ALMANZAR v. Henry James Behar, M.D., et al., Defendants. (2024)

Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about February 6, 2023, which denied defendants Reginald Ankrah, CRNA, Eugene Ornstein, M.D., and The New York Presbyterian Hospital's (defendants) motion for summary judgment dismissing the complaint against them, unanimously affirmed, without costs.

Although defendants met their prima facie entitlement to summary judgment, plaintiff's experts raised issues of fact as to whether defendants injured plaintiff's decedent's inferior vena cava during the insertion of an epidural, causing her death days later (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002];  Cregan v. Sachs, 65 AD3d 101, 108–109 [1st Dept 2009]).  Contrary to defendants' assertions, plaintiff's experts' opinions were not speculative, as they were based upon record facts, specifically the autopsy report and accompanying photographs of the decedent's inferior vena cava (cf.  Montilla v. St. Luke's–Roosevelt Hosp., 147 AD3d 404, 407 [1st Dept 2017]).  Nor were plaintiff's experts' opinions based on new theories of liability (cf.  Rotante v New York Presbyt.  Hosp.-N.Y. Weill Cornell Med. Ctr., 175 AD3d 1142, 1143 [1st Dept 2019]).  Accordingly, the issue of the cause of the decedent's death should be determined by a jury (see Lo Presti v Hospital for Joint Diseases, 275 A.D.2d 201, 204 [1st Dept 2000]).

We have considered defendants' remaining arguments and find them unavailing.