SHIWPRASAD v. Daniel Berman M.D., et al., Defendants. (2026)

Order, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about March 3, 2025, which, to the extent appealed from, denied defendant New York City Health & Hospital Corp.'s motion for summary judgment dismissing so much of plaintiff's complaint premised on its treatment of decedent on March 14, 2010, unanimously affirmed, without costs.

In this action alleging medical malpractice and wrongful death, plaintiff alleges, as relevant to this appeal, that HHC departed from the standard of care in diagnosing and treating decedent's infection when she presented to Jacobi Hospital's emergency department on March 14, 2010.

HHC met its prima facie burden by submitting the expert affirmations of licensed physicians who were board certified, respectively, in obstetrics and gynecology, emergency medicine, and internal medicine with a sub-specialty in infectious diseases, and who based their opinions on the medical record, including decedent's lack of fever upon presentation, the timing of her first symptoms nine days after a March 3, 2010 surgical-pregnancy termination at 23 weeks, and her laboratory results (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986] ).  HHC's experts opined that defendant comported with the accepted standard of care in treating decedent, by diagnosing decedent with a urinary tract infection and lumbago, prescribing pain medication and an oral antibiotic, Macrobid, and discharging her with instructions to return if she developed a fever over 101 degrees or heavy bleeding.  In forming their opinion, defendant's experts opined that decedent's clinical picture – specifically that she was afebrile and nine days post-procedure when she first started manifesting symptoms – did not indicate serious infection to require admission to the hospital at that time.  Given the timeline of her symptoms, defendant's experts further opined that the decedent's subsequent diagnosis of endocarditis on March 26, 2010, was not related to the pregnancy termination.  Thus, defendant established prima facie entitlement to summary judgment (see Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012] ).

However, plaintiff demonstrated triable issues of fact by offering the conflicting opinions of her own medical experts who opined that defendant deviated from accepted practice in treating the decedent on March 14, 2010, and that this deviation was a proximate cause of the decedent's injuries and eventual death (see Severino v Weller, 148 AD3d 272, 273 [1st Dept 2017] ).  Plaintiff's infectious diseases expert opined that defendant deviated from accepted practice by ignoring the decedent's full clinical picture when she presented to the ED on March 14, 2010, which included her recent surgical procedure, reported severe abdominal pain rated, elevated white blood cell count, and bacteria in her urine.  The expert opined that the absence of a fever did not eliminate the possibility of serious infection given that decedent had recently been administered antibiotics and steroids.  For the same reason, the expert opined that the decedent's signs of infection could have been suppressed, leading to their delayed onset.  Based on her experts' opinions, plaintiff asserts that decedent should have been hospitalized and placed on a course of IV antibiotics.

We reject defendant's contention that the affirmation of plaintiff's infectious disease expert should not be considered because it did not comply with CPLR 2309(c).  The motion court reviewed the unredacted signed and sworn affirmation in camera, and the absence of a certificate of compliance is not a fatal defect (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009] ).

Even if the source of the decedent's infection was never identified, plaintiff's experts raised a triable issue of fact as to causation by opining that defendant's failure to appropriately diagnose and treat the decedent in the ED allowed her infection to progress so that four days later she was admitted for respiratory distress, suffered two cardiopulmonary arrests in late March 2010 and was treated for a possible bacterial infection based on her clinical presentation.

We have considered defendant's remaining contentions and find them unavailing.