Zeak v. The United States et al
OPINION AND ORDER re: 35 MOTION for Summary Judgment filed by The United States: For the reasons discussed herein, the Government's motion for summary judgment is GRANTED. The Clerk of Court is directed to terminate Docket Entr y 35. Because the Government has not moved for summary judgment on Plaintiff's claims of negligent hiring and retention, these claims have not be addressed. The parties are hereby directed to appear for a conference on November 10, 2014, at 3:00 p.m. in Courtroom 618 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York to discuss Plaintiff's remaining claims. (Signed by Judge Katherine Polk Failla on 10/20/2014) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANN ZEAK, as Executor of the Estate of
UNITED STATES OF AMERICA, et al.,
DOC #: _________________
DATE FILED: October 20, 2014
11 Civ. 4253 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
On November 10, 2009, Steven Sullivan died during a surgical procedure
at the James J. Peters VA Medical Center (the “Bronx VA”), a medical facility
located in the Bronx, New York, and operated by the United States Department
of Veteran Affairs (the “VA”). Plaintiff, daughter of the deceased, initiated this
action on June 22, 2011, alleging medical malpractice, negligent hiring and
retention, and failure to obtain informed consent. Plaintiff brings these claims
under the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 1346, 2671-2680,
against Defendant United States of America (the “Government”). The
Government now moves for summary judgment concerning Plaintiff’s claims of
medical malpractice and failure to obtain informed consent. Because Plaintiff
has failed to identify a genuine issue of material fact concerning these claims,
the Government’s motion is granted.
The November 10, 2009 Surgical Procedure
Beginning in 1999, medical tests revealed that Steven Sullivan had
developed a chest disease that affected his right lung and caused him to suffer
from fevers, increased phlegm production, and an elevated white blood cell
count. (Def. 56.1 ¶ 3). On February 24, 2009, a computerized tomography
(“CT”) scan taken at the Bronx VA revealed serious abnormalities with Sullivan’s
right lung. (Id. at ¶ 5). Doctors at the Bronx VA recommended surgery, but, at
that time, Sullivan declined any surgical intervention. (Def. 56.1 ¶ 6; Camunas
On October 28, 2009, Sullivan returned to the Bronx VA, where further
tests showed that the condition of his right lung had worsened significantly.
(Def. 56.1 ¶ 7; Cargo Decl., Ex. F at 1 (“The infection in the right lung had
progressed between March and November. In that time, the infection had
completely taken over the right lung. The right lung was no longer
The facts stated herein are drawn from the parties’ submissions in connection with the
instant motion, including Defendant’s Local Rule 56.1 Statement of Undisputed Facts
(“Def. 56.1”) (Dkt. #39); Plaintiff’s responses thereto (“Pl. 56.1 Response”) (Dkt. #49); and
the exhibits attached to the Declaration of Shane Cargo (“Cargo Decl.”) (Dkt. #37).
References to individual deposition transcripts will be referred to as “[Name] Tr.” For
convenience, Defendant’s opening brief will be referred to as “Def. Br.”; Plaintiff’s
opposition brief as “Pl. Opp.”; and Defendant’s reply brief as “Def. Reply.”
Citations to a party’s Local Rule 56.1 Statement incorporate by reference the documents
cited therein. Where facts stated in a party’s Local Rule 56.1 Statement are supported
by testimonial or documentary evidence, and denied with only a conclusory statement by
the other party, the Court finds such facts to be true. See S.D.N.Y. Local Rule 56.1(c)
(“Each numbered paragraph in the statement of material facts set forth in the statement
required to be served by the moving party will be deemed to be admitted for purposes of
the motion unless specifically controverted by a corresponding numbered paragraph in
the statement required to be served by the opposing party.”); id. at 56.1(d) (“Each
statement by the movant or opponent … controverting any statement of material fact
must be followed by citation to evidence which would be admissible, set forth as required
by Fed. R. Civ. P. 56(c).”).
functional.”)). One of the doctors who examined Sullivan during this hospital
visit was Dr. Jorge Camunas, a thoracic surgeon with nearly 30 years of
experience. (Def. 56.1 ¶ 9; Camunas Tr. 27-31). Having examined Sullivan
during prior visits, Dr. Camunas was already familiar with Sullivan’s history
and condition. (See Camunas Tr. 24-27). Dr. Camunas recommended a
pneumonectomy, a surgical procedure that would entail the complete removal of
Sullivan’s right lung. (Id. at 31 (“[T]he lung was so destroyed that to be able to
control that infection in the long term basis, the lung had to be removed.”)).
Although Sullivan had declined surgery in February, after speaking with Dr.
Camunas in October about the progression of his disease, he agreed to the
pneumonectomy. (Id. (“I saw him at his bedside again and showed him the xrays …. showing how the process involving his right lung had progressed from
the previous time and third time. Eventually it was the whole right lung. It was
then that he said he wanted to have surgery.”); Zeak Tr. 70-72).
On November 9, 2009, Sullivan signed a consent form for the surgery.
(Def. 56.1 ¶¶ 8, 11). The form was also signed by a resident at the Bronx VA
and another witness, the latter of whom attested that he observed the patient
and the practitioner sign the form. (Cargo Decl., Ex. E at 5-6). The form
explained that, while “[u]nder general anesthesia, patient will have right lung
removed….” (Id. at 2). The expected benefits of the surgical procedure listed on
the consent form were “removing the infected, poorly functioning lung and to
potentially improve ease of breathing and oxygenation.” (Id.). The known risks
listed on the consent form were “infection, blood loss, injury to surrounding
organs and structures, [and] potential loss of life.” (Id.). The consent form
explained that the only alternative to the procedure was “no treatment[,] which
could cause further deterioration of ability to breathe, and possible inability to
oxygenate generally.” (Id.).
On November 10, 2009, Dr. Camunas began performing the
pneumonectomy with the assistance of an additional thoracic surgeon, Dr.
Chun Loh, and a surgical resident, Dr. Catherine Madorin. (Camunas Tr. 4749; Loh Tr. 29-31). Part of the procedure required the surgeons to access
Sullivan’s pulmonary veins — blood vessels that connect the heart to the lungs.
(Def. 56.1 ¶ 14; Cargo Decl., Ex. F at 1; Camunas Tr. 46). Sullivan’s doctors,
however, faced difficulty in seeing the pulmonary veins because Sullivan’s right
lung — which was stiff due to the infection — did not collapse following
dissection. (Def. 56.1 ¶ 14; Cargo Decl., Ex. F at 1; Camunas Tr. 45-46).
Although his visibility of the veins was poor, Dr. Camunas was able to feel the
inferior pulmonary vein by using his fingers. (Def. 56.1 ¶ 14; Cargo Decl., Ex. F
at 1; Camunas Tr. 46-47). While placing his finger around the inferior
pulmonary vein, Dr. Camunas caused the vein to tear, which resulted in severe
bleeding. (Def. 56.1 ¶ 14; Cargo Decl., Ex. F at 1; Camunas Tr. 47, 51, 59).
The doctors attempted to control the bleeding, but were unsuccessful. (Def.
56.1 ¶ 15). Doctors administered fluids and performed CPR, but were unable to
save Sullivan’s life. (Camunas Tr. 55-57; Cargo Decl., Ex. F at 1). Sullivan died
approximately 30 to 40 minutes later. (Camunas Tr. 55; Cargo Decl., Ex. F at
Following the surgery, Dr. Camunas and Dr. Madorin informed Plaintiff,
who had come to the hospital after the surgery commenced, that Sullivan had
died. (Camunas Tr. 40; Zeak Tr. 78). Dr. Camunas explained to Plaintiff that
her father died “because of a vessel, pulmonary vein that tore as I was trying to
get around that vein….” (Camunas Tr. 40). Dr. Camunas said he was “very
sorry.” (Id. at 41). Plaintiff responded to this news by telling Dr. Camunas that
her father had not indicated that the surgery was “so risky.” (Id. at 39). She
asked Dr. Camunas for more details about her father’s medical condition and
about the surgical procedure. (Id. at 41-42). Several hours later, Dr. Camunas
provided Plaintiff with a letter setting forth this information. (See Cargo Decl.,
Ex. F). Dr. Camunas also provided Plaintiff with information about how to
submit a claim with the VA for survivor benefits. (Id. at 2; Zeak Tr. 85).
The Instant Litigation
Plaintiff initiated this action on June 22, 2011, alleging medical
malpractice, negligent hiring and retention, and failure to obtain informed
consent. (Complaint (“Compl.”) ¶ 1). Plaintiffs served various entities and
individuals, including the Government, in July 2011 (Dkt. #2), and the
Government filed an Answer on September 6, 2011 (Dkt. #3).
Initially, Plaintiff included as Defendants the VA, the Bronx VA, Dr.
Camunas, Dr. Madorin, and Dr. Loh (collectively, the “Other Defendants”).
(Compl. ¶ 1). On September 16, 2011, the Honorable Deborah A. Batts, the
District Judge to whom this case was then assigned, issued an Order to Show
Cause why Plaintiff’s action against the Other Defendants should not be
dismissed for failure to prosecute. (Dkt. #4). On November 1, 2011, after
Plaintiff failed to respond to the Order, the Honorable J. Paul Oetken, the
District Judge to whom this case had been reassigned, dismissed Plaintiff’s
claims against the Other Defendants. (Dkt. #6).
On November 10, 2011, Plaintiff moved to vacate the Order dismissing the
Other Defendants and requested an extension within which to file a motion for
default against the Other Defendants. (Dkt. #7). Judge Oetken granted this
application on the same day. (Id.). On November 18, 2011, Plaintiff filed an
Order to Show Cause why a default judgment should not be entered against the
Other Defendants. (Dkt. #9). On November 28, 2011, the Government filed a
response (Dkt. #10), in which it argued that, under the FTCA, the sole and
exclusive remedy for certain specified torts “arising or resulting from the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment” is a suit against the United
States. 28 U.S.C. § 2679. On February 23, 2012, Judge Oetken dismissed
Plaintiff’s claims against the Other Defendants. (Dkt. #17). On June 24, 2013,
the action was reassigned to this Court. (Dkt. #23).
The Expert Witnesses
The parties engaged in fact and expert discovery from November 16, 2012,
to December 13, 2013, culminating in the deposition of Plaintiff’s expert, Dr.
Michael Zervos. (See Dkt. #25, 29). Because of the criticality of the expert
testimony to this motion, it is discussed in detail in the remainder of this
Plaintiff’s Expert Report
Plaintiff’s expert, Dr. Zervos, is a cardiothoracic surgeon and assistant
professor of cardiothoracic surgery at New York University (“NYU”) School of
Medicine. (Def. 56.1 ¶ 18). In his expert report submitted in connection with
this action, Dr. Zervos offered a number of opinions after having reviewed
Sullivan’s medical chart and the transcript of Dr. Camunas’s deposition
testimony. (Cargo Decl., Ex. H at 1). Dr. Zervos’s first opinion was that the
operative note (or “opnote”) — a note prepared by the surgeons following the
procedure — was deficient. (Id.). Dr. Zervos opined that the “opnote [wa]s …
confusing and has several errors.” (Id.). Dr. Zervos added that the operative
note “was also dictated three days after the surgery by the resident.” (Id.). In
Dr. Zervos’s estimation, “for a case like this, the operating surgeon should have
dictated the note himself and made special notice to certain details of the
procedure and the problems related to the surgery as a more experienced
person than the resident.” (Id.).
The second opinion contained in Dr. Zervos’s report concerns Dr.
Camunas’s decision to continue the surgical procedure despite the lack of
visibility of the pulmonary veins. (Cargo Decl., Ex. H at 1). In this regard, Dr.
If I had a difficult time visualizing pulmonary veins, I
would not attempt isolation without being able to see.
There should have been a backup plan or a bailout type
procedure…. If I got into the pericardium and could not
get around the blood supply I would have tried an
alternative procedure such as debriding as much
infection and necrotic lung as possible and covering the
rest with muscle, or used an [eloesser] flap [i.e., a
surgically-created, skin-lined tract to promote drainage
of pus from the area surrounding the lungs].
Dr. Zervos’s third opinion was that he would have ordered several preoperative tests that did not appear on Sullivan’s chart. (Cargo Decl., Ex. H at
1). Specifically, Dr. Zervos noted that: (i) “the formal pulmonary function was
not documented in the chart”; (ii) “I did not see a formal clearance from
Cardiology and a stress test to ascertain whether or not a right
pneumonectomy would have been possible”; and (iii) “I always obtain a
Qualitative perfusion scan [i.e., a test to determine the amount of blood flowing
to the lungs] prior to surgery to estimate the amount of perfusion that would be
subtracted if the right lung would be removed.” (Id.).
Dr. Zervos’s fourth and final opinion was that, during the surgery, he
would have taken additional precautions to ensure Sullivan’s cardiovascular
health. (See Cargo Decl., Ex. H at 1). Specifically, Dr. Zervos stated that he
“would have definitely done this case in a heart room with a heart surgeon on
standby and I do not think that the infection makes that impossible.” (Id.). He
offered similar views on the possibility of a bypass, observing, “I do not think
cardiopulmonary bypass is contraindicated because of infection.” (Id.).
The Government’s Expert Report
The Government’s expert, Dr. Bernard K. Crawford, is a thoracic surgeon
and director of general thoracic surgery at the Tisch Hospital NYU Langone
Medical Center. (Def. 56.1 ¶ 21). The Government served Plaintiff with Dr.
Crawford’s expert report opining on the treatment and surgery after receiving
Dr. Zervos’s report. (See Cargo Decl., Ex. I). Of note, Dr. Crawford opined that
“[t]he operation itself was conducted in a standard fashion…. The scarring
around the pulmonary vein due to years of infection resulted in the tearing of
the vessel during dissection and manipulation. This is the expected difficulty
in these cases.” (Id. at 2).
With respect to additional tests that could have been performed prior to
surgery, Dr. Crawford opined that these were not necessary under the
circumstances. (Def. 56.1 ¶ 26; Cargo Decl., Ex. I at 2). And with respect to
the use of a heart-lung machine during Sullivan’s surgery, Dr. Crawford
submitted that this “technique … would result in uncontrollable bleeding when
doing an extrapleural pneumonectomy,” and, perhaps worse yet, “would not
decrease the chance of injury to the pulmonary veins during the dissection.”
(Cargo Decl., Ex. I at 2). With respect to alternatives to pneumonectomy, Dr.
Crawford observed that less aggressive procedures that did not remove all of
the infected tissue “would leave this patient in the same position as when he
entered the hospital, i.e. in danger of infecting his left lung and dying a septic
death.” (Id. at 3). Finally, Dr. Crawford opined that “[a]ppropriate consent was
obtained clearly outlining the risk as well as benefits of the procedure.” (Id. at
Plaintiff’s Expert Deposition Testimony
During his deposition, Dr. Zervos elaborated on, and in certain respects
retreated from, the opinions contained in his expert report. With respect to the
first opinion regarding certain deficiencies with the operative note, Dr. Zervos
testified that his opinion as to who should dictate the note “is my opinion and
my opinion alone.” (Zervos Tr. 44). As to the potential three-day gap between
when the surgery occurred and when the operative note was dictated, Dr.
Zervos conceded that “[t]here are no guidelines for this…. I just feel that it is a
better, safer approach to do that in that way.” (Id. at 45).2 Dr. Zervos
reiterated that he found the note to be confusing, but clarified that the “errors”
to which he referred in his expert report were typographical and not
substantive. (See id. at 49, 54-55).
With respect to the second opinion, that Dr. Camunas should have
implemented a backup or “bailout” procedure once he encountered difficulty
seeing the pulmonary veins, Dr. Zervos testified — consistent with his report —
that he would not have proceeded with the surgery in that eventuality,
although he equivocated somewhat in his testimony. (Compare Zervos Tr. 67
(“[I]f I were unclear as to my ability to see and definitely perform what I had to
do, I am not so sure that I would do that.” (emphasis added)), and id. at 74 (“[I]f
I’m in the operating room and I cannot achieve what I set out to achieve …
which is removal of the lung, if I could not do that because I wouldn’t visualize
or for whatever reasons the lung was plastered to the blood vessels leading to
the lung and I couldn’t specifically visualize it and I couldn’t see a way around
that, I might just stop the surgery at that point and remove whatever loose
The record is not clear on when the dictation occurred. The operative note indicates an
“entry date” of November 10, 2009. (Cargo Decl., Ex. D at 17). The operative note was
signed by Dr. Madorin on November 13, 2009, and by Dr. Camunas on November 19,
2009. (Id. at 19). Dr. Zervos testified that he could not tell whether the operative note
was dictated on November 10, the “entry date,” or November 13, the date on which Dr.
Madorin signed the operative note. (Zervos Tr. 42).
debris or loose necrotic tissue was in the chest, put some drains in and close
the chest and call it a day.” (emphasis added)), with id. at 68 (“All I am saying
is that if I were not able to see I would not attempt.”), and id. at 70 (“If I
couldn’t see what I was doing I wouldn’t do that, yes.”)). Significantly, however,
Dr. Zervos made clear that this opinion represented the approach he would
have taken if confronted with the complication of not being able to visualize the
pulmonary veins; he did not opine about what approach other doctors would
(or should) have taken if faced with a similar challenge. (See id. at 78 (“I don’t
know what other surgeons would do …. You may find ten other surgeons that
say something different.”); id. at 80 (“Now, that’s just me. I’m sure that you
can find ten other guys that will tell you, I’m not leaving this operating room
without having that lung out.”)).
With respect to his third opinion, regarding pre-operative testing, Dr.
Zervos reiterated his preference to conduct additional tests. (See Zervos Tr. 87
(“I just think that it is my preference, and this is what I do when I’m
undertaking such a major operation, I want all the information that I can have
in front of me beforehand….”); id. at 89 (“I just think that having had that
documented beforehand would have been a nice thing.”)). Dr. Zervos added
before one embarks on such a major operation, and I
think that this is something that the majority of
thoracic surgeons will do, they will look at detailed
pulmonary function tests. And at least in the hospitals
I work at and the experience that I’ve had, all of the
surgeons perform a qualitative perfusion scan as well
Id. at 88. With respect to clearance from the Cardiology Department, Dr. Zervos
testified that “you cannot go based on a clearance from 2009. That’s just not
what’s done.” (Id.).3 But while he testified that he would have ordered
additional pre-operative tests prior to surgery, Dr. Zervos also testified that —
given the condition of Sullivan’s lung — the decision to perform the
pneumonectomy was appropriate. (See id. at 12, 14). Further, he testified that
the additional pre-operative tests would not have disclosed the specific
complication that Dr. Camunas encountered in visualizing the pulmonary vein.
(See id. at 97).
With respect to the fourth opinion, about the use of a heart-lung
machine, cardiopulmonary bypass technology, or performing the surgery in a
“heart room,” Dr. Zervos testified that he was not sure he actually would have
utilized these precautions. (Zervos Tr. 101 (“I’m not saying that the heart-lung
machine should have been something that I would have done beforehand or
that I would have prepared for that.”); id. at 102 (“Q: You are saying if you had
been the surgeon, you would have done it in a heart room or you don’t know?
You would have to know more information? A: That’s a little speculative.
That’s sort of like Monday morning quarterbacking a little bit.”)).
During his deposition, there were several topics on which Dr. Zervos
explicitly disclaimed an expert opinion. Of particular significance to the
instant motion, Dr. Zervos testified that he could not define the standard of
During the deposition, Dr. Zervos testified that he believed that clearance from the
Cardiology Department had been obtained two years prior to the surgery. (Zervos Tr. 8).
When reminded that clearance from the Cardiology Department had been obtained in
early 2009 (less than a year prior to surgery), Dr. Zervos indicated that relying on such
clearance would have been “more acceptable.” (Id. at 99).
care owed Sullivan under these circumstances. (See Zervos Tr. 37 (“I don’t like
that terminology because I don’t think that in medicine we have standards of
care. I don’t think that there is a book that says this is the standard of care for
this.”)). He further testified that he would not opine on whether Dr. Camunas
departed from the relevant standard of care in his treatment of Sullivan. (See
id. at 77 (“Again, I’m not going to comment on this. I’m not going to offer an
opinion to what is something — a perceived standard of care to something that
somebody did to a standard of care — I’m just not going to do that.”)). Finally,
after reading through the expert report prepared by the Government’s
witness — Dr. Crawford — Dr. Zervos added,
I feel different on a lot of these issues and I think that
you can take multiple other physicians and you would
get multiple other opinions…. I’m just saying you have
another thoracic surgeon here who says that everything
was done appropriately; that I think you can get ten
other thoracic surgeons and you might get ten other
(Id. at 103-04). Finally, Dr. Zervos expressed no expert opinion on whether the
doctors acted appropriately after the tear in Sullivan’s pulmonary vein
occurred, when they attempted to stop the bleeding and save Sullivan’s life (id.
at 105), or whether the doctors obtained Sullivan’s informed consent prior to
the surgery (id. at 72).
The Instant Motion
On December 31, 2013, shortly after the deposition of Dr. Zervos, the
Government informed the Court of its intention to file a motion for summary
judgment. (Dkt. #31). On January 27, 2014, the Court held a conference to
discuss the Government’s anticipated motion. (Dkt. #40). The Government’s
motion for summary judgment was filed on March 10, 2014 (Dkt. #35);
Plaintiff’s opposition was filed on May 9, 2014 (Dkt. #48); and the motion was
fully briefed as of the filing of the Government’s reply on May 23, 2014 (Dkt.
#50). The Court now considers the Government’s motion.
Under Fed. R. Civ. P. 56(a), summary judgment may be granted only if all
the submissions taken together “show that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
The moving party bears the initial burden of demonstrating “the absence
of a genuine issue of material fact.” Celotex, 477 U.S. at 323. A fact is
“material” if it “might affect the outcome of the suit under the governing law,”
and is genuinely in dispute “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
The movant may discharge this burden by showing that the nonmoving party
has “fail[ed] to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y.
Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (finding summary judgment
appropriate where the non-moving party fails 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” (internal quotation marks omitted)).
If the moving party meets this burden, the nonmoving party must “set out
specific facts showing a genuine issue for trial” using affidavits or otherwise,
and cannot rely on the “mere allegations or denials” contained in the pleadings.
Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 323-24; Wright v.
Goord, 554 F.3d 255, 266 (2d Cir. 2009). The nonmoving party “must do more
than simply show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (internal quotation marks omitted), and cannot rely on “mere speculation
or conjecture as to the true nature of the facts to overcome a motion for
summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).
Furthermore, “[m]ere conclusory allegations or denials cannot by themselves
create a genuine issue of material fact where none would otherwise exist.”
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and
Plaintiff’s Medical Malpractice Claims Fail
Evaluation of Medical Malpractice Claims at the Summary
“The FTCA makes the United States liable for certain tort claims,
including medical malpractice, committed by federal employees as determined
by state law.” Lettman v. United States, No. 12 Civ. 6696 (LGS), 2013 WL
4618301, at *3 (S.D.N.Y. Aug. 29, 2013); see generally Phillips v. Generations
Family Health Center, 723 F.3d 144, 147, 150 (2d Cir. 2013). FTCA claims are
analyzed “in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b). Accordingly, as the surgery took place in New
York, this Court will apply New York law to Plaintiff’s claims.
Although New York law governs the substantive claims, federal law
governs the burdens that the parties must meet at the summary judgment
stage. See Tingling v. Great Atl. & Pac. Tea Co., No. 02 Civ. 4196 (NRB), 2003
WL 22973452, at *2 (S.D.N.Y. Dec. 17, 2003) (“The issue of what burden a
movant for summary judgment bears when the ultimate burden of proof lies
with the non-movant is procedural rather than substantive … and accordingly
is subject to federal rather than state law.”); see also Hughes v. United States,
No. 12 Civ. 5109 (CM), 2014 WL 929837, at *4 (S.D.N.Y. Mar. 7, 2014) (“Even
though the substantive claims are governed under New York law, the procedural
issues are determined under the federal standard.”); Doona v. OneSource
Holdings, Inc., 680 F. Supp. 2d 394, 396 (E.D.N.Y. 2010) (“[T]he respective
burdens that the parties bear in a summary judgment motion are procedural
rather than substantive, and are thus subject to federal rather than state law.”).
Accordingly, because federal law governs the parties’ respective burdens on
summary judgment, the Government may “satisfy its burden for summary
judgment under [Fed. R. Civ. P. 56(a)] by pointing to an absence of evidence to
support an essential element of the nonmoving party’s claim.” Shimunov v.
Home Depot U.S.A, Inc., No. 11 Civ. 5136 (KAM), 2014 WL 1311561, at *3
(E.D.N.Y. Mar. 28, 2014) (internal quotation marks and citation omitted).
To prevail on a medical malpractice claim under New York law, a plaintiff
must demonstrate “[i] that the defendant breached the standard of care in the
community, and [ii] that the breach proximately caused the plaintiff’s injuries.”
Arkin v. Gittleson, 32 F.3d 658, 664 (2d Cir. 1994); accord Hytko v. Hennessey,
879 N.Y.S.2d 595, 598 (3d Dep’t 2009). Furthermore, “it is well established in
New York law that 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.3d 736, 739 (2d Cir. 1987)
(internal quotation marks and citation omitted). Plaintiffs are only excused
from providing expert testimony in medical malpractice cases where “a deviation
from a proper standard of care [is] so clear and obvious that it will be within the
understanding of the ordinary layman without the need for expert testimony.”
Id. at 740. For example, in cases “where a dentist has pulled the wrong tooth,
or where an unexplained injury has occurred to a part of the body remote from
the site of the surgery, expert testimony is not needed for the establishment of
the plaintiff’s prima facie case.” Id. (internal citations omitted).
Plaintiff’s Failure to Provide Expert Testimony Concerning
Both the Appropriate Standard of Care and Its Breach Is Fatal
to Her Medical Malpractice Claims
The Government argues it is entitled to summary judgment because the
Plaintiff failed to provide expert testimony that Dr. Camunas breached the
relevant standard of care, or that any such breach proximately caused
Sullivan’s injury and death. (Def. Br. 23-25; Def. Reply 3-4). The Court agrees,
finding that Dr. Zervos’s expert report and testimony fail to provide the evidence
needed for Plaintiff to make out a prima facie case of medical malpractice under
During his deposition, Dr. Zervos repeatedly disclaimed the ability to
define the standard of care. Plaintiff cannot overcome this deficiency. “Under
New York law, a plaintiff in a medical malpractice action must produce medical
testimony to establish the proper standard of care.” Hegger v. Green, 646 F.2d
22, 29 (2d Cir. 1981); see also Perricone-Bernovich v. Gentle Dental, 875
N.Y.S.2d 169, 171 (2d Dep’t 2009) (finding defendant was entitled to judgment
as a matter of law where “plaintiffs’ expert specifically stated that he did not
form an opinion as to whether the defendant departed from any standard of
care and, in fact, was ‘not quite sure’ what the standard of care was”); Sohn v.
Sand, 580 N.Y.S.2d 458, 459 (2d Dep’t 1992) (finding defendant was entitled to
judgment as a matter of law where plaintiff’s expert “did not expressly state that
the defendant’s conduct constituted a deviation from the requisite standard of
care”). Here, unable or unwilling to opine on the appropriate standard of care,
Dr. Zervos was, a fortiori, unable or unwilling to opine on whether Dr. Camunas
breached this standard of care. (See Zervos Tr. 77 (refusing to compare
“something that somebody did to a standard of care”)). What is more, for only
one of his four opinions — his opinion that Dr. Camunas should have stopped
the surgery and performed a “bailout” procedure — did Dr. Zervos even attempt
to establish any causal link between Dr. Camunas’s decisions or actions and
the patient’s injury and death. “To defeat Defendants’ Rule 56 motion, Plaintiff
must — but did not — submit expert medical opinion supporting her theory of
causation.” Kennedy v. N.Y. Presbyterian Hosp., No. 09 Civ. 6256 (RMB), 2011
WL 2847839, at *4 (S.D.N.Y. July 6, 2011).
Plaintiff argues that Dr. Zervos’s expert testimony supports a prima facie
case of malpractice, noting that “New York law does not require that an expert
use any particular phrases or magic words in offering an opinion.” (Pl.
Opp. 12). See also Knutson v. Sand, 725 N.Y.S.2d 350, 354-55 (2d Dep’t 2001)
(“A court’s duty … is not to reject opinion evidence because non-lawyer
witnesses … fail to use the words and phrases preferred by lawyers and judges,
but rather to determine whether the whole record exhibits substantial evidence
that there was a departure from the requisite standard of care.”). While the
Court agrees that Plaintiff’s expert was not required to use specific terms of art
in his expert report or deposition testimony, the Court disagrees that, taken as
a whole, the record contains evidence that there was a departure from the
relevant standard of care.
With respect to his first opinion — that the operative note was confusing,
and that it was dictated by a resident three days after the surgery — Dr. Zervos
acknowledged that there were “no guidelines for this.” (Zervos Tr. 45). In
consequence, Plaintiff can provide no evidence that the manner in which Dr.
Camunas and his colleagues maintained or created the operative note deviated
from the relevant standard of care. Furthermore, even if the preparation of the
operative note had deviated from the standard of care, Dr. Zervos did not testify
as to any causal link between the operative note and Sullivan’s death, as would
be required for Plaintiff to set forth a prima facie case for malpractice.
With respect to Dr. Zervos’s second opinion — that Dr. Camunas should
have attempted a “bailout” procedure after encountering difficulties in
visualizing the pulmonary vein — Dr. Zervos testified that, “I don’t know what
other surgeons would do. All I can say is what I would do under the given
circumstance …. You may find ten other surgeons that say something
different.” (Zervos Tr. 78). Accordingly, Plaintiff has failed to provide evidence
that Dr. Camunas’s decision to continue with the pneumonectomy deviated
from the standard of care.4
Dr. Zervos’s third opinion — that several pre-operative tests should have
been ordered — comes the closest among all of his opinions to establishing a
breach of a standard of care. Dr. Zervos testified that “the majority of thoracic
surgeons … will look at detailed pulmonary function tests,” and “all of the
surgeons perform a qualitative perfusion scan as well ….” (Zervos Tr. 88
(emphasis added)). With respect to clearance from the Cardiology Department,
Dr. Zervos testified that “you cannot go based on a clearance from 2009. That’s
just not what’s done.” (Id. (emphasis added)). This testimony suggests Dr.
Zervos believed that Dr. Camunas breached the standard of care by not
ordering at least some of these additional pre-operative tests. As noted above,
Conversely, the Government’s expert, Dr. Crawford — who also reviewed Sullivan’s chart
and Dr. Camunas’s deposition transcript — stated that the operation proceeded in “a
standard fashion,” and that the “tearing of the pulmonary vein during dissection and
manipulation” was among the “expected intraoperative hazard[s].” (Cargo Decl., Ex. I at
Dr. Zervos’s opinion was factually incorrect, inasmuch as it was predicated in
part on the mistaken belief that clearance from the Cardiology Department had
been obtained two years prior to the surgery, when it had in fact been obtained
less than one year prior. (See id. at 98-99). More pointedly, however, Plaintiff
failed to establish through expert testimony any causal link between the failure
to order these pre-operative tests and Sullivan’s injury and death. Dr. Zervos
certainly did not testify that any of these tests would have predicted the
complication that Dr. Camunas faced in accessing the pulmonary vein or would
have prevented the tear of the pulmonary vein from occurring. (Id. at 97). Cf.
Estiverne v. Esernio-Jenssen, 833 F. Supp. 2d 356, 381-82 (E.D.N.Y. 2011)
(denying summary judgment where plaintiff’s expert testified that defendants
failed to order additional testing that would have led to a diagnosis of plaintiff’s
injury). Indeed, Plaintiff has provided no expert testimony that results from
these pre-operative tests would have affected the decision to go ahead with the
surgery in any material respect. (See id. at 14 (“As far as I could tell, the
surgery was indicated, based on the reports.”)).
As to the fourth opinion in Plaintiff’s expert report — that the surgery
should have been performed in a “heart room” or with the use of a heart-lung or
cardiopulmonary bypass machine — Dr. Zervos testimony again falls short of
establishing that any extra precautions with respect to Sullivan’s cardiovascular
health should have been taken. When asked about this particular opinion
during his deposition, Dr. Zervos testified that, “I’m not saying that the heartlung machine should have been something that I would have done beforehand
or that I would have prepared for that.” (Zervos Tr. 101). This testimony fails to
establish that Dr. Camunas breached the requisite standard of care in not
taking the additional cardiovascular precautions Dr. Zervos identified in his
In short, Plaintiff has failed to make out a prima facie case of medical
malpractice and the Government is entitled to summary judgment on this basis.
“If a plaintiff cannot establish a prima facie case without the benefit of expert
testimony, and the plaintiff is unable to procure such testimony, then summary
judgment is appropriate.” Adorno v. Corr. Servs. Corp., 312 F. Supp. 2d 505,
514 (S.D.N.Y. 2004) (citing Grassel v. Albany Med. Ctr. Hosp., 636 N.Y.S.2d 154,
155 (3d Dep’t 1996)).
No Genuine Issues of Material Fact Remain as to Plaintiff’s
Medical Malpractice Claims
Plaintiff argues that numerous genuine issue of material fact remain,
precluding summary judgment in favor of the Government. The Court
disagrees, and shall address each of Plaintiff’s arguments in turn.
First, Plaintiff argues that “issues of fact remain as to whether attempting
to isolate the pulmonary vein without being able to see was good and acceptable
medical practice.” (Pl. Opp. 12). Plaintiff, however, has provided no expert
testimony that attempting to isolate the pulmonary vein without seeing it
constituted a breach of the standard of care; instead, Plaintiff’s expert testified
Additionally, Dr. Crawford disagrees that these cardiovascular precautions should have
been taken, and opines, without contravention from Plaintiff, that utilizing one of the
proposed techniques “would result in uncontrollable bleeding when doing an
extrapleural pneumonectomy.” (Cargo Decl., Ex. I at 2).
that it was not a technique he would choose to employ, but also noted several
times that other surgeons might. (See Zervos Tr. 78-80). Furthermore, the
Government’s expert witness opined that the procedure “was conducted in the
standard fashion.” (Cargo Decl., Ex. I at 2).
Plaintiff argues that issues of fact remain as to whether the doctors
adequately controlled the bleeding after the tear occurred. (Pl. Opp. 13-14).
But Plaintiff has adduced no evidence whatsoever that the doctors failed to act
appropriately following the tearing of the pulmonary vein. Plaintiff’s expert
specifically noted that he did not intend to offer any opinion as to the doctors’
response following the tear. (Zervos Tr. 105-06).
Somewhat cryptically, Plaintiff argues that several issues of fact remain
as to “whether the operation occurred as Dr. Camunas claimed.” (Pl. Opp. 16).
Plaintiff suggests, for instance, that Dr. Madorin — the resident who assisted
with the surgery — was actually the lead surgeon. (Id. at 17). In support of this
allegation, Plaintiff argues that (i) the operative note was dictated by Dr.
Madorin; (ii) Dr. Madorin is listed on the operative note as the “surgeon”;6
Dr. Madorin used the first-person plural — “we” — when describing the
procedure in the operative note; and (iv) Dr. Loh testified that Dr. Madorin
assisted during the dissection of the lung. (Id.). Plaintiff also points to
Dr. Zervos’s comment during deposition that the operative note “reads as if the
resident … performed the surgery.” (Zervos Tr. 47). That Dr. Madorin was the
lead surgeon during the procedure is pure speculation, and not a genuine issue
It bears noting that Dr. Camunas is listed on the operative note as the “attending
surgeon.” (Cargo Decl., Ex. D at 17).
of material fact. See Rosales v. Fischer, No. 07 Civ. 10554 (LAP), 2011 WL
253392, at *8 (S.D.N.Y. Jan. 24, 2011) (“[S]uch speculation is insufficient to
create a genuine issue of material fact as to [defendant’s] involvement in the
alleged assaults.”). Plaintiff did not depose Dr. Madorin, but she did depose the
other two surgeons who participated, Dr. Camunas and Dr. Loh. Dr. Camunas
testified that he was the lead surgeon, and that Dr. Madorin assisted him,
primarily by providing exposure to the operating area. (Camunas Tr. 48-49).
Dr. Loh’s testimony is completely consistent with this account. (Loh Tr. 30 (“He
[Dr. Camunas] was doing the surgery and she [Dr. Madorin] was providing
exposure.”)). Even Plaintiff’s expert testified that “Dr. Camunas was the main
operating surge[on]; the resident was the resident surgeon; and then Dr. Loh
was the second assistant surgeon.” (Zervos Tr. 107). Accordingly, there is no
factual dispute as to who performed the surgery.
Plaintiff also argues that issues of fact remain as to what degree of
visibility Dr. Camunas had of the pulmonary vein. (Pl. Opp. 16). Plaintiff points
to an alleged discrepancy between Dr. Camunas’s testimony (which indicated
that he found the vein by touch alone) and the operative note (which indicated
that Dr. Camunas could see the vein “intermittently”). (Id.). Even assuming
this factual issue remains, it is not material because Dr. Zervos, who had an
opportunity to review Dr. Camunas’s testimony and the operative note before
testifying, made clear the basis for his testimony: “My understanding was [the
doctors] weren’t able to see, but despite that [the doctors] actually attempted
something. All I am saying is that if I were not able to see I would not attempt.”
(Zervos Tr. 68 (emphases added)). Dr. Zervos’s testimony that he would have
stopped the surgery is predicated on the understanding that Dr. Camunas had
no visibility of the veins. Nonetheless, Dr. Zervos declined to offer an opinion
that Dr. Camunas’s actions in continuing the surgery constituted a breach of
the standard of care. The only conceivable factual dispute that remains is
whether Dr. Camunas had more visibility of the veins than Dr. Zervos believed
when he provided his expert testimony. Resolution of this factual dispute in
Plaintiff’s favor — that is, establishing as a fact that Dr. Camunas proceeded
with the surgery with no visibility — will leave Plaintiff exactly where she
currently stands, with expert testimony insufficient to support a prima facie
case of malpractice. Accordingly, this factual dispute is immaterial and does
not preclude summary judgment. See Anderson, 477 U.S. at 248 (“Only
disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.”).
Plaintiff further argues that a discrepancy in the testimonies of
Dr. Camunas and Dr. Loh creates an issue of fact remains as to whether
Dr. Camunas tore the pulmonary vein with an instrument or with his finger.
(Pl. Opp. 16; compare Camunas Tr. 50-51, and Cargo Decl., Ex. D at 18, with
Loh Tr. 37-38). But Plaintiff overstates this discrepancy and its import. During
Dr. Loh’s testimony, he stated that Dr. Camunas “was trying to go around the
pulmonary vein” with “very fine right angle instruments.” (Loh Tr. 37-38). But
Dr. Loh also testified that he did not know how the vein was torn and that he
could not see the tear. (Id. at 38). Again, even assuming that this factual issue
remains, it is immaterial because Plaintiff has failed to present expert testimony
indicating that the use of an instrument near the pulmonary vein would
constitute a breach of the standard of care.
Additionally, Plaintiff argues that issues of fact remain as to whether preoperative testing was sufficient. (Pl. Opp. 18). However, as with the other
outstanding factual issues Plaintiff asserts, the allegation of inadequate preoperative testing has not been established with expert testimony showing that a
breach of the standard of care occurred.
Finally, Plaintiff argues that summary judgment in favor of the
Government is not warranted because factual issues remain as to whether the
doctors obtained Sullivan’s informed consent to the surgical procedure. (Compl.
¶¶ 95-106; Pl. Opp. 18-21). Where, as here, it is alleged that a medical provider
failed to advise the patient of the “reasonably foreseeable risks and benefits of,
and alternatives to, the treatment proposed and rendered” (Compl. ¶ 96), a lack
of informed consent claim is simply “a species of a medical malpractice
negligence claim,” Soriano v. United States, No. 12 Civ. 4752 (VB), 2013 WL
3316132 (S.D.N.Y. July 1, 2013) (citing Messina v. Matarasso, 729 N.Y.S.2d 4, 7
(1st Dep’t 2001)). “To succeed in a medical malpractice cause of action
premised on lack of informed consent, a plaintiff must demonstrate that [i] the
practitioner failed to disclose the risks, benefits and alternatives to the
procedure or treatment that a reasonable practitioner would have disclosed and
[ii] a reasonable person in the plaintiff’s position, fully informed, would have
elected not to undergo the procedure or treatment.” Orphan v. Pilnik, 15 N.Y.3d
907, 908 (N.Y. 2010). As the Government correctly points out (see Def.
Reply 9), this variety of medical malpractice claim must also be supported by
expert testimony. See Orphan, 15 N.Y.3d at 908 (“Expert medical testimony is
required to prove the insufficiency of the information disclosed to the plaintiff.”);
Gardner v. Wider, 821 N.Y.S.2d 74, 76 (1st Dep’t 2006) (“[A] plaintiff’s claim for
medical malpractice based on lack of informed consent must be dismissed if the
plaintiff fails to adduce expert testimony establishing that the information
disclosed to the patient about the risks inherent in the procedure is
qualitatively inadequate.”). Dr. Zervos’s expert report contained no opinion as
to the adequacy of the information disclosed to Sullivan and he made clear
during his deposition that he did not intend to offer any opinion on this issue.
(Zervos Tr. 72).
Although the Court is sympathetic to the loss Plaintiff has suffered, the
Court also recognizes that the law is clear that medical malpractice claims must
be supported by expert testimony. Plaintiff’s inability to produce expert
testimony to support a prima facie case of medical malpractice is fatal to those
For the reasons discussed herein, the Government’s motion for summary
judgment is GRANTED. The Clerk of Court is directed to terminate Docket
Because the Government has not moved for summary judgment on
Plaintiff’s claims of negligent hiring and retention, these claims have not be
addressed. The parties are hereby directed to appear for a conference on
November 10, 2014, at 3:00 p.m. in Courtroom 618 of the Thurgood Marshall
Courthouse, 40 Foley Square, New York, New York to discuss Plaintiff’s
Dated: October 20, 2014
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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