Neomi Bendavid, Plaintiff, v. THE UNIVERSITY HOSPITAL OF COLUMBIA AND CORNELL WEILL CORNELL MEDICINE COLUMBIA DOCTORS COLUMBIA UNIVERSITY IRVING MEDICAL CENTER JENNIFER KUO BARBARA COONS (2026)

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review:

NYSCEF #s: 46—65, 66, 67—70, 71—72

Defendants The New York and Presbyterian Hospital, sued herein as New York-Presbyterian ("NYPH"), The Trustees of Columbia University in the City of New York, sued herein as Columbia Doctors et al  ¹ ("Columbia"), Jennifer Kuo, M.D. ("Dr. Kuo"), and Barbara Coons, M.D. ("Dr. Coons") move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's Complaint against them (Seq. No. 1).

Plaintiff opposes the motion. In their reply, Defendants argue that the parties stipulated to adjourn this motion, and Plaintiff's opposition papers were filed nine days after the March 11, 2026 deadline set forth in the stipulation (NYSCEF Doc. 66). However, the Court will consider all papers herein and disregard the untimeliness as non-prejudicial, pursuant to CPLR 2004.

Plaintiff does not oppose the part of the motion seeking summary judgment on any claims related to pre-operative treatment (other than obtaining informed consent), post-operative treatment, dysphagia, infection, or claims based on CPLR 1601. Accordingly, summary judgment is granted on those claims without opposition.

Plaintiff commenced this action on June 9, 2021, asserting claims of medical malpractice and lack of informed consent in connection to a parathyroidectomy on January 31, 2020, resulting in vocal cord damage.

Plaintiff was 62 years old at the time of the events at issue. In August 2019, she had been diagnosed with hyperthyroidism and referred to the Endocrine Clinic at NYPH. Although she was asymptomatic, her blood labs and bone density scans revealed elevated calcium levels and osteoporosis, and a CT scan revealed a left inferior parathyroid adenoma.

Plaintiff presented to Defendant Dr. Kuo, an employee of Defendants NYPH / Columbia, for a surgical consultation on January 2, 2020. On examination, Dr. Kuo assessed her with hyperthyroidism and parathyroid gland disorder. Plaintiff was cleared for parathyroidectomy surgery by her primary care physician on January 19, 2020.

On January 31, 2020, Plaintiff underwent a parathyroidectomy performed by Dr. Kuo. Defendant Dr. Coons was a fourth-year resident who assisted in the surgery. According to the medical record and testimony, Dr. Coons's role included placing the order for local anesthetic (20 cc of bupivacaine and lidocaine), administering the local anesthetic, and holding retractors. After the procedure, Plaintiff was transferred to the Post-Anesthesia Care Unit and discharged the same day.

Following the surgery, Plaintiff had persistent complaints of hoarseness and raspy voice, which did not resolve. In April 2020, she was diagnosed with left vocal cord paralysis by nonparty Dr. Friedman, an ENT specialist. She was also treated by nonparty otolaryngologist Dr. Pitman, who performed a laryngostroboscopy and diagnosed her with dysphonia, unilateral vocal fold paralysis, disorder of the larynx, and disorder of the vocal cord in June 2020.

Plaintiff returned to Dr. Kuo for a follow-up visit on July 24, 2020. Dr. Kuo documented that "her post-operative course has been complicated by a left recurrent nerve palsy with paralysis of her left vocal cord." She recorded that she had discussed Plaintiff's treatment options with Dr. Pitman, and although Plaintiff was hesitant to undergo any further procedures, she advised her that she had "confirmed permanent palsy" and it was unlikely her symptoms would show any improvement without "injection augmentation and/or left laryngoplasty in the future."

Plaintiff alleges that Defendants Dr. Kuo and Dr. Coons departed from the standard of care in their performance of the January 31, 2020, and their departures proximately caused Plaintiff's permanent laryngeal nerve injury and loss of voice. Plaintiff also alleges that Dr. Kuo failed to properly inform her of the risks and alternatives of the procedure, and the parathyroidectomy was performed without her informed consent.

Plaintiff's claims against NYPH and Columbia arise from vicarious liability for both defendants Dr. Kuo and Dr. Coons. The institutional defendants do not contest their vicarious liability for either physician.

In evaluating a summary judgment motion in a medical malpractice action, the court considers the "essential elements" of medical malpractice: "(1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024] [internal quotation marks and citations omitted].) "Thus, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries. To meet that burden, a defendant must submit in admissible form factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice." (I.d.) "If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof" (Delia v Wieder, 236 AD3d 857, 858 [2d Dept 2025]). "Generally, summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Garcia v Hollander, 241 AD3d 651, 653 [2d Dept 2025] [internal quotation marks and citations omitted].) However, "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]).

In support of their motion, the movants submit an expert affirmation from Kepal N. Patel, M.D. ("Dr. Patel"), a licensed physician who affirms he is a general surgeon with relevant experience and education in head and neck surgery, otolaryngology, and endocrine surgery, and has performed parathyroidectomy surgery on many occasions. The Court finds he has laid a proper foundation to opine on the issues of this case.

Dr. Patel opines that the parathyroidectomy procedure was indicated due to Plaintiff's abnormally high calcium of 11.7 (normal 10.3 or lower) and history of osteoporosis, which would leave her "at high risk for fractures and kidney stones" and could have impaired her mobility in the future if her thyroid condition was left untreated.

The movants' expert opines that the primary surgeon Dr. Kuo and assisting resident Dr. Coons did not depart from the standard of care in performing the parathyroidectomy on January 31, 2020. The expert states that they "properly visualized Plaintiff's nerves" during the surgery and utilized nerve monitoring throughout the procedure. The expert opines that all proper measures were taken the avoid nerve injury, and there was no intraoperative sign of damage, with Dr. Kuo recording in the operative report that "an audible nerve signal was obtained" at the end of the procedure.

On the issue of proximate causation, Dr. Patel opines that the type of nerve injury sustained by Plaintiff is a known risk and complication which occurs in 2-3% of parathyroidectomy procedures, and it can occur in the absence of any negligence or malpractice. Here, the expert opines that the exact source of her injury "cannot be determined from the medical evidence," and there are "several different possible causes" despite proper performance of the surgery. The expert further opines that once a permanent nerve injury occurs, "there is very little recourse" as the nerve cannot be surgically repaired, and treatment is limited to alleviating symptoms.

Regarding the alleged acts and omissions of Dr. Coons, the movants argue that she was a resident "supervised at all times" by Dr. Kuo and did not exercise independent medical judgment in the surgical approach or methods.

Based on evaluation of the submissions, the Court finds that the movants have established prima facie entitlement to summary judgment, setting forth expert opinions that Dr. Kuo complied with the standard of care in all treatment of Plaintiff, including the actual performance of the parathyroidectomy. The expert opines that based on the operative report, the procedure was performed appropriately and without complications, and "nerve monitoring" with an audible signal was utilized to mitigate the risk of injury.

As to surgical resident Dr. Coons, it is well established that "when supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene" (Bellafiore v Ricotta, 83 AD3d 632, 633 [2d Dept 2011]; Soto v Andaz, 8 AD3d 470, 471 [2d Dept 2004]). The movants have established prima facie that Dr. Coons did not commit any "independent acts of negligence" during the surgery, and that the primary surgeon's directions were not so "clearly contraindicated" that she was liable for failing to intervene (Cynamon v Mount Sinai Hosp., 163 AD3d 923, 925 [2d Dept 2018]).

Although the opinions from the movants' expert on the potential causes of Plaintiff's nerve injury are broad, the expert has sufficiently opined that Plaintiff's laryngeal nerve injury was an uncommon but known risk of the procedure, and it was not proximately caused by any malpractice from the movants. The burden therefore shifts to Plaintiff to raise an issue of fact as to the standard of care and proximate causation.

In opposition, Plaintiff submits an expert affirmation from a licensed physician [name of expert redacted], board certified in otolaryngology. A signed, unredacted copy of the affirmation was presented to the Court for in camera inspection. The Court finds Plaintiff's expert has established their qualifications to reliably opine on the issues of this case, including otolaryngology and head and neck surgery.

Plaintiff's expert opines that Dr. Kuo and Dr. Coons (who are collectively referred to as "defendants") departed from the standard of care by failing to "visually identify the recurrent laryngeal nerve" during the procedure, failing to properly utilize the nerve-monitoring device, and administering excessive anesthesia in proximity to the nerve. The expert states that visualization, nerve monitoring, and preserving neural conductivity are the "three accepted modalities" to protect the recurrent laryngeal nerve during this type of procedure, and the physicians did not employ these safeguards.

First, Plaintiff's expert opines that Dr. Kuo failed to directly visualize the nerve, as there is no "visualization and direct identification of the nerve" reported during the procedure. The expert counters that movant's opinion that her nerves were properly visualized during the surgery, noting that the operative report included the note "audible nerve signal obtained at the end of the case though nerve never definitively identified" (emphasis added). The expert opines that failing to identify the nerve constituted a departure from the standard of care.

The expert also opines that Dr. Kuo failed to employ "continuous and functional intraoperative nerve monitoring," and the nerve monitoring device was used improperly. In the expert's opinion, a baseline signal must be obtained at the start of the procedure to ensure it is correctly calibrated, and the monitoring should be continuous to alert the physician if they are impinging on a nerve. The expert states that based on Dr. Kuo's testimony and the operative report, there was no visual display or continuous sound from the device. She expressly testified that "we do not use continuous monitoring" because the "constant beep" would be distracting. The expert opines that failing to have "continuous activation during dissection" constituted a departure from the standard of care, as it could not function "as a real-time warning system" which would alert the surgeon to "alter her approach" and prevent nerve damage.

Finally, the expert opines that resident Dr. Coons departed from the standard of care in their administration of anesthetic. In the medical record, Dr. Coons is listed as the physician who entered the order for 20 cc of bupivacaine and lidocaine, and she testified that she injected the local anesthetic. The expert opines that in endocrine neck surgery, due to the fact the surgeon is operating in close proximity to the recurrent laryngeal nerve, it is required to document the "type, concentration, volume, and location" of the local anesthetic, but the operative report is ambiguous on the location of the injection. Further, although the expert states that the anesthesia records do not identify the concentrations used, they opine that 20 cc is "a volume substantially exceeding what is typically required," which increases the risk of "neural conduction blockade" and would render the nerve-monitoring device unreliable. The expert opines that by administering excessive anesthetic in close proximity to the laryngeal nerve, the surgeon may obtain a "false positive" from the nerve monitoring device.

Additionally, the expert also opines that the surgeons departed from the standard of care by not documenting the number and placement of surgical clips, which "should be placed at a safe distance to prevent clip-related compression injury risk."

On the issue of proximate causation as to the claims against Dr. Kuo, the expert counters Dr. Patel's opinion that the nerve injury sustained by Plaintiff was a risk of the procedure which was not causally related to any malpractice. Plaintiff's expert opines that it is an "infrequent" complication affecting less than 3% of patients, and here the acts and omissions of Dr. Kuo substantially increased the risk by failing to visualize the recurrent laryngeal nerve and failing to properly use the nerve monitoring device. Plaintiff's expert opines that the most likely mechanisms for the patient's nerve injury were traction, clip compression, thermal injury, or ischemia, and these risks could have been reduced or the injury prevented with appropriate visualization and monitoring. Thus, the expert opines that their departures from the standard of care in identifying and protecting the recurrent laryngeal nerve were a proximate cause of Plaintiff's injury.

In sum, the expert has raised triable issues of fact with respect to Dr. Kuo's performance of the parathyroidectomy, including whether she deviated from the standard of care in identification of the nerve, continuous nerve monitoring, the administration of anesthesia, and documentation of clip placement in the operative report. "When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution" (Stewart v. North Shore University Hospital at Syosset, 204 AD3d 858, 860 [2d Dept 2022], citing Russell v. Garafalo, 189 AD3d 1100, 1102, [2d Dept. 2020]). Accordingly, the part of the motion seeking summary judgment on behalf of Dr. Kuo is granted to the extent of dismissing the unopposed claims related to pre-operative and post-operative treatment, dysphagia, infection, and CPLR 1602, and the motion is otherwise denied.

Further, although the resident Dr. Coons participated in the surgery under the supervision of Dr. Kuo, Plaintiff's expert has sufficiently raised issues of fact as to the resident's alleged independent acts of malpractice. Based on the medical record and her testimony, Dr. Coons injected the local anesthetic. For this reason, the Court finds there remain issues of fact as to the degree Dr. Coons acted independently in the administration of local anesthesia.

Plaintiff's expert has opined that the volume and location of anesthesia constituted a departure from the standard of care, stating that "the administration of this volume in proximity to the recurrent laryngeal nerve would be expected to impair neural transmission and render electromyographic monitoring unreliable." The expert further opined that it is "physiologically probable that diffusion into adjacent tissue planes — including the tracheoesophageal groove where the recurrent laryngeal nerve courses — would occur, placing the nerve at risk of functional blockade," and therefore this alleged deviation from the standard of care heightened the risk of a nerve injury being undetected and "unpreventable." The Court therefore finds that issues of fact remain as to whether Dr. Coons committed an independent act of negligence, in administering an excessive volume of anesthesia in proximity to the nerve, and whether this alleged departure from the standard of care was a proximate cause of Plaintiff's injury. Accordingly, summary judgment on Dr. Coons's behalf must be denied.

Turning to the cause of action for lack of informed consent, the injured party must ultimately demonstrate at trial:

"(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" (Figueroa-Burgos v Bieniewicz, 135 AD3d 810, 811 [2d Dept 2016] [internal citations and quotation marks omitted]).

Thus, a defendant may establish prima facie entitlement to summary judgment on this claim based on any of these three elements. On the first element, the Second Department has held that:

"[w]hile the signing of a generic consent form by the plaintiff does not establish that a defendant is entitled to summary judgment, a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks" (Pirri-Logan v Pearl, 192 AD3d 1149 [2d Dept 2021] [internal citations omitted]).

Here, the movants submit a general patient consent form signed by Plaintiff prior to the surgery on January 31, 2020, which stated that "the nature and purpose of the surgery or procedure and the potential benefits, risks, and side effects" had been disclosed to her. The movants also cite the medical records of Dr. Kuo which stated that on January 2, she "discussed at length" the risks of the procedure, "not limited to recurrent laryngeal nerve injury." The expert opines that both Dr. Kuo and nonparty Dr. McManus (her referring endocrine physician) appropriately discussed the foreseeable risks and obtained her informed consent. The expert also opines without detail that "alternatives" to the procedure were discussed.

On the second element, the movants' expert opines that the procedure was indicated for Plaintiff, and that "a reasonably prudent person in Plaintiff's condition, having been so informed, would have elected to undergo the parathyroidectomy procedure." Although she had no history of fractures or kidney stones at the time her hyperthyroidism was diagnosed, the expert opines that her osteoporosis and hypercalcemia put her at greater risk of these complications in the future. In light of this, the expert opines that the benefits of the surgery outweighed the minor risk of injury to her vocal cords, and a reasonable person in her position would have undergone the procedure even if fully informed of that risk.

In opposition, Plaintiff argues the boilerplate language regarding risks and benefits in Dr. Kuo and Dr. McManus's office records is disputed by Plaintiff's testimony as to their actual discussions. Plaintiff testified that the referring doctor never discussed the risks of the procedure with her, and that Dr. Kuo told her that "there is a chance that your voice is going to be changed a little bit, but it's going to be back like after a couple of weeks or after a month or two." She contends that she was never informed that nerve damage and a permanent change or loss of voice was a risk of the procedure.

Plaintiff's expert also counters the movants' expert on the second element, opining that a reasonably prudent person in Plaintiff's position would not undergo the procedure if she was informed of the risk of damage to her laryngeal nerve and voice. The expert notes that Plaintiff relied on her voice for her work as a teacher, and that her physicians acknowledged her adenoma was "benign" and asymptomatic. Thus, the expert opines that her parathyroidectomy was not "urgent" or necessary, and in light of that risk, a reasonable person in her position would have pursued alternatives "such as calcium control and monitoring and radio therapy" before attempting surgery.

The Court finds Plaintiff has raised triable issues of fact on the informed consent claim, precluding summary judgment as a matter of law. Although Plaintiff signed a general consent form, the discrepancies in testimony between Dr. Kuo and Plaintiff present issues of fact and credibility regarding whether the risk of laryngeal nerve injury and permanent vocal cord changes were conveyed to her before the procedure, as well as whether any specific alternatives to surgery were discussed. The parties' experts also offer conflicting opinions on whether a "reasonably prudent" person in Plaintiff's position would have undergone the procedure if fully informed of the risks, which is generally an issue for a jury to decide.

Proximate causation is also a necessary element of a lack of informed consent claim, which is "construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury" (Figueroa-Burgos v Bieniewicz, at 811-812, quoting Trabal v Queens Surgi-Ctr., 8 AD3d 555 [2d Dept 2004]). For the reasons already addressed, there remain issues of fact that Plaintiff's claimed injuries including vocal cord paralysis were proximately caused by the procedure.

As there are issues of fact and credibility as to all three elements of Plaintiff's informed consent claim, which must be resolved by a jury, summary judgment on that claim must be denied.

Accordingly, it is hereby:

ORDERED that the part of the motion (Seq. No. 1) seeking dismissal of any claims related to pre-operative treatment (other than obtaining informed consent), post-operative treatment, dysphagia, infection, or claims based on CPLR 1601, is granted without opposition; and it is further

ORDERED that the motion (Seq. No. 1) seeking summary judgment in favor of Dr. Kuo, Dr. Coons, NYPH, and Columbia is otherwise denied.

This constitutes the decision and order of this Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.

FOOTNOTES

1.   The additional party defendants named in the Complaint as "The University Hospital of Columbia and Cornell," "Weil Cornell Medicine," and "Columbia University Irving Medical Center" refer to the same institution and have not individually appeared in this action.

Consuelo Mallafre Melendez, J.