SHAMARA DECANDIDO MICHAEL DECANDIDO v. WHITE PLAINS HOSPITAL MEDICAL CENTER DIANE AINSWORTH WESTMED MEDICAL GROUP KELLY JARRETT URGENT CARE PHYSICIAN OF NEW YORK HARSDALE PLLC AFC HARTSDALE (2026)

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

NYSCEF #s: Seq. 1: 35-52, 92-95, 100

Seq. 2: 53-86, 96-99, 101

Defendants Peter Ackerman, M.D., sued herein as Peter Ackerman ("Dr. Ackerman"), and White Plains Hospital Medical Center ("WPMC") move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's Complaint against them (Seq. No. 1).

Defendants Diane Ainsworth, M.D., sued herein as Diane Ainsworth ("Dr. Ainsworth") and Westmed Medical Group ("Westmed") separately move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's Complaint against them (Seq. No. 2).

Plaintiff opposes both motions.

Plaintiff commenced this action on April 11, 2023, asserting claims of medical malpractice and lack of informed consent on behalf of Decedent's estate The claims arise from an alleged failure to timely diagnose and treat Decedent for elevated glucose and diabetes during an emergency department visit with Dr. Ackerman on January 29, 2022 and a scheduled ob/gyn appointment with Dr. Ainsworth on February 1, 2022.¹ Plaintiff further alleges that these departures from the standard of care proximately caused Decedent's death from diabetic ketoacidosis. Decedent's spouse also asserts claims for loss of consortium.

Decedent was 48 years old at the time of the events at issue. According to prior medical records, she was previously diagnosed with type 2 diabetes by a primary care physician in 2019, but she was no longer seeing that physician or taking diabetes medications. She had been a patient of ob/gyn Dr. Ainsworth since 2021.

Decedent presented to the WPMC emergency department on the evening of January 29, 2022 with a primary complaint of vaginal bleeding for the past two weeks. She was treated by attending physician Dr. Ackerman, who ordered an ultrasound and basic metabolic panel. The blood test results revealed elevated glucose levels of 250 mg/dL, which was flagged as high ("H") in the WPMC records. The blood test also showed low hemoglobin of 11.0 (11.8-15.3 normal) and hematocrit within normal range at 35.5 (35.0-45.0 normal).

In his assessment and plan in the medical chart, Dr. Ackerman wrote that he "discussed with patient that depending on how she is feeling she could consider going home at this time versus staying the ER for another hour to recheck a repeat hemoglobin." He also noted that she had an upcoming appointment with her ob/gyn and that he "stressed the importance of this follow-up."

Decedent was discharged from WPMC shortly after midnight on January 30, 2022 with an After Visit Summary and discharge instructions, including a copy of her test results. The diagnosis read "abnormal uterine bleeding," and instructed Decedent to "follow up with your ob/gyn this week at your scheduled appointment" and return to the emergency department if she experienced persistent bleeding, dizziness, chest pain, shortness of breath, or other symptoms.

On February 1, 2022, Decedent saw Dr. Ainsworth at Westmed for a preexisting gynecological appointment to address her uterine bleeding. At this visit, Dr. Ainsworth noted that Decedent had recently been to the ER, and Dr. Ainsworth's notes referenced her ultrasound and "HCT [hematocrit] normal." Dr. Ainsworth performed an endometrial biopsy and scheduled her for a mammogram screening.

Decedent later presented to non-moving co-defendants Dr. Jarrett and Urgent Care on March 13, 2022 with symptoms including nausea, swollen lymph nodes, and thirst/dehydration. She was found unresponsive by her husband and passed away on March 15, 2022. An autopsy determined her cause of death was diabetic ketoacidosis, with glucose level of 1158 mg/dL.

Plaintiff alleges that emergency department physician Dr. Ackerman and ob/gyn Dr. Ainsworth failed to appreciate Decedent's elevated glucose levels and refer her for further diagnosis and treatment. Plaintiff further alleges that this deviation from the standard of care was a proximate cause or substantial contributing factor in her untreated diabetes and death from ketoacidosis in March 2022.

"Medical malpractice actions require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation was a proximate cause of the plaintiff's injuries. On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries." (Graham-Guerrier v Tercel, 245 AD3d 898, 899-900 [2d Dept 2026] [internal quotation marks and citations omitted].)

"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" (Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024]). "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" (Graham-Guerrier at 900, quoting Stewart v N. Shore Univ. Hosp. at Syosset, 204 AD3d 858, 860 [2d Dept 2022]). "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, WPMC and Dr. Ackerman submit an expert affirmation from Mark Silberman, M.D. ("Dr. Silverman"), a licensed physician board certified in internal medicine and emergency medicine.

Dr. Silberman opines that Dr. Ackerman's treatment and care on January 29-30, 2022 complied with the standard of care for an emergency department attending physician. He opines that Dr. Ackerman ordered appropriate testing, including a pelvic ultrasound and complete metabolic panel, for her primary complaint of persistent vaginal bleeding.

The expert opines that the standard of care for an emergency department physician is to "evaluate and treat the acute presenting problem that led the patient to seek emergency care," and that when non-acute issues such as abnormal laboratory results are discovered, the standard of care is to "inform the patient of those findings and advise her regarding appropriate outpatient follow up, even though such discussions are not always specifically documented when the documentation is focused on the acute presenting issue." The expert states the Dr. Ackerman "discussed abnormal findings with the patient," including her elevated glucose level and the fact it "may be related to diabetes or dietary factors," based on his deposition testimony. Dr. Ackerman testified that although he had no independent recollection of Decedent's visit, his usual practice was to inform patients of any abnormal findings on their lab results.

Dr. Silberman also opines that the patient was appropriately notified of her elevated glucose because the results were included with her discharge papers. Dr. Silberman opines that the standard of care in these circumstances is to "advise the patient that outpatient follow up is warranted," because diabetes cannot be diagnosed based on a one-time glucose value and requires repeat or fasting measurements.

The expert further opines that Decedent's "modestly elevated glucose level" was an incidental finding not related to her "acute presenting issue" of vaginal bleeding, and that Dr. Ackerman did not depart from the standard of care by failing to mention it in the treatment record. In the expert's opinion, it was not the standard of care for Dr. Ackerman to conduct further testing, admit the patient to the hospital, order an endocrinology consultation based on the isolated 250 mg/dL value.

The expert also opines that Dr. Ackerman properly obtained and documented the patient's history, and he was unaware she had any prior diagnosis of diabetes because she did not report it to him.

On the issue of proximate causation, Dr. Silberman opines that no alleged departure from the standard of care by Dr. Ackerman was a substantial factor in Decedent's development of diabetic ketoacidosis or her death. The expert states that Decedent never reported her elevated glucose results to a primary care provider or to Dr. Ainsworth, although she had "a copy of her laboratory results and instructions for outpatient follow up."

The expert notes that based on her prior medical records, Plaintiff had been prescribed diabetes medications (Ozempic and Metformin) for a "limited period" in April 2019, but she stopped refilling both medications by September 2019. The expert also states that according to the testimony of Decedent's husband, she had never informed him about her previous diabetes diagnosis and she was not taking medications to control it. Based on these prior records and the spouse's testimony, the expert opines that she had already been advised she had diabetes "more than two years" before the events at issue and suggests that she ignored previous medical advice to treat it with medication.

The expert further opines that diabetic ketoacidosis is a condition which develops "over a relatively acute time frame, most often hours to days," rather than progressively over weeks. Therefore, the expert opines Decedent would not have exhibited signs or symptoms of this medical emergency when she presented to WPMC six weeks before her death. He opines that there were intervening causes of her death, including other medical providers who treated her after the January 29-30, 2022 emergency department visit.

Based on evaluation of these submissions, the Court finds that Dr. Ackerman has not established prima facie entitlement to summary judgment.

First, the expert opines that the glucose finding was incidental and did not require emergent treatment. However, on the key issue of whether Decedent was advised by Dr. Ackerman of her elevated glucose value on January 29-30, the expert states that the standard of care required Dr. Ackerman to inform her of the abnormal finding and advise her to seek outpatient evaluation and treatment. The expert then opines that Dr. Ackerman complied with this standard of care, citing his deposition testimony that his usual custom and practice would be to inform a patient of such findings and advise her to follow up with her primary care physician. This opinion, that Dr. Ackerman complied with the standard of care, is completely based on the assumption that the physician actually gave such information and recommendation to the decedent, but there is no evidence of this.

The expert also opines that the patient was advised of her abnormal glucose because she was provided with the printed lab results, discharge instructions, and After Visit Summary. Although there is evidence Decedent was provided with her printed lab results, which included "GLU 250 ^" there was no other mention of elevated glucose or its significance in the After Visit Summary. The discharge instructions, which were distinct from Dr. Ackerman's own notes of his assessment and treatment, reflect only that she was told to follow up with her ob/gyn, and therefore do not support the expert's statements that she was advised of "the need for outpatient follow up, including follow up with a primary care provider" on her abnormal lab findings.

Despite the expert's opinions that Dr. Ackerman would have discussed the elevated findings with decedent based on lab notations on the discharge and on Dr Ackerman's testimony regarding his custom and practice, there is no contemporaneous evidence that Dr. Ackerman discussed her glucose levels in the emergency department records. Further, Plaintiff (Decedent's spouse) controverts this opinion testifying that "the only conversation was to follow up with a gyn doctor, the ob/gyn." The expert's opinions that Dr. Ackerman appreciated the glucose results are therefore conclusory, speculative, and based on disputed facts in the record.

On the issue of proximate causation, the movant argues that Decedent's subsequent treatment by other providers represented an intervening cause which broke the causal link between Dr. Ackerman's conduct and her development of diabetic ketoacidosis and death. Generally, an intervening act must be "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, that it may possibly break the causal nexus" (Romanelli v Jones, 179 AD3d 851, 856 [2d Dept 2020], quoting Hain v Jamison, 28 NY3d 524 [2016]). The movant has not eliminated issues of fact that her development of diabetic ketoacidosis and death were extraordinary and not foreseeable at the time of her treatment at by Dr. Ackerman. Further, the fact Decedent received subsequent treatment from other non-parties and defendants does not "absolve [moving] defendant from liability, because there may be more than one proximate cause of an injury" (Mazella v Beals, 27 NY3d 694, 706 [2016] [internal quotation marks and citation omitted]).

The movant also argues that Decedent bears responsibility for her untreated diabetes complications because she had previously been noncompliant in taking prescribed medications, and she did not inform her providers of her history of diabetes, including Dr. Ackerman. However, because there remain issues of fact and credibility as to what information was conveyed to Decedent about her elevated glucose on January 29-30, the movant cannot establish as a matter of law that Decedent ignored medical advice to follow up with her gynecologist and/or primary care physician. The expert's opinions are speculative as to whether Decedent would have acted on Dr. Ackerman's advice to follow up on her elevated glucose based on her previous medical history. "Whether the decedent would have heeded appropriate warnings . . . is for the jury to decide" (see Romanelli at 856). The comparative fault and contributory negligence of Decedent, if any, is an issue of fact for trial.

For these reasons, the Court finds the movants Dr. Ackerman and WPMC have not met their prima facie burden of establishing entitlement to summary judgment as a matter of law, regardless of the sufficiency of the movant's papers.

Notwithstanding the above, Plaintiff submits an expert affirmation in opposition from a licensed physician (name of expert redacted), board certified in emergency medicine. A signed, unredacted copy of the expert affirmation was provided to the Court for in camera inspection.

Plaintiff's emergency medicine expert opines that Dr. Ackerman departed from the standard of care by failing to inform Decedent of her elevated glucose level of 250 mg/dL and failing to recommend a follow-up with her primary care physician or an endocrinologist within 1-2 weeks.

The expert notes that Dr. Ackerman's progress notes mentioned her ultrasound results and hemoglobin levels, but not the elevated glucose. In contrast to the movant's expert, who opined that the "modestly" elevated glucose was an incidental finding and did not warrant explicit mention in Dr. Ackerman's notes, Plaintiff's expert opines that it was an "alarming finding" which warranted clear follow-up instructions for outpatient evaluation and treatment.

The expert notes that Decedent's physical examination showed a BMI (body mass index) of 37.37, which Plaintiff's expert opines indicated obesity and was a significant risk factor for type 2 diabetes. The expert opines that her glucose level of 250 mg/dL was significantly high (normal 74-106 mg/dL) and indicated "not only that she likely had diabetes, but was at serious risk of sustaining diabetic ketoacidosis." For this reason, even if she did not report a history of diabetes of Dr. Ackerman, Plaintiff's expert opines that the standard of care required Dr. Ackerman to consider her elevated glucose in his verbal communication, assessment and plan, and written discharge instructions. Specifically, Plaintiff's expert opines that he should have recommended she follow up on the glucose results with her primary care physician or an endocrinologist within 1-2 weeks.

Plaintiff also submits an expert affirmation from a licensed physician (name of expert redacted), board certified in internal medicine and endocrinology. A signed, unredacted copy of the expert affirmation was provided to the Court for in camera inspection.

Plaintiff's endocrinology expert opines primarily on the issue of proximate causation. They state that diabetic ketoacidosis is a life-threatening condition caused by uncontrolled glucose, which "causes acidic ketones to develop in the blood and poison the patient." They further opine that untreated hyperglycemia in a diabetic patient can further lower their residual release of insulin from the pancreas, progressing rapidly to a fatal condition.

The expert further opines that when type 2 diabetes is timely diagnosed, typically following elevated glucose values (above 125 mg/dL) and A1C test, it can be "effectively treated" with medications that control blood sugar such as Metformin and Ozempic, which "can begin to lower glucose levels within weeks." Therefore, the expert opines that if Dr. Ackerman had recommended a primary care or endocrinologist follow-up within 1-2 weeks of her January 29-30 visit, she would have been more likely to receive a diagnosis and treatment/medical management for type 2 diabetes, which would have "stabilized or reduced her glucose levels in time to prevent her death."

Although the Court finds Dr. Ackerman and WPMC did not establish prima facie entitlement to summary judgment, even if they had, Plaintiff's expert submissions have sufficiently raised issues of fact as to the standard of care in informing Decedent of her abnormal glucose results and expressly recommending a glucose follow-up with a primary care physician or endocrinologist within 2 weeks. The experts also offer conflicting opinions on the severity of her glucose elevation and whether it should have been documented in her chart and discharge instructions.

Plaintiff's expert also raises issues of fact on proximate causation, sufficient to preclude summary judgment even if the movants had met their prima facie burden on this element. A plaintiff's showing on proximate causation "may be deemed legally sufficient . . . as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased [her] injury" (Starre v Dean, 229 AD3d 728 [2d Dept 2024], quoting Neyman v Doshi Diagnostic Imaging Services, P.C., 153 AD3d 538, 545 [2d Dept 2017]). There is at least a triable issue of fact that Dr. Ackerman's alleged failure to recommend outpatient follow-up for her abnormal glucose levels deprived her of a better chance of earlier diagnosis and intervention, and therefore may be a proximate cause of her diabetes complications and death six weeks later.

For these reasons, Dr. Ackerman's motion for summary judgment on the medical malpractice claims must be denied. Summary judgment is also denied to WPMC as to their vicarious liability claims for Dr. Ackerman.

However, Plaintiff does not raise any issue of fact as to their separate cause of action for lack of informed consent against Dr. Ackerman and WPMC. As the movants argue in their supporting papers, a plaintiff asserting a claim for lack of informed consent must allege that there was some "affirmative violation of physical integrity" (S.W. v. Catskill Regional Med. Ctr., 211 AD3d 890, 891 [2d Dept. 2022]; Public Health Law § 2805-d [2]). It is well established that where a plaintiff's claims arise from an alleged failure to diagnose or treat a condition at all, rather than an affirmative procedure or treatment, this cause of action is not applicable. The motion of Dr. Ackerman and WPMC (Seq. No. 1) is therefore granted to the extent of dismissing the lack of informed consent claims, and the motion is otherwise denied.

Turning to the motion of Dr. Ainsworth and Westmed (Seq. No. 2), the movants submit an expert affirmation from Joseph A. Chappelle, M.D. ("Dr. Chappelle"), a licensed physician board certified in obstetrics and gynecology.

The expert opines that Dr. Ainsworth fully complied with the standard of care for a gynecologist when she evaluated and treated Decedent on February 1, 2022. He notes that on that date, Decedent presented to Dr. Ainsworth at Westmed for a preexisting gynecological appointment and transvaginal endometrial biopsy. The expert stresses that this was a "focused gynecologic visit" to address the patient's abnormal vaginal/uterine bleeding, which was unrelated to her glucose levels or diabetes. The expert opines that Dr. Ainsworth performed appropriate exam to rule out "cancer or other irregularities," prescribed medications to treat irregular and heavy bleeding, and scheduled a three-month follow up. The expert opines that Decedent had no further symptoms on this visit to warrant additional A1C testing or bloodwork. In the expert's opinion, the scope of Dr. Ainsworth's treatment was limited to addressing her vaginal bleeding, rather than a routine annual examination.

The expert opines that although Dr. Ainsworth was aware Decedent had recently been to the ER, "the standard of care did not require Dr. Ainsworth to review the patient's records" from WPMC in their entirety. It is the movants' position that Dr. Ainsworth never accessed or reviewed Decedent's laboratory results, and that she was not required to by the applicable standard of care. Further, the expert opines that even if Dr. Ainsworth did see her chart, the only "relevant" results were her hemoglobin and hematocrit levels to assess whether she was anemic. The expert opines that there was "no reason for Dr. Ainsworth to check the patient's glucose level" because she had no reported history of diabetes, and her glucose level "would not have played any role" in Dr. Ainsworth's recommendation or performance of the transvaginal endometrial biopsy, which was the focus of the appointment.

The movants' expert further opines that "if a gynecologist was concerned about a patient possibly having diabetes during an office visit, then the standard of care is for a gynecologist to refer the patient to an internal medicine physician or endocrinologist for further testing, evaluation or treatment." However, the expert opines that based on the record, Dr. Ainsworth had "no reason . . . to suspect that this patient had diabetes," as Decedent never disclosed that she was diagnosed in 2019, she had no clinical symptoms of hyperglycemia, and her glucose level was "reported in a separate laboratory test" that Dr. Ainsworth did not access and/or review.

On the issue of proximate causation, the expert opines that Decedent had no clinical signs or symptoms of diabetic ketoacidosis at the time she was treated by Dr. Ainsworth on February 1, 2022. The expert opines that this acute condition developed and rapidly progressed weeks later, and it was not causally related to any act or omission of Dr. Ainsworth.

The Court notes that there are discrepancies and issues of fact in the record as to whether Dr. Ainsworth was given Decedent's lab results from WPMC during the February 1, 2022 appointment. Dr. Ainsworth testified that she had no independent recollection of viewing the patient's blood panel results or discharge papers, and the movants argue that she did not access the WPMC chart electronically. However, she did reference the patient's "normal hematocrit" in her notes, suggesting she did review the patient's complete blood count results, and testified that she would not normally rely on a patient to verbally communicate this information because "hematocrit is a medical term." Contrary to the statements from the movants' expert, these results were on the same page as her basic metabolic panel and glucose value. Thus, the expert's opinion that Dr. Ainsworth had no knowledge of Decedent's elevated glucose is controverted by facts in the record.

Notwithstanding, the expert offers an opinion that even if Dr. Ainsworth had access to the WPMC records, the standard of care for a gynecologist did not require her to fully review and address the patient's metabolic blood panel findings in the context of a "focused visit' to perform an endometrial biopsy.

The expert further opines that it was not required by the standard of care, based on the patient's reported history and clinical presentation, for Dr. Ainsworth to perform any further testing or refer her to an internal medicine physician or endocrinologist on February 1, 2022. Additionally, the expert opines that her development of diabetic ketoacidosis several weeks later was not caused by any deviation from the standard of care by Dr. Ainsworth.

Based on these expert submissions, the Court finds Dr. Ainsworth and Westmed have sufficiently established prima facie entitlement to summary judgment. Their ob/gyn expert opines that Dr. Ainsworth complied with the applicable standard of care for the nature of the appointment and her medical history. The burden therefore shifts to Plaintiff to raise a triable issue of fact.

In opposition, Plaintiff submits an expert affirmation from a licensed physician (name of expert redacted), board certified in obstetrics and gynecology. A signed, unredacted copy of the expert affirmation was provided to the Court for in camera inspection.

Plaintiff's expert opines that Dr. Ainsworth departed from good and accepted medical practice by failing to review her blood labs and elevated glucose levels from the emergency department visit, failing to inform her of the abnormal 250 mg/dL glucose level, and failing to order or refer her for a hemoglobin A1C test or refer her to treatment for diabetes.

Plaintiff's expert notes that there is evidence Dr. Ainsworth was provided with the patient's lab results, as indicated by her "HCT normal" note. Countering the movants' expert, Plaintiff's expert opines that good and accepted practice required Dr. Ainsworth to review Decedent's available blood panel results and recognize that her abnormally high glucose level of 250 mg/dL required further evaluation and treatment.

Plaintiff's expert also opines that the standard of care, in light of her elevated glucose, required Dr. Ainsworth to order or refer Decedent for a hemoglobin A1C blood test, and/or to instruct Decedent to follow up with a primary care physician or endocrinologist about her elevated glucose within 1-2 weeks. The expert opines that A1C is a "basic" diagnostic test for diabetes, which may be performed by a gynecologist and which Dr. Ainsworth had previously ordered for Decedent in her May 25, 2021 annual examination.

Plaintiff's expert opines that while Dr. Ainsworth treated Decedent as an ob/gyn specialist, such physicians are authorized and encouraged to "counsel their patients about obesity and lifestyle related health conditions, including screening for diabetes" where appropriate. The expert opines that when a patient presents with risk factors or symptoms suggestive of diabetes, "the standard of care requires that the obstetrician-gynecologist explain the implications of these findings — namely, that diabetes is a serious condition that may be fatal if untreated — and refer the patient for additional testing and treatment with a primary care physician or endocrinologist."

Plaintiff also submits their aforementioned expert affirmation from an endocrinologist. In reply, the movants argue that this expert has not laid a proper foundation to reliably opine on the standard of care for Dr. Ainsworth (see Noble v Kingsbrook Jewish Med. Ctr., 168 AD3d 1077, 1079-1080 [2d Dept 2019]). The Court agrees that the endocrinology expert has not established any background or training to opine on the applicable standard of care for a gynecologist. However, they have laid a proper foundation to opine on proximate causation, as to the alleged deprivation of a better outcome in managing the patient's diabetes and preventing diabetic ketoacidosis. As discussed above, the endocrinology expert sets forth detailed opinions that Decedent's type 2 diabetes could have been timely treated with medication and her blood sugar levels reduced if she had been referred to a primary care physician or endocrinologist in February 2022.

Based on evaluation of the parties' submissions, the Court finds there are clear issues of fact precluding summary judgment in favor of Dr. Ainsworth. It remains a factual dispute between the parties whether Dr. Ainsworth actually accessed or viewed Decedent's complete lab results and her elevated glucose findings. The experts also offer conflicting opinions as to whether the standard of care required her to review and/or appreciate these findings under the circumstances.

Although Dr. Ainsworth's February 1, 2022 appointment was primarily focused on Decedent's abnormal bleeding and biopsy, the Court notes that she also referred the patient for a mammogram screening during the visit and noted that she was "overdue" for a pap smear. Notably, both the Plaintiff and Dr. Ainsworth's ob/gyn experts opine that it is the standard of care for a gynecologist to refer a potentially diabetic patient to a primary care physician or endocrinologist. The experts offer conflicting opinions as to whether such referral was warranted in this case, which must be resolved by a jury.

As previously discussed, Plaintiff's endocrinology expert also raises a triable issue of fact as to causation, and whether the alleged failure to advise, recommend, or refer Decedent for further evaluation and treatment was a proximate cause of her untreated diabetes complications, leading to diabetic ketoacidosis and death. The fact that Decedent had been previously noncompliant with medications and never informed Dr. Ainsworth of her prior diagnosis are issues which must be considered by a jury in determining Decedent's comparative negligence, if any, rather than evaluated by the Court as a matter of law.

In sum, Plaintiff has raised triable issues of fact as to the medical malpractice claims against Dr. Ainsworth, and therefore summary judgment is denied as to the direct claims against her and the vicarious liability claims against Westmed on her behalf.

On the separate cause of action for lack of informed consent, Dr. Ainsworth establishes prima facie, through the medical records and expert affirmation, that she properly informed Decedent of the risks, benefits, and alternatives of the endometrial biopsy procedure on February 1, 2022, and obtained Decedent's consent. The expert also establishes that this procedure was unrelated to diabetes, hyperglycemia, or ketoacidosis, and it was not a proximate cause of Plaintiff's claimed injuries or death. (See Pirri-Logan v Pearl, 192 AD3d 1149, 1151 [2d Dept 2021].)

Plaintiff raises no issues of fact as to Dr. Ainsworth's biopsy procedure or any other affirmative treatment or "violation of physical integrity" (Public Health Law § 2805-d [2]). Instead, Plaintiff's expert opines that Dr. Ainsworth failed to provide "informed consent" by not advising Decedent of her glucose level, stating that if a "reasonable person" had been so informed, she would have undergone additional tests and follow-up. This position does not conform with the essentials of a lack of informed consent claim. The elements of that cause of action include that "a reasonably prudent person in the patient's position would not have undergone the treatment or diagnosis if he had been fully informed" (Ellis v Eng, 70 AD3d 887, 892 [2d Dept 2010]). "Lack of informed consent does not apply where, as here, injuries allegedly resulted from the failure to undertake a procedure or a postponing of a procedure" (id.; see also S.W. at 891).

Accordingly, Dr. Ainsworth and Westmed's motion for summary judgment (Seq. No. 2) is granted to the extent of dismissing the cause of action for lack of informed consent, and the motion is otherwise denied.

As there are issues of fact on the underlying medical malpractice claims which must be resolved by a jury, all Defendants' motions are denied with respect to Plaintiff spouse's derivative claims for loss of services and consortium (see Weiss v Vacca, 219 AD3d 1375, 1378 [2d Dept 2023]; Powell v Prego, 59 AD3d 417, 418 [2d Dept 2009]).

It is hereby:

ORDERED that Defendants Dr. Ackerman and White Plains Hospital Medical Center's motion (Seq. No. 1) for summary judgment is granted to the extent of dismissing the claims for lack of informed consent, and the motion is otherwise denied; and it is further

ORDERED that Defendants Dr. Ainsworth and Westmed Medical Group's motion (Seq. No. 2) for summary judgment is granted to the extent of dismissing the claims for lack of informed consent, and the motion is otherwise denied.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez, J.S.C.

FOOTNOTES

1.   Plaintiff also asserts claims against Kelly Jarrett and Urgent Care Physician of New York-Hartsdale PLLC d/b/a AFC Hartsdale, who have not moved for summary judgment.

Consuelo Mallafre Melendez, J.