HALL v. OPERATIONAL LLC PA MD PLLC (2025)

Upon the following papers read on defendant Anthony Chris Theodoris, M.D.’s motion for summary judgment in his favor on the issue of liability (motion sequence #002); defendant Daniel Owens, P.A. (sued herein as David Owens, P.A.) motion for summary judgment in his favor on the issue of liability (motion sequence #003); and defendant L & A Operational, LLC d/b/a Luxor Nursing and Rehabilitation at Sayville's motion for summary judgment in its favor on the issue of liability (motion sequence #004): NYSCEF documents 1 thru 192; it is hereby

ORDERED that Anthony Chris Theodoris, M.D.’s motion for summary judgment in his favor on the issue of liability is denied; and it is

ORDERED that Daniel Owens, P.A.’s motion for summary judgment in his favor on the issue of liability is denied; and it is

ORDERED that L & A Operational, LLC d/b/a Luxor Nursing and Rehabilitation at Sayville's motion for summary judgment in its favor on the issue of liability is denied.

Plaintiff, Anita Hall as Administratrix of the Estate of Loriene Ann Hall-Evans, commenced this action alleging medical malpractice, wrongful death, and negligent supervision against Anthony Chris Theodoris, M.D. (hereinafter “Dr. Theodoris”) on April 7, 2021, under previous index number 604585/2021. Dr. Theodoris answered on August 23, 2021. Plaintiff, in relevant part, also commenced an action against Daniel Owens, P.A. (hereinafter “P.A. Owens”) and L & A Operational, LLC d/b/a Luxor Nursing and Rehabilitation at Sayville (hereinafter “Luxor”) on March 16, 2021. Plaintiff filed an amended summons on April 7, 2021. P.A. Owens answered on July 9, 2021, July 13, 2021, and an amended answer to the amended complaint on August 26, 2021. Luxor answered on July 7, 2021. On September 9, 2022, the matter was consolidated under index number 622220/2022. That action alleged medical malpractice against Khalid A. Noori, M.D., Long Island Comprehensive Medical Care, PLLC, and Sanjay Galhotra, M.D. Issue has been joined as to all defendants. Discovery is complete and a note of issue was filed on July 10, 2024.

Dr. Theodoris now moves for an order dismissing the complaint as asserted against him. In support of the motion, he submits, among other things, the pleadings, an affirmation of counsel, a memorandum of law, the deposition transcripts of plaintiff, Shikha Gupta, R.N., P.A. Owens, Dr. Theodoris, Dr. Galhotra, decedent's Luxor medical records, and an expert affirmation of Edward Eden, M.D., a board-certified pulmonologist.

P.A. Owens moves for an order dismissing the complaint as asserted against him. In support of the motion, he submits, among other things, the pleadings, an affirmation of counsel, a memorandum of law, the deposition transcripts, decedent's Luxor medical records, an expert affirmation of Steve Salzman, M.D., a board-certified pulmonologist and professor of medicine.

Luxor also moves for an order dismissing the complaint as asserted against it. In support of the motion, Luxor submits, among other things, the pleadings, an affirmation of counsel, and the deposition transcripts of Dr. Theodoris and P.A. Owens. Luxor maintains that if Dr. Theodoris and P.A. Owens are granted summary judgment then the claims against Luxor based upon vicarious liability must be dismissed.

In opposition, plaintiff submits an affirmation of counsel, and the expert affirmation of Wilfredo Talavera, M.D.

Loriene Ann Hall-Evans was a resident at Luxor since 2012. She suffered from early onset and progressively worsening multiple sclerosis. She was disabled and required the use of a wheelchair and needed assistance with bathing, feeding, and medications. She also suffered from paraplegia (an impairment in motor or sensory function of the lower extremities), generalized muscle weakness, chronic urinary tract infections, anxiety disorder, major depressive disorder, primary hypertension, hypotension, cognitive communication deficit, gastroesophageal reflux disease, muscle spasms, optic neuritis, hypothyroidism, and dysphasia (a difficulty in swallowing). She was 55 years old. Dr. Theodoris was an independent physician contactor who performed pulmonary consultations on patients when requested at Luxor. P.A. Owens was an employee of Dr. Theodoris’ company, Long Island Comprehensive Medical Care, PLLC. In 2018 the decedent had three pulmonary consultations by P.A. Owens. On October 12, 2018, she was treated by P.A. Owens for cough and congestion; on October 16, 2018, for increased congestion; and October 23, 2018, for cough.

On March 18, 2019, decedent, at 3:41 a.m., complained of left side breast pain. Her blood pressure was 137/99 and oxygen saturation 98 %. She was seen by Dr. Sanjay Galhotra who ordered Nystatin powder (an antifungal medication for skin infections), Tylenol, and Protonix (used for gastroesophageal reflux). Dr. Galhotra also ordered a chest x-ray, EKG, and a blood test including CBC, CMP, and troponin (high levels of troponin could be a sign of a heart attack or heart damage). By 10:28 a.m. on March 18 the chest X-ray and EKG were still not done, despite 6 hours and 47 minutes passing. The blood test was also not performed.

On March 19, 2019, at 3:00 a.m., decedent had usual, unlabored respirations with no shortness of breath. The EKG, chest X-ray, and blood testing were still not performed.

On March 19, 2019, at 10:34 a.m., Dr. Theodoris, by his P.A. Owens, examined decedent for a pulmonary consultation for “increased dyspnea” (difficulty breathing). Decedent told P.A. Owens she was feeling “yucky” and was “very sweaty”. P.A. Owens’ examination noted no chest pain, no abdominal pain, and oxygen saturation was 94 %. His assessment was COPD and chronic hypoxic respiratory failure. He noted that the chest X-ray, EKG, and blood work were still not completed (now more than 31 hours after being ordered). P.A. Owens testified he discussed his assessment with Dr. Theodoris.

On March 19, 2019, at 2:57 p.m., notes indicate decedent had even, unlabored breaths, and was afebrile (without a fever). She had no signs or symptoms of cardiac or respiratory distress. At 3:52 p.m. decedent had an elevated AST of 331 and NP Patel ordered a right quadrant sonogram. At 4:48 p.m., decedent had severe anxiety due to the chest X-ray not being performed. She was given Klonopin (a benzodiazepine used to treat anxiety disorders), and she calmed after 20 minutes. The chest X-ray was still not performed.

On March 19, 2019, at 9:46 p.m., the chest X-ray, EKG, and right upper quadrant sonogram were still not completed (now more than 42 hours after being ordered).

On March 20, 2019, decedent suffered a heart attack. At 12:04 p.m. she had a fever. Troponin levels were extremely elevated, the chest X-ray was clear, but the EKG was still not done. At 12:15 p.m., Luxor's staff called 911, and nitroglycerin and aspirin were given. She was transferred to Brookhaven Hospital where she died at 1:44 p.m. from an acute heart attack while in the cath lab.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (see CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Moonilal v Roman Catholic Church of St. Mary Gate of Heaven, 225 AD3d 592, 206 NYS3d 686 [2d Dept 2024]; Morejon v New York City Tr. Auth., 216 AD3d 134, 191 NYS3d 427 [2d Dept 2023]).

Healthcare professionals must exercise due care in caring for patients (see e.g. Nestorowich v Ricotta, 97 NY2d 393, 740 NYS2d 668 [2002]). “The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage” (E.K. v Tovar, 185 AD3d 803, 127 NYS3d 580 [2d Dept 2020]; see Messeroux v Maimonides Med. Ctr., 181 AD3d 583, 121 NYS3d 136 [2d Dept 2020]). To meet its prima facie burden on summary judgment, a defendant in a medical malpractice action must show either that it “did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries” (Joyner v Middletown Med., P.C., 183 AD3d 593, 594, 123 NYS3d 169, 171 [2d Dept 2020]; see Castillo v Surasi, 181 AD3d 786, 121 NYS3d 291 [2d Dept 2020]). In opposition, a plaintiff must “raise a triable issue of fact regarding the element or elements on which the defendant has made its prima facie showing” (Aliosha v Ostad, 153 AD3d 591, 61 NYS3d 55 [2d Dept 2017]; see Stukas v Streiter, 83 AD3d 18, 918 NYS2d 176 [2d Dept 2011]).

Defendant Dr. Theodoris’ expert, Dr. Edward Eden, a board-certified expert in pulmonology, opines that Dr. Theodoris did not fail to communicate with his physician assistant, P.A. Owens, and that they discussed the assessment of decedent fully within the standard of care. That the EKG was previously ordered by Dr. Galhotra, and that there was no need to re-order it. He opines that cardiac care is not the role of a pulmonary consultant, and that EKG's are ordered and followed by house physicians. Likewise, Dr. Eden opines that blood work and chest X-rays are cardiac care and the responsibility of the house physicians. Dr. Eden emphasizes that decedent was not experiencing chest pain at the time of P.A. Owens’ examination. Dr. Eden opines that the chart was properly documented, and decedent had no signs of myocardial infarction at the time of the pulmonary consult. Notably, she was not experiencing chest pain. Dr. Eden opines that the decedent's laboratory results, including the elevated troponin levels, were not available to P.A. Owens at the time of the consultation, and in any event, were being followed by Dr. Galhotra. Dr. Eden opines that Dr. Theodoris properly hired, supervised, and retained P.A. Owens. It is Dr. Eden's opinion within a reasonable degree of medical certainty that Dr. Theodoris did always not negligently depart from accepted medical and hospital practice during decedent's pulmonary consultation, and that he acted within good and accepted standards of residential care in the treatment rendered to the decedent. He concludes that decedent's myocardial infarction, related complications, and death were unavoidable and were not caused by Dr. Theodoris.

P.A. Daniel Owens’ expert, Steve Salzman, M.D., a board-certified pulmonologist opines, within a reasonable degree of medical certainty, that the care and treatment by P.A. Owens was, at all times, in accordance with good and accepted medical practice, and that no act or omission caused or contributed to any of the injuries asserted by the plaintiff. Dr. Salzman specifically opines, within a reasonable degree of medical certainty, that it was the responsibility of Dr. Galhotra to follow up on lab work, including troponin levels, chest x-rays, and the EKG, not P.A. Owens’. Dr. Salzman also opines that plaintiff's cause of action for lack of informed consent must be dismissed because P.A. Owens performed no procedures on decedent. Interestingly, the amended complaint alleges, as a first cause of action, a violation of New York Public Health Law Sections 2801-d and 2803-c; negligence as against all defendants as a second cause of action; medical malpractice as a third cause of action; and wrongful death as a fourth cause of action.

Defendant Luxor argues only that if Dr. Theodoris and P.A. Owens have established their entitlement to summary judgment as to the claims against them, then all claims of vicarious liability against Luxor must be dismissed.

Here, Dr. Theodoris and P.A. Owen have established, through the affirmations of their experts, Dr. Eden and Dr. Salzman, their prima facie entitlement to summary judgment on the issue of liability. Therefore, Luxor has also established, as to any vicarious liability claim its entitlement to summary judgment.

In opposition, plaintiff, through its expert Wilfredo Talavera, who is board certified in internal medicine with a sub certification in pulmonary disease, has raised triable issues of fact as to each movant herein. Dr. Talavera opines that when assessing a patient with shortness of breath a physician must first think of either a pulmonary or cardiac cause. It is Dr. Talavera's opinion, within a reasonable degree of medical certainty, that P.A. Owens and Dr. Theodoris departed from accepted standards of care in failing to include myocardial infarction or heart attack in their differential diagnosis of decedent on March 19, 2019. Dr. Talavera opines that P.A. Ownes and Dr. Theodoris needed to act on an urgent basis to ensure a cardiac workup was complete. He opines it was a deviation from the standard of care not to make sure that the EKG and troponin levels were performed. He further opines that the failure to send decedent to the hospital on March 19, 2019, was a departure from accepted standards of care as the situation was clearly a medical emergency, based upon shortness of breath, heavy perspiration, chest pain, heartburn, nausea, vomiting and tachycardia. Dr. Talavera further opines that had decedent been taken to the catheterization lab on March 19, 2019, “she would have more likely survived with coronary intervention.” Given the differing expert opinions here, the motions for summary judgment are denied as the several issues of fact are best resolved by a jury.

Paul M. Hensley, J.