require a detailed

elaboration of the scientific methodology underlying the issue, the physician may rely on

his or her education and experience. See Franz v. New England Disposal

Technologies, Inc., 2016 WL 3344187, at * 4 (W.D.N.Y. June 16, 2016) (rejecting the

defendant’s challenge under Daubert to the reliability of the plaintiff’s expert witness, an

orthopedic surgeon, who rendered an opinion regarding the injuries to the plaintiff’s

musculoskeletal system that were based on readily apparent trauma (citing Kumho Tire

Co. v. Carmichael, 526 U.S. 137, 152 (1999) (court has discretion to avoid

“unnecessary ‘reliability’ proceedings in ordinary cases where the reliability of an

expert's methods is properly taken for granted”)).

Although expert testimony “should be excluded where it is ‘speculative or

conjectural,’ . . . arguments that the expert's assumptions ‘are unfounded go to the

weight, not the admissibility, of the testimony.’” Robinson v. Suffolk County Police

Dep't., 544 Fed.Appx. 29, 32 (2d Cir. Nov. 14, 2013) (quoting Boucher v. U.S. Suzuki

Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)) (internal citations and quotation marks

omitted). Additionally, expert testimony is “not per se unreliable simply because it relies

upon some unverified or inaccurate information provided by the expert's client.” Lee

Valley Tools, Ltd. v. 288 F.R.D. at 267 (citing cases). An expert's opinions that are

without factual basis and are based on speculation or conjecture are inappropriate

material for consideration on a motion for summary judgment. Raskin v. Wyatt Co., 125

F.3d 55, 66 (2d Cir. 1997) (“[A]n expert's report is not a talisman against summary

judgment.”)). An expert's conclusory opinions are similarly inappropriate. Bridgeway

Corp. v. Citibank, 201 F.3d 134, 142 (2d Cir.2000) (where the issue was the fairness of

Liberian proceedings leading to a judgment, an expert's statement that “‘Liberia's

judicial system was and is structured and administered to afford party-litigants therein

impartial justice’” was “purely conclusory” and hence insufficient to defeat summary

judgment)).

4. Analysis

The court first addresses whether Dr. Lentnek’s Opinion is sufficiently reliable to

be considered in analyzing Plaintiff’s medical malpractice claim. Toward that end,

Defendants do not dispute that Dr. Lentnek, a board certified internal medicine and

infectious disease specialist, is qualified to provide opinions regarding the nature and

extent of Plaintiff's injuries, see Defendants’ Memorandum at 14 (assuming Dr.

Lentnek’s Opinion should not be excluded for lack of proper qualifications); rather,

Defendants challenge Dr. Lentnek’s Opinion as based on inadequate data and

methodology insofar as Dr. Lentnek’s Opinion does not apply his own diagnostic criteria

for sepsis to the facts of this case. Id. at 15. According to Defendants, Dr. Lentnek

does not “seem to be aware of when the patient [Plaintiff] may have experienced these

diagnostic criteria or recognize that the patient did not consistently experience more

than one of those diagnostic criteria at any given time,” in contrast to Dr. Lentnek’s

testimony that a patient “must have two or three of those diagnostic criteria in order to

be diagnosed with sepsis,” id., and that not only does Dr. Lentnek recognize that

Plaintiff never experienced three of the diagnostic criteria for sepsis, including fever

tachycardia, and low blood pressure, but for all but two days of Plaintiff’s hospitalization

at UPMC, Plaintiff only exhibited one of the criteria for sepsis, i.e., an elevated WBC.

Id. at 15-16. Defendants thus maintain that even if Plaintiff met the criteria on two days,

including March 17, 2020 when Plaintiff had decreased kidney functioning, and March

21, 2020, when a nurse observed Plaintiff was confused in the morning, it cannot be

gainsaid that Plaintiff did not experience a prolonged period of sepsis on the other days

of his hospitalization when Plaintiff did not meet additional criteria. Id. at 17.

Defendants argue these asserted deficiencies and inconsistencies establish Dr.

Lentnek’s Opinion is unreliable leaving Plaintiff without the requisite expert opinion to

establish a prima facie case of medical malpractice. Id. at 15-17. In opposition, Plaintiff

argues that there are genuine issues of fact regarding whether Defendants’ failure to

continue Plaintiff on antibiotics immediately following his appendectomy caused

Plaintiff’s sepsis “to flourish,” leading to long-term consequences. Plaintiff’s Response

at 5-7. In further support of summary judgment, Defendants repeat their argument that

Dr. Lentnek’s Opinion and testimony are not sufficiently reliable to be admissible so as

to establish a prima facie case of medical malpractice and requiring summary judgment

in favor of Defendants. Defendants’ Reply at 5-8. Defendants’ arguments are without

merit.

First, a careful reading of Dr. Lentnek’s deposition testimony does not, as

Defendants argue, fail to apply his own diagnostic criteria for sepsis to the facts of this

case. In particular, at his deposition Dr. Lentnek described the criteria for clinical sepsis

to include

the appearance of a person who appears clinically ill whose temperature is either

higher or lower than normal, who is often but not always tachycardic, who is

having some alteration of mental status, some alteration of normal blood

pressure and/or pulse and who may or may not have a focal source of discomfort

or pain.

Dr. Lentnek’s Dep. Tr. at 12.

In response to Defendants’ question regarding how many of these criteria were required

to be considered sepsis according to Dr. Lentnek’s criteria, Dr. Lentnek responded,

“There is no formal definition. Every clinician who deals with sepsis has his or her own

personal but usually at least two or three of those.” Id. (italics added). Dr. Lentnek thus

described sepsis as “usually” requiring two symptoms for diagnosis, but clinically there

is no formal definition just that clinicians usually require two or three symptoms to make

the diagnosis, Dr. Lentnek’s Dep. Tr. at 13-14, and thus is equivocal as to how many of

the identified criteria Plaintiff needed to exhibit at any one time to be considered as

having sepsis. United States v. Christopher, 2024 WL 5135382, at *3 (2d Cir. Dec. 17,

2024) (that the government’s expert witness “did not testify with unequivocal certainty

that particular words always have particular meanings goes ‘to the weight, not the

admissibility’ of his testimony.” (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d

18, 21 (2d Cir. 1996)). See also United States Sec. & Exch. Comm'n v. Vali Mgmt.

Partners, 2022 WL 2155094, at *2 (2d Cir. June 15, 2022) (“Contentions that an expert's

assumptions are unfounded or ‘gaps or inconsistencies in the reasoning leading to the

expert's opinion go to the weight of the evidence, not to its admissibility.’” (quoting

Restivo v. Hessemann, 846 F.3d 547, 577 (2d Cir. 2017) (alterations and internal

quotation marks omitted in Vali Mgmt. Partners).

Similarly, with regard to the “research definition sepsis,” Dr. Lentnek’s Dep. Tr. at

12, Dr. Lentnek testified that

It depends upon the specific protocol and research study you are operating under

and each research protocol defines sepsis as fits the needs of that protocol, so if

there are 300 sepsis studies ongoing in North America right now there will be 300

different definitions, all very similar but all slightly different in their details and

specifics.

Dr. Lentnek’s Dep. Tr. at 12-13.

Again, Dr. Lentnek’s deposition testimony cannot be construed as establishing an

inflexible test for identifying or diagnosing a patient with sepsis. There thus is no merit

to Defendants’ argument that Dr. Lentnek’s Opinion is unreliable because it does not

comply with Dr. Lentnek’s own asserted criteria, or any other criteria required for

diagnosing sepsis. Moreover, Defendants do not contend that Dr. Lentnek’s opinion is

unreliable based on a lack of verifiable scientific data or other medical knowledge to

support the medical indicia of sepsis or that sepsis can arise on account of the presence

of a single protocol, i.e., Plaintiff’s elevated WBC.

In contrast, a thorough review of Dr. Lentnek’s Opinion establishes it is supported

by Plaintiff’s medical records. In particular, Dr. Lentnek testified Plaintiff likely

experienced a ruptured appendix and sepsis one to two days before arriving at UPMC’s

emergency department. Dr. Lentnek’s Dep. Tr. at 14-15. According to Dr. Lentnek,

Plaintiff presented to UPMC’s emergency department on March 14, 2020 after

experiencing increasingly severe right lower quadrant (“RLQ”) abdominal pain for the

previous two days, and “significant” elevated WBC of 17,100. Dr. Lentnek’s Opinion at

2 (Dkt. 40-7 at 3). Dr. Lentnek also reported that blood cultures from blood drawn upon

Plaintiff’s arrival in the emergency department on March 14, 2020 tested positive for

bacterium. Id. These findings are supported by Plaintiff’s March 14, 2020 medical

records for his emergency department visit for which Plaintiff is reported as presenting

to UPMC’s emergency department on March 14, 2020 with RLQ abdominal pain, pulse

of 128, WBC of 17,100 and bands of 48%. See Plaintiff’s Exh. 5 at 39-41 (UPMC

Emergency Department Evaluation Notes dated March 14, 2020). These clinical

observations, if accepted by the jurors, would establish Plaintiff met the criteria for

sepsis according to UPMC’s sepsis protocol requiring the presence of two objective

criteria including elevated temperature, heart rate exceeding 90 beats per minute,

respiratory rate exceeding 20 breaths per minute, and WBC less than 4000 or greater

than 12,000, or greater than 10% bands. Plaintiff’s Exh. 6.

Moreover, Dr. Grijaval agrees that Plaintiff, based on his WBC of 17,100 and

heart rate or beats per minute (“BPM”) of 128, was septic when he was admitted. Dr.

Grijaval Dep. Tr. at 147 (referencing Plaintiff’s Exh. 5 at 40-41). Dr. Grijaval specifically

testified that Plaintiff “presented with what the parameters [per UPMC’s sepsis protocol]

would give him a sepsis diagnosis and it was because of his burst appendix.” Id. at

146. Dr. Grijaval’s deposition testimony is consistent with Dr. Grijaval’s March 15, 2020

progress notes from the morning after Plaintiff’s surgery, noting that it was Dr. Grijalva’s

intention that Plaintiff continue to receive Zosyn post-surgery. Plaintiff’s Exh. 5 at 44

(“We’ll need to continue IV Zosyn for now due to the extreme amount of peritonitis,

exploded perforated appendix.”). Accordingly, if credited by the jury, Dr. Grijaval’s

deposition testimony would establish both that Dr. Grijalva agreed Plaintiff had a sepsis

infection caused by his perforated appendix prior to performing the appendectomy on

March 14, 2020, as well as that Dr. Grijaval, based on what he observed during the

appendectomy procedure, intended that Plaintiff be continued on Zosyn immediately

following surgery. See Sitts, 811 F.2d at 739 (to establish a prima facie case of medical

malpractice, the plaintiff must present expert testimony in support of the allegations

“unless the alleged act of malpractice falls within the competence of a lay jury to

evaluate”). Defendants’ motion should thus be DENIED insofar as Defendants maintain

that Plaintiff cannot establish a prima facie case of medical malpractice because Dr.

Lentnek’s Opinion is unreliable.

Insofar as Plaintiff maintains he suffered long-term consequences from his sepsis

infection, Defendants argue that Dr. Lentnek’s Opinion cannot establish that Plaintiff

suffered from a prolonged period of sepsis following Plaintiff’s surgical appendectomy

that caused Plaintiff’s short- and long-term consequences. Defendants’ Memorandum

at 18-19 (referencing Dr. Lentnek’s Dep. Tr. at 58:16-59:14, 61:14-15, 61:20-62:21,

63:20-25). In opposition, Plaintiff argues Dr. Lentnek’s Opinion and deposition

testimony, as well as Plaintiff’s deposition testimony, establish issues of fact precluding

summary judgment on the issue of whether Defendants’ failure to resume Plaintiff’s

antibiotic therapy post-operatively was a substantial factor causing Plaintiff to

experience consequences of sepsis long-term. Plaintiff’s Response at 7-8. In further

support of summary judgment, Defendants argue Plaintiff lacks any opinion regarding

long-term consequences attributed to his alleged sepsis infection because Dr. Lentnek

did not review any medical records subsequent to his release from UPMC, and

Plaintiff’s own declaration fails to demonstrate how Plaintiff’s “unrelated professional

experience or education may render him qualified to opin[e] as to whether or when he

experience sepsis and how that may have impacted him physically or neurologically.”

Id. at 8-10. Defendants’ arguments regarding the alleged long-term consequences of

Plaintiff’s sepsis go to the weight of the evidence submitted rather than to the

evidence’s admissibility.19

In particular, the fact that Dr. Lentnek did not personally examine Plaintiff or

review his medical records after Plaintiff was discharged from UPMC does not render

Dr. Lentnek’s Opinion that Defendants’ treatment of Plaintiff’s appendicitis deviated from

accepted medical standards of care as well as that Plaintiff experienced long-term

consequences of his sepsis inadmissible but, rather, goes to the weight of Dr. Lentnek’s

Opinion and testimony. See United States v. Rutigliano, 614 Fed.Appx. 542, 545 (2d

Cir. 2015) (“As the district court observed, the fact that the government's expert did not

examine Rutigliano goes only to the weight the expert's testimony should be afforded,

not to its admissibility.” (citing Boucher, 73 F.3d at 21). See also Richardson v.

19 Defendants do not dispute Plaintiff’s assertion, Plaintiff’s Dep. Tr. at 38-39, 113-14, that he has was

having memory problems and has little memory of March 16, 2020 and the following few days during

which he remained hospitalized at UPMC.

Correctional Medical Care, Inc., 2023 WL 3490904, at * 3 (2d Cir. May 17, 2023)

(unreported) (holding district court erred in finding the opinion of a physician retained on

behalf of the deceased plaintiff as an expert in a medical malpractice action was too

speculative and conjectural as to be unreliable where the opinion was based on the

plaintiff’s medical diagnosis, family history of sudden death, medically documented

episodes of chest pain, dizziness, and low blood pressure, all of which went to the

weight of the expert’s opinion, rather than to its admissibility). Additionally, as Plaintiff

argues, Plaintiff’s Response at 3-5, the opinions of Plaintiff’s expert, Dr. Lentnek, and

Defendants’ expert, Dr. Schwaitzberg, paint significantly different pictures of the

treatment and care of Plaintiff’s appendicitis, appendectomy, and hospitalization at

UPMC that cannot be determined on summary judgment.

In particular, Dr. Lentnek’s Opinion explains that Plaintiff’s medical records

establish that when Plaintiff presented to UPMC’s emergency department on March 14,

2020, Plaintiff exhibited symptoms consistent with a perforated appendix including a

history of several days of increasingly severe RLQ abdominal pain, and significantly

increased WBC, a CT scan of Plaintiff’s abdomen showed fluid in the RLQ with

peritoneal enhancement consistent with perforated appendicitis. Dr. Lentnek’s Opinion

at 2. Prior to surgery, Plaintiff was treated with fluids and a single 4.5 gm dose of

intravenous antibiotic Zosyn at 2:45 P.M., and blood cultures from a blood draw tested

positive for bacterium. Id. Dr. Grijaval performed a laparoscopic appendectomy “finding

a frankly perforated appendix with free stool in the surrounding abdominal cavity.” Id.

Surgical drains were placed and the fluids collected were cultured and showed several

bacteria, yet no further antibiotics were administered until March 16, 2020 at 7:50 A.M.

when Zosyn at 4.5 gms every six hours was resumed. Id. Dr. Grijaval’s first post-op

surgical visit with Plaintiff was in the morning of March 15, 2020, when Dr. Grijaval

wrote at 11:52 A.M. that Plaintiff was feeling much better, and that “We’ll need to

continue IV Zosyn for now due to the extreme amount of peritonitis, exploded perforated

appendix.” Id. at 3-5. Dr. Lentnek references Dr. Grijaval’s response to a question

posed at his deposition regarding why Dr. Grijaval signed the March 15, 2020 progress

note indicating he had reviewed the list of prescribed and scheduled medications which

did not include Zosyn, and Dr. Grijaval explained that his view of the progress notes on

the computer screen required him to scroll down to see all such medications but he did

not recall whether he did scroll down to review all the medications. Id. at 5-7

(referencing Dr. Grijaval’s Dep. Tr. at 87:23-91:9). Dr. Lentnek attributed the continuing

rise in Plaintiff’s WBC to a high of 58,300 on March 19, 2020, accompanied by

increasing severe pain requiring as many as 17 doses of pain medication on March 18,

2020, and decreasing renal function to the fact that Plaintiff, who was in an

immunocompromised state because of his cancer treatment and despite the presence

of significant bacteria in the abdominal cavity resulting from a perforated appendix, to

the failure to regularly or continuously administer antibiotics to treat Plaintiff’s intra-

abdominal infection post-surgery. Id. at 7-10. According to Dr. Lentnek, “[r]ather than

mitigate Dr. Glenn’s sepsis, this failure allowed it to flourish.” Id. at 10.

At his deposition, Dr. Lentnek acknowledged Dr. Grijaval’s removal of the

perforated appendix eliminated the source of the sepsis infection, and agreed that Dr.

Grijaval’s performing an abdominal wash of the peritoneal cavity to mechanically flush

out as much of the bacteria and fecal material as possible, and inserted JP drains

(silicon tubes placed in the abdominal cavity to assist with additional drainage post

surgery) were proper and standard care, but explained that some bacterial inevitably

would be left behind which required antibiotics to treat. Dr. Lentnek’s Dep. Tr. at 16-21.

In particular, Dr. Lentnek testified that, based on a standard dose of 4.5 gm of

Zosyn intravenously every six hours, Plaintiff should have received “at least” 4 doses

during the 36-37 hours post-op that he received none; and that Zosyn can be given

every 4 to 6 hours or continuous infusion because Zosyn has “a very short half-life” of

“approximated one hour.” Dr. Lentnek’s Dep. Tr. at 22-23. A single, pre-operative dose

is appropriate only where the patient is young, in excellent health, and there are no

signs the appendix has ruptured. Id. at 24-25. Dr. Lentnek further attributes the

persistent rise in Plaintiff’s WBC to the sepsis infection spreading into the peritoneal

cavity, id. at 27-28, asserting the antibiotics were not as effective because they were not

started until 36 hours post-op. Id. at 27-29. Dr. Lentnek further believed Plaintiff’s

sepsis infection and its short-term effects were resolving when Plaintiff was discharged

on March 25, 2020, but the long-term consequences of the infection were continuing.

Id. at 29-30. Dr. Lentnek again attributed Plaintiff’s long-term effects of his sepsis

infection to Dr. Grijalva’s deviation from standard care by not ordering antibiotic therapy

starting immediately after surgery. Id. at 30-31.

Dr. Lentnek further testified that based on his training and experience, post-

sepsis patients usually experience long-term consequences including intestinal

blockages caused by scarring and some degree of mental impairment particularly with

regard to higher levels of mental functioning. Dr. Lentnek’s Dep. Tr. at 59-62. Although

Dr. Lentnek did not render an opinion within a reasonable degree of medical certainty

as to whether Plaintiff developed post-ICU syndrome (organic brain syndrome

manifested by a variety of psychological reactions including fear, anxiety, depression,

hallucinations, and delirium), id. at 63, Dr. Lentnek testified that based on Plaintiff’s

medical records including nursing notes describing Plaintiff as confused and lethargic,

and indicators of ongoing systemic inflammation, Plaintiff developed sepsis associated

encephalopathy (medical condition affecting brain function leading to changes in mental

state and behavior) while a patient at UPMC. Dr. Lentnek’s Dep. Tr. at 64.

In contrast, Dr. Schwaitzberg’s Opinion acknowledges that a perforated appendix

is likely to result in some sepsis so thy typical protocol is to give antibiotics post-op, but

maintains that there is a trend toward using fewer antibiotics for shorter duration. Dr.

Schwaitzberg’s Opinion at 4-5. According to Dr. Schwaitzberg, once the source of the

infection, i.e., Plaintiff’s perforated appendix, was removed, the abdominal wash to flush

bacteria from the peritoneal cavity, along with the placement of the JP drains was just

as effective as administering antibiotics. Id. at 5. Dr. Schwaitzberg further attributes

Plaintiff’s continually increasing WBC not to the presence of a sepsis infection for which

the WBC typically ranges from 15,000 to 25,000, but instead to “the process of a

sustained inflammatory insult over the three or four days prior to being brought to the

hospital by his surgeon,” id. at 5, which was a “stressor event” that triggered a

leukemoid reaction rather than an infection. Id. at 6.

In addition to contrasting expert opinions, other evidence in the record, including

the deposition testimony of Dr. Grijalva and Plaintiff, establish issues of fact as to

whether Dr. Grijalva’s failure to prescribe Zosyn following Plaintiff’s appendectomy was

a deviation from standard medical care that caused Plaintiff to experience short and

long-term health problems. In particular, Dr. Grijalva testified that while performing

Plaintiff’s appendectomy, it was apparent that Plaintiff’s appendicitis was advanced and

unusually complicated based on fluid and pus within the peritoneal cavity, the appendix

was completely “perforated, destroyed, black” with stool and pus coming out of it and

with only stringy, necrotic tissue remaining. Dr. Grijalva Dep. Tr. at 68-70.

Following Plaintiff’s appendectomy, Dr. Grijalva assumed Plaintiff remained on Zosyn

post-op, even though Zosyn is not listed on Plaintiff’s medications. Id. at 125-26. Dr.

Grijalva explained he ordered on March 18, 2020 a consultation with nephrologist Dr.

Kandukurti because Plaintiff’s laboratory work showed renal insufficiency. Dr. Grijalva

Dep. Tr. at 107-108. Dr. Kandukurti diagnosed Plaintiff with acute renal insufficiency or

acute kidney injury (“AKI”) which was multi-factorial including peritonitis due to abscess,

hypertension, gram-negative sepsis (systemic inflammatory response syndrome caused

by spread of gram-negative bacteria into the bloodstream), and hyponatremia (low

blood sodium). Id. at 107-08. Plaintiff’s AKI was noted to have been compounded by

two doses of ibuprofen administered upon Plaintiff’s admission. Id. at 107-109.

Following Dr. Kandukurti’s consultation, two antibiotics that had been prescribed,

including clindamycin and tobramycin, were discontinued because they were

considered as possibly nephrotoxic. Id. at 118-19. According to Dr. Grijalva, although

Plaintiff’s AKI was noted in Plaintiff’s medical chart, Dr. Brown ordered the tobramycin

which is known to be nephrotoxic, id. at 119-20, and Dr. Grijalva discontinued the

tobramycin as soon as he knew about it. Id. at 122-23.

Plaintiff testified that although initially he felt better on March 15, 2020, the day

after the appendectomy, he had hardly any memory of the next few days other than that

he had worsening headaches although he was not sure whether the discontinuation of

the Zosyn for 37 hours, during which time he received no antibiotics, contributed to the

headaches. Plaintiff’s Dep. Tr. at 119-21. Plaintiff explained it was his understanding

that after he was not on antibiotics for 37 hours, his infection did not immediately

respond to “a whole host of different ones” when the antibiotics were restarted leaving

him ”very sick” as his WBC continued to elevate. Id. at 123-24. Based on his elevated

WBC and “altered mental status,” Plaintiff believed he was septic. Id. at 126. Contrary

to Dr. Schwaitzberg’s opinion on this issue, see Discussion, supra, at 31, according to

Plaintiff, no medical provider ever attributed his elevated WBC to his cancer treatments.

Id. at 124-25. Plaintiff also described episodes of problems thinking, hallucinations, and

electric shock sensations in his legs that a neurologist at UPMC, Dr. Murphy, attributed

to “some kind of focal seizure [originating in the brain] activity.” Id. at 129-30. Plaintiff

had at least one additional episode of the seizure activity after being discharged from

UPMC and prior to returning to Florida, id. at 131-32, but the visual and auditory

hallucinations continued for up to six months after. Id. at 135-36. Upon returning to

Florida and establishing treatment with Dr. Aubert, Plaintiff underwent diagnostic

neuropsychologic testing that showed Plaintiff with memory deficits exceeding what

would be anticipated based on his age. Id. at 140-42. Plaintiff attributes his memory

deficits to the 37-hour gap in antibiotics treatment post-operatively which allowed the

bacteria in his blood stream to substantially increase. Id. at 144-46. This is consistent

with Dr. Lentnek’s opinion that the failure to continue Plaintiff on Zosyn immediately

following surgery cause the sepsis infection “to flourish” and Plaintiff to develop sepsis-

associated encephalopathy based on Plaintiff’s confusion and lethargy. Dr. Lentnek’s

Dep. Tr. at 64-65. Plaintiff also maintains that since his hospitalization at UPMC, he has

experienced decreased coordination particularly with stairs and at one point his hands

shook as though he had a tremor, although most of Plaintiff’s coordination issues had

resolved by the time of his deposition. Plaintiff’s Dep. Tr. at 151-54.

The divergent expert opinions, along with other evidence including, inter alia, the

deposition testimony of Dr. Grijalva and Plaintiff, establish issues of fact that must be

resolved by a jury. Accordingly, summary judgment as Defendants request should be

DENIED.

Defendants alternatively argue that UPMC cannot be held vicariously liable for

the negligence of other, unnamed UPMC employees in connection with the care and

treatment of Plaintiff, Defendants’ Memorandum at 19. As Defendants observe in

further support of summary judgment, Defendants’ Reply at 10, Plaintiff does not

respond to this argument. Accordingly, this argument has been abandoned by Plaintiff.

See Whitt v. Kaleida Health, 298 F. Supp. 3d 558, 567–68 (W.D.N.Y. 2018) (“Where, as

here, a counseled non-moving party submits ‘a partial response arguing that summary

judgment should be denied as to some claims while not mentioning others,’ the Court

may deem that the response is ‘an abandonment of the unmentioned claims.’”) (quoting

Jackson v. Fed. Exp., 766 F.3d 189, 195 (2d Cir. 2014))). Accordingly, Defendants’

motion should be GRANTED insofar as Plaintiff seeks to hold UPMC vicariously liable

for the negligent acts of any employees other than Dr. Grijalva.

CONCLUSION

Based on the foregoing, Defendants’ motion (Dkt. 40), should be DENIED in part

and GRANTED in part. The matter should be scheduled for trial.

Respectfully submitted,

/s/ Leslie G. Foschio

______________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: March 27, 2025

Buffalo, New York

ORDERED that this Report and Recommendation be filed with the Clerk of the

Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the

Clerk of the Court within fourteen (14) days of service of this Report and

Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of

the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an

extension of such time waives the right to appeal the District Court's Order.

Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human

Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d

Cir. 1988).

Let the Clerk send a copy of this Report and Recommendation to the attorneys

for the Plaintiff and the Defendants.

SO ORDERED.

/s/ Leslie G. Foshio

______________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: March 27, 2025

Buffalo, New York