DIANE HAMLIN v. JOSHUA ROSENBERG TYAN YUN JAIME YUN MOSSAMMAT MANSUR MAYHAR MAHMOUDI GLORIA RAPOPORT AMY YEH THE BROOKLYN HOSPITAL CENTER (2026)

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

NYSCEF #s: 176-206, 211-226, 228-230

Defendants Jose E. Orsini, M.D. ("Dr. Orsini"), Joshua Rosenberg, M.D. ("Dr. Rosenberg"), Mayhar Mahmoudi, M.D. ("Dr. Mahmoudi"), Mossammat Mansur, M.D. ("Dr. Mansur"), Gloria Rapoport, M.D. ("Dr. Rapoport"), Amy Yeh, D.O. ("Dr. Yeh"), and The Brooklyn Hospital Center, move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's Complaint against them (Seq. No. 3).

Plaintiff opposes the motion as to defendants Dr. Orsini, Dr. Rosenberg, Dr. Rapoport, Dr. Yeh, and The Brooklyn Hospital Center.

Plaintiff does not oppose the part of the motion seeking summary judgment in favor of Dr. Mahmoudi and Dr. Mansur, and the parties have executed a stipulation of discontinuance against said defendants which was so-ordered on June 16, 2026. Plaintiff also does not oppose the part of the motion seeking to dismiss any vicarious liability claims against The Brooklyn Hospital Center on behalf of Dr. Yun, who was previously discontinued from this action  ¹ .

Accordingly, the part of the motion seeking summary judgment on behalf of Dr. Mahmoudi and Dr. Mansur is granted without opposition, and any vicarious liability claims against The Brooklyn Hospital Center on behalf of Dr. Mahmoudi, Dr. Mansur, and Dr. Yun are dismissed.

Plaintiff commenced this action on June 23, 2021, asserting claims of medical malpractice and wrongful death in connection with an injury to the esophagus and mediastinum during Decedent's emergent intubation on June 10, 2019.

Decedent was 65 years old at the time of the events at issue. On June 10, 2019, she presented to The Brooklyn Hospital Center emergency department by ambulance at approximately 7:57 p.m., in respiratory distress from asthma exacerbation. She went into cardiac arrest after her arrival and was resuscitated.

Beginning at approximately 8:45 p.m., Decedent was intubated by three nonparty hospital residents under the direction and supervision of Defendant Dr. Yeh, the attending physician. Her right chest tube was placed by nonparty resident Andrew Brill, M.D. ("Dr. Brill"). Two chest x-rays were performed at 9:15 p.m. and 9:50 p.m. The findings, co-signed by attending physician Dr. Yeh, documented "chest tube in correct position" and "bilateral chest tubes were unchanged," respectively.

Defendant Dr. Orsini was the attending physician who evaluated and treated Decedent when she was admitted to the ICU the same evening, at approximately 10:14 p.m. He ordered a chest CT scan and other diagnostic tests.

A third x-ray at 10:44 p.m. documented "there has been interval repositioning of right-sided chest tube." A note from June 11, 2019 cosigned by Dr. Yun indicated that "ED pulled the right chest tube back" at an unknown time after recognizing the tube was "deep and encroaching the mediastinum" (space around the heart).

Defendant Dr. Rapoport was the radiologist who interpreted and reported a chest CT scan on June 11 at 3:00 a.m. She noted that "there is a right-sided chest tube within the soft tissues [of] the right lateral chest wall," an "extensive amount of subcutaneous air," and "pneumomediastinum" among other findings. The left chest tube was also found to be out of place within the lung parenchyma.

Defendant Dr. Rosenberg, another ICU attending physician, treated Decedent beginning on June 11, 2019. He noted the right chest tube was not properly placed based on the radiological imaging, and that the left chest tube was passing through the lung parenchyma. He requested a cardiothoracic surgery consult. The right chest tube was removed at some time before a nursing note on June 11, 2019 at 11:00 a.m. ("right chest tube removed by surgical doctor") but the exact time was not documented. The left chest tube was also removed, and a new chest tube was reinserted.

Decedent was deemed stable for extubation and transfer to the medical floor on June 13, 2019. However, she subsequently had a fever spike, increased heart rate and blood pressure, and elevated white blood cell count, and she exhibited shortness of breath and other symptoms. Decedent was returned to the ICU on June 16 with sepsis secondary to pneumonia, as well as a worsening pneumothorax and pneumomediastinum seen on a chest CT scan. She was intubated a second time by nonparty Dr. Cajuste, who noted an existing "tear in the posterior walls of pre-epiglottic space prior to the cords."

Plaintiff was ultimately transferred from The Brooklyn Hospital Center to nonparty Montefiore Hospital for further care and surgical repair of an esophageal perforation on June 19, 2019. She was subsequently treated at other hospitals and nursing facilities until she passed away on February 16, 2020.

Plaintiff alleges that The Brooklyn Hospital Center's physicians and staff, including nonparty employee Dr. Brill and co-defendants Dr. Orsini, Dr. Rosenberg, Dr. Rapoport, and Dr. Yeh, departed from good and accepted medical practice in treating Decedent. Specifically, Plaintiff alleges that resident Dr. Brill improperly performed the emergent intubation, and emergency department attending physician Dr. Yeh failed to timely recognize and correct the misplaced right chest tube. Plaintiff also alleges that the ICU attending physicians Dr. Orsini and Dr. Rosenberg failed to properly monitor and treat her for complications in light of the injury, and radiologist Dr. Rapoport failed to properly read and report the June 11, 2019 chest CT scan. Plaintiff alleges that all these departures proximately caused or contributed to Decedent's claimed injuries including esophageal perforation, mediastinitis (infection in the mediastinum), sepsis, and her eventual death.

"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 as to Dr. Yeh, Defendants submit an expert affirmation from Christopher C. Raio, M.D. ("Dr. Raio"), a licensed physician board certified in emergency medicine.

Dr. Raio opines that the emergency department attending physician Dr. Yeh complied at all times with the standard of care on June 10, 2019. The expert notes that Dr. Yeh directly supervised the emergent intubation after Decedent went into respiratory distress and cardiac arrest. Resident Dr. Yatin Riat began the intubation, a left chest tube was inserted by resident Dr. Stephen Simon, and the right chest tube was inserted by resident Dr. Brill. The expert opines that Dr. Yeh followed the standard of care of listening to the lungs "to make sure they are heard equally and bilaterally," and an x-ray was taken to "ensure the tube was placed properly and not in the esophagus."

The expert states that it was "soon determined that both chest tubes had been incorrectly placed," because "following insertion of the chest tubes, a second chest film was done" which "indicated that the right-side chest tube was not properly in the lung, but in the subcutaneous tissue." The expert opines that these misplacements were timely recognized and corrected, and the right chest tube was removed on June 11. He also notes that "the hole in the esophagus may have been very small" and initially not visible on chest x-rays or CT scan, and therefore the fact the tear was not immediately recognized did not constitute a departure from the standard of care.

Dr. Raio further opines that due to her critical condition, Decedent "absolutely needed to be intubated in the emergency department," and although "the esophageal tear was caused during the intubation . . . such an injury is a known possible complication of an emergency intubation," although it is a "very rare occurrence." He therefore opines that no departure from the standard of care by Dr. Yeh was a proximate cause of the perforation.

Additionally, Dr. Raio opines that Decedent was "gravely ill upon her admission" to the hospital and went into cardiac arrest. He thus opines that no care and treatment by defendant Dr. Yeh was a proximate cause of her eventual death, which he states was the result of "multiple serious comorbidities."

Based on evaluation of the submissions, the Court finds the movants' expert has sufficiently established prima facie entitlement to summary judgment in favor of Dr. Yeh. The expert opines that Dr. Yeh properly supervised the emergent intubation and timely reviewed x-rays to assess the placement of the chest tubes. The expert further opines that the misplacement was timely recognized and corrected, and that the perforation itself was initially not visible on the radiological images.

Additionally, the expert opines that the type of injury sustained by Decedent is a known potential risk of emergency intubation, though rare, and occurred despite appropriate and necessary performance of the procedure. The expert further opines that Decedent's subsequent clinical deterioration and death were not proximately caused by any acts or omissions of Dr. Yeh on June 10, 2019. The Court finds these submissions sufficiently meet their prima facie burden on the standard of care and proximate causation as to Dr. Yeh, and the burden shifts to Plaintiff to raise an issue of fact.

In opposition, Plaintiff submits an expert affirmation from a licensed physician (name of expert redacted), board certified in emergency medicine. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection.

Plaintiff's emergency medicine expert opines that Dr. Yeh departed from the standard of care in supervising the resident Dr. Brill's placement of the right chest tube on June 10, 2019. The expert opines that based on the initial chest x-ray at 9:15 p.m. and the second x-ray at 9:50 p.m., the chest tube was incorrectly placed and "abutted the location of the esophagus." The expert notes that according to Dr. Yeh's own testimony, post-procedure x-rays are generally read by the emergency department attendings and are available within 5-10 minutes. The expert opines that Dr. Yeh's supervisory role in the procedure was "even more pronounced" because the 4th-year resident Dr. Brill had performed less than 20 of such procedures and required "direct immediate supervision" according to the standard of care and the hospital's own protocols.

Plaintiff's expert opines that as attending physician, Dr. Yeh had a responsibility to "review the post procedure films which would have immediately shown the chest tube incorrectly in the location of the esophagus." However, the procedure note cosigned by Dr. Yeh erroneously stated "chest tube in correct position." The expert opines this was a departure from good and accepted practice by Dr. Yeh, either in failing to review the 9:15 p.m. chest x-ray or misreading it. The expert further opines that Dr. Yeh departed from the standard of care in reviewing or interpreting the second post-procedure chest x-ray at 9:50 p.m. and cosigning the "bilateral chest tubes were unchanged" note. The expert opines this image again showed a misplaced right chest tube, but it was not recognized or documented by the attending physician Dr. Yeh.

Plaintiff's emergency medicine expert further opines that it was a departure from the standard of care to fail to note any repositioning or replacement of the chest tube. A note from the cardiothoracic consult on June 11 at 8:05 a.m. stated "right chest tube was recognized to be deep and encroaching the mediastinum. ED pulled the right chest tube back." However, as Plaintiff's expert notes, there is no procedure note or reference to this movement of the right chest tube or when it occurred. The expert opines that the right chest tube was seemingly repositioned or shifted on its own before the third chest x-ray on June 10 at 10:44 p.m., although it was still in a suboptimal location. The expert opines that Dr. Yeh departed from the standard of care in failing to supervise or document any movement or repositioning of the chest tube, based on these discrepancies in the record.

Additionally, Plaintiff submits an expert affirmation from a licensed physician (name of expert redacted), board certified in diagnostic radiology.

Based on their review of the records and radiological images, Plaintiff's expert opines that Decedent's June 10, 2019 chest x-ray from 9:15 p.m. "shows the right chest tube improperly positioned approximately 5 cm distal to the cricopharynx." The expert further states that the tube was "placed too high and deep and [was] pushing against the esophagus" and "appears kinked at the mediastinum." The expert further opines that the 9:50 p.m. chest x-ray again showed "the right chest tube compromising the esophagus." The expert opines that Dr. Yeh's failure to recognize and mention this mispositioning on the x-ray report constituted a departure from the standard of care.

On proximate causation, the emergency medicine expert opines that the failure to timely recognize and correct the mispositioned right chest tube led to excessive force and pressure on Decedent's esophagus and mediastinal area for approximately 90 minutes. The expert opines that "the improperly placed chest tube remained in contact with and put so much pressure on the outer wall of the esophagus so as to cause injury," which later led to necrosis and "progressed to a complete esophageal perforation."

The expert opines that the June 10 chest x-rays "clearly show the beginnings of the mechanism of the injury to the esophagus due to the anatomically incorrect placement," and the injury was "compounded" by the delay in recognizing and fixing the misplacement.

Plaintiff's emergency expert also opines that this is not an accepted risk or complication of properly performed intubation, and instead that this type of injury would only occur if "the right chest tube was placed too high and pushed with such force that it kinked the rigid tube" and then remained in that position for an extended period of time because "the improper positioning was not recognized" promptly by Dr. Yeh.

Plaintiff also submits an expert affirmation from a licensed physician (name of expert redacted), board certified in surgery and surgical critical care. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection.

The surgical/critical care expert opines that Dr. Yeh, as the supervising physician, failed to recognize the improper placement and "immediately reposition the right chest tube," especially as the placement was performed by a less-experienced resident who required close supervision by the attending physician. The expert opines that Dr. Yeh departed from the standard of care by failing to timely and properly review the 9:15 p.m. chest x-ray, as Dr. Yeh cosigned the procedure note stating "chest tube in correct position." The expert further notes that despite other medical records indicating that there was "internal repositioning of right sided chest tube" at some point on June 10 between the 9:50 p.m. and 10:44 p.m. x-rays, the attending physician Dr. Yeh and other emergency department staff did not document when and how this occurred. They note there are discrepancies in the record as to whether the chest tube was manually replaced "which would have mandated a procedure note," or whether it shifted on its own "due to it not having been properly secured." The expert opines that either of these possibilities would represent a departure from the standard of care.

The expert opines that at the time of the 10:44 p.m. x-ray, the right chest tube remained in an incorrect position but "the mechanical pressure on the esophagus seemed to have finally been relieved" after up to 90 minutes had passed. The expert opines that the delay in repositioning the right chest tube and the further misplacement constituted a departure from the standard of care by attending physician Dr. Yeh.

On proximate causation, Plaintiff's surgical and critical care expert opines that esophageal injury is a "known risk of improper chest tube placement" (emphasis added) which Dr. Yeh failed to timely appreciate and treat. Plaintiff's surgical expert further opines that the misplacement and excessive force of the right chest tube by resident Dr. Brill was a proximate cause of her "injuries, prolonged hospitalization, and eventual death." The expert opines that based on her subsequent medical records from Montefiore Hospital, there was "an esophageal perforation in the area where the right chest tube was incorrectly positioned" and where the tube "remained for approximately 90 minutes."

The expert opines that the initial misplacement of the chest tube and the alleged failure by Dr. Yeh to timely reposition it resulted in the tube pressing against the esophagus, which "ultimately caused an esophageal perforation" that was later diagnosed on June 17, 2019.

The critical care expert further opines that this perforation was a substantial factor in Decedent developing mediastinitis, septic shock, and the overall worsening of her condition which caused or contributed to her death 7-8 months later. The expert states that "there was such force placed on the mediastinum structure and esophagus for a sufficient period of time to set in place the pathology to result in the perforation and resultant mediastinitis." Although the expert acknowledges that she had many comorbidities, they opine that Decedent's "spiraling condition and eventual death" can be causally linked to these injuries.

Based on evaluation of the expert submissions, the Court finds that Plaintiff has raised triable issues of fact as to whether Dr. Yeh, as emergency attending physician, departed from the standard of care, including whether she failed to properly review and interpret the chest x-rays and timely correct the right chest tube misplacement on June 10, 2019.

Plaintiff's emergency and critical care experts also offer conflicting opinions as to proximate causation in sufficient detail to counter the movants' prima facie showing on this issue and raise a triable issue of fact as to whether the alleged chest tube misplacement and delay in treatment was a substantial factor in Decedent's injuries, worsened outcome, and death. While Defendants' emergency medicine expert opines briefly that Decedent was "gravely ill" and had many significant comorbidities which ultimately led to her death, Plaintiff's experts opine that Decedent "never recovered" from the intubation injury, remained dependent on hospital and nursing home care, and had esophageal complications and "cascading injuries" from the infection for the remainder of her life, which were a substantial factor in her death in February 2020. "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]).

For these reasons, the part of the motion seeking summary judgment in favor of Dr. Yeh, and on the vicarious liability claims against The Brooklyn Hospital Center on her behalf, are denied.

With respect to the ICU attending physician Dr. Orsini, Defendants submit an expert affirmation from Ian H. Newmark, M.D. ("Dr. Newmark"), a licensed physician board certified in internal medicine and critical care.

Dr. Newmark opines that Dr. Orsini complied with the standard of care at all times when treating Decedent as the critical care attending physician. Specifically, he opines that Dr. Orsini properly admitted her to the ICU at "level three, priority one, which is the highest level of ICU care" on June 10, 2019 following her intubation in the emergency department, and he was briefly involved in her evaluation and treatment that evening, including ordering a chest CT scan, echocardiogram, and head CT scan. In the early morning of June 11, 2019, the patient's care was transferred to another critical care attending physician, co-defendant Dr. Rosenberg. Dr. Newmark notes that Dr. Orsini was "not involved" in Decedent's care from June 11-16, 2019.

When Dr. Orsini treated Decedent again on June 17, 2019, Dr. Newmark opines that her condition had "already significantly deteriorated" and he properly documented a worsening right pneumothorax, pneumomediastinum, and other complications from reviewing her x-rays and CT scans. The expert notes that Dr. Orsini included mediastinitis and sepsis in his differential diagnosis and ordered a cardiothoracic surgery consult. On June 18, Dr. Orsini documented that she had an esophageal perforation, and she was transferred to Montefiore Medical Center the following day to perform surgical repair of the perforation due to that hospital's ECMO resources. The expert opines that all this treatment complied with the standard of care.

Based on these submissions, the Court finds that the movants have established prima facie entitlement to summary judgment in favor of Dr. Orsini, setting forth expert opinions that he complied with the standard of care in his initial assessment and treatment of Decedent in the ICU on June 10, 2019 and his later treatment from June 17-18, 2019.

In opposition, Plaintiff submits an expert affirmation from a licensed physician (name of expert redacted), board certified in surgery and surgical critical care. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection.

Broadly, Plaintiff's surgical and critical care expert opines that "nothing was done to rule out esophageal or mediastinal injury" following her intubation despite the radiological evidence of the misplaced chest tube encroaching on those structures.

Plaintiff's expert opines that Dr. Orsini departed from good and accepted practice by failing to "be aware of the injury to the esophagus" and timely recognize and treat "the repercussions of the injury" despite evidence of the mispositioned chest tube on the x-rays and CT scan. The expert notes that Dr. Orsini ordered the first chest CT scan with contrast on June 10, which was ultimately performed without contrast and the results returned on June 11 at approximately 3:00 a.m., after the patient's care had been turned over to Dr. Rosenberg.

The next mention of Dr. Orsini is that he evaluated Decedent on June 17, 2019, and noted that her right-sided pneumothorax was "getting worse and the pneumomediastinum was expanding." He ordered a neck and chest CT because he "suspected mediastinitis." Based on the CT results, Plaintiff's expert notes that Dr. Orsini transferred Decedent to Montefiore Hospital because "the esophageal perforation needed to be addressed by a trained cardiothoracic surgeon." Plaintiff's critical care expert does not opine on what further steps Dr. Orsini should have taken in compliance with the standard of care to address Decedent's injuries.

Additionally, Plaintiff's aforementioned emergency medicine expert opines that Dr. Orsini departed from the standard of care by "failing to recognize the injury to the esophagus and mediastinum structure due to the mispositioning of the right chest tube." However, this expert also does not discuss any specific diagnostic tests, treatment, or consults Dr. Orsini should have ordered during his involvement in the patient's treatment on June 10, 2019 or June 17, 2019.

For this reason, the Court finds Plaintiff's experts are conclusory, speculative, and fail to raise a genuine triable issue of fact on any alleged departure from the standard of care by Dr. Orsini. Accordingly, the part of the motion seeking summary judgment in favor of Dr. Orsini is granted, and all direct claims against him and vicarious liability claims against The Brooklyn Hospital Center on his behalf are dismissed.

Turning to the other ICU attending physician Dr. Rosenberg, the movants' critical care expert Dr. Newmark opines that he properly assessed and treated the patient beginning on June 11, 2019. The expert opines that as her white blood cell count improved with serial blood labs, Dr. Rosenberg properly weaned her from antibiotics. The expert opines this was appropriate as she had no evidence of pneumonia on her CT scan, no sign of fever, and her white blood cell count was stabilizing. He further opines that Dr. Rosenberg timely ordered a sepsis workup and infectious disease consult on June 14 when she had a fever spike.

The movants' critical care expert opines that Decedent's "esophageal/tracheal perforation" was "timely diagnosed and appropriately treated." The expert opines that before her sudden onset of shortness of breath and right lower anterior chest wall pain on June 16, her condition had been improving and there was "no reason to suspect" pneumothorax or esophageal/tracheal perforation before that date. Once she started exhibiting symptoms and underwent a chest x-ray showing pneumothorax, the expert opines this condition was "aggressively treated" and she was readmitted to the ICU, intubated, and given appropriate CT scans. The expert also opines that her esophageal perforation and mediastinitis was appropriately treated with antibiotics and she was ultimately transferred to another facility for surgical repair.

On the issue of proximate causation, Dr. Newmark opines that no departure from the standard of care by ICU attending physician Dr. Rosenberg was a proximate cause of Decedent's esophageal perforation or related injuries. The expert notes that the initial intubation was performed in the emergency department by resident Dr. Brill under the supervision of co-defendant Dr. Yeh, and further repositioning and intubations were done by other nonparty physicians. The expert opines that "the esophageal perforation occurred during the emergent intubation performed in the emergency department" on June 10, 2019, as further evidence when she had a second intubation on June 16 which showed a tear in her "pre-epiglottic space prior to the vocal cords" from the prior intubation. The expert further opines that an esophageal perforation is a "known risk of intubation" which is rare but more likely during an emergent intubation, even in the absence of any malpractice.

The expert further opines that Decedent's clinical deterioration and death were "caused by a combination of her severe asthma, COPD, and cardiac arrest" and was "inevitable given her severe condition upon admission."

Based on these submissions, the Court finds the movants have established prima facie entitlement to summary judgment on behalf of Dr. Rosenberg, and the burden shifts to Plaintiff to raise a triable issue of fact.

In opposition, Plaintiff's critical care expert acknowledges that Dr. Rosenberg documented on June 11 that the chest x-ray showed "right side [chest tube] not properly in lung" and ordered a cardiothoracic surgery consult (discontinued defendant Dr. Yun) for "management of the chest tubes and possible complications from their placement, as well as the timing of follow-up scans." Plaintiff further states that "Dr. Rosenberg deferred further management of the incorrectly placed chest tube to Dr. Yun and cardiothoracic surgery," and when he saw the patient again on June 13, the mispositioned chest tube had been removed and replaced.

However, Plaintiff's expert opines that Dr. Rosenberg departed from the standard of care by failing to timely recognize and treat the injury to the esophagus caused by the original chest tube insertion by Dr. Brill "and the repercussions of the injury." They opine that Dr. Rosenberg should have been aware of the potential damage to her esophagus and developing pneumomediastinum.

Plaintiff's emergency medicine expert also offers more specific opinions on the alleged departures from the standard of care by Dr. Rosenberg in "failing to recognize the injury to the esophagus and mediastinum structure due to the mispositioning of the right chest tube." Specifically, the expert opines that based on the radiological studies and the cardiothoracic consult on June 11, 2019 showing "pneumomediastinum with air in the center of the chest," the attending physician should have ruled out "trauma from the chest tube placement" by timely ordering serial CT scans with contrast and a CT with oral contrast.

Plaintiff's expert further opines that Dr. Rosenberg "ordered the resumption of diet on June 13," which "allowed food, soilage and acid to be introduced that allowed contaminants and air to enter the compromised mediastinal area." The expert opines that this was a departure from the standard of care, and oral feeding should not have been contraindicated for a patient with "high suspicion of esophageal injury as early as June 10."

On proximate causation, Plaintiff's critical care expert opines that Decedent's delay in diagnosis and treatment for her developing esophageal injury caused "necrosis of the esophagus which progressed to perforation and mediastinitis." Plaintiff's expert counters the movants' expert that she exhibited no symptoms warranting further tests, stating that they should have been prompted by the initial chest tube misplacement. The expert opines that although the patient "seemed to do better for a limited period of time immediately following the injury," this is consistent with "the nature of an esophageal injury" as her complications and inflammation developed afterwards. As previously discussed, the critical care expert also opines that her delay in treatment for the esophageal perforation and mediastinitis were a proximate cause of her subsequent injuries, clinical deterioration, and death.

Of note, Plaintiff's critical care expert conflicts with the opinions of Defendants' experts regarding the "tear in the posterior walls of the pre-epiglottic space prior to the cords" referenced on June 16, 2019 during the reintubation. The expert opines that this was a separate tear "above the esophagus, basically behind the tongue." Notably, Plaintiff's expert agrees that this tear "could have been by the original intubation and can happen" without negligence, and that "a tear at this level requires no treatment." The expert opines that the "esophageal encroachment by the chest tube and subsequent perforation as seen on the EGD and CT on 6/17/19 is in a different area, directly on the esophagus" and this represented a wholly different injury than the one addressed by Defendants' experts.

Based on these submissions, the Court finds that Plaintiff's experts have raised triable issues of fact with respect to Dr. Rosenberg's evaluation and treatment of Decedent as the ICU attending physician. In contrast to the broad claims against Dr. Orsini, Plaintiff's experts have opined in detail as to specific departures from the standard of care by Dr. Rosenberg, including not timely ordering additional chest CT scans and recommending resumption of an oral diet on June 13. Plaintiff's experts have also raised issues of fact that the delayed diagnosis of her complications stemming from the intubation injury proximately caused her to develop infection and sepsis, and led to her overall clinical deterioration and eventual death. For these reasons, the Court finds that summary judgment cannot be granted to Dr. Rosenberg as a matter of law, and the part of the motion seeking summary judgment in his favor is denied.

Next, in support of the motion with respect to radiologist Dr. Rapoport, the movants submit an expert affirmation from Craig H. Sherman, M.D. ("Dr. Sherman"), a licensed physician board certified in diagnostic radiology and neuroradiology.

Dr. Sherman opines that the radiologist Dr. Rapoport complied with the standard of care in reviewing and reporting on Decedent's chest CT scan without contrast on June 11, 2019. He notes that according to her report, "there was extensive subcutaneous air within the anterior chest wall bilaterally . . . but no esophageal tear was present." Based on his review of the study and the prior and subsequent radiological studies, Dr. Sherman opines that this interpretation and report was proper and complied with good and accepted medical standards. He states that the air could have had a number of sources "from the emergency intubation, chest compressions, or rib fractures which occurred in the emergency department, or from chronic obstructive pulmonary disease and asthma." He opines that there was no reason to suspect an esophageal perforation from the radiological study or her clinical symptoms, which at that time did not include "sudden, severe pain in the chest or abdomen, after forceful vomiting or an endoscopy, difficulty swallowing, painful swallowing, fever, or rapid heartbeat." The expert also states that "the chest tubes were noted to be mispositioned" in her report.

Dr. Sherman further states that on June 16, "a tear was discovered in the posterior wall of the pre-epiglottic space proximal to the vocal cords," and that tear likely occurred as a result of Decedent's emergent intubation on June 10-11, 2019. He opines that this tear was not visible on the June 11, 2019 chest CT scan reviewed by Dr. Rapoport because the pre-epiglottic space was "not included in the field of view," and therefore she could not have diagnosed the perforation at that time. He opines that the diagnosis "was much easier to make on the June 17, 2019" which had additional findings and mediastinal fluid collection that were not present on June 11.

In opposition, Plaintiff submits an expert affirmation from their aforementioned expert in diagnostic radiology and neuroradiology.

Plaintiff's radiology expert opines that the June 10 chest x-rays from 9:15 p.m. and 9:50 p.m. clearly demonstrate the mispositioned right chest tube was placing pressure on the esophagus. The expert also opines that in the 10:44 p.m. chest x-ray, the right chest tube had been repositioned, but it remained in the incorrect position in that study with "multiple holes of the tube . . .visible outside the mediastinum."

Dr. Rapoport interpreted and reported the June 11, 2019 CT scan without contrast at 3:04 a.m., which also included comparison and review with the June 10 x-rays. Plaintiff's radiology expert opines that Dr. Rapoport departed from the standard of care in her review and report of these images. Specifically, the expert opines that Dr. Rapoport compared the CT scan to the three chest x-rays from the evening of June 10, but made "no mention of the mispositioning of the right chest tube seen in the chest x-rays" from 9:15 p.m. and 9:50 p.m., nor "any change in position of the right chest tube seen in the film" at 10:44 p.m. The expert opines that a complete report of the June 11 CT scan required comparison to the prior chest x-rays, a note of the chest tube mispositioning and repositioning, and "recommendation for further investigation such as CT with contrast or CT with oral solution."

The expert also opines that Dr. Rapoport failed to "report extensive inflammatory changes of the mid-to-distal esophagus and with associated mediastinal air seen (pneumomediastinum)" in the June 11 CT scan.

Additionally, as noted above, Plaintiff's experts offer conflicting opinions with the Defendants' experts as to the "pre-epiglottic space" tear which the movants argue was not visible in the CT scan. Plaintiff's critical care expert opines that this represented a separate and immaterial injury, and that the perforation of the esophagus developed in another location as a result of the right chest tube and subsequent delay in diagnosis and treatment.

Based on evaluation of these submissions, the Court finds Plaintiff's expert has raised triable issues of fact as to the departures from the standard of care by radiologist Dr. Rapoport in her interpretation and report of the June 11, 2019 CT scan. Furthermore, there are clear issues of fact raised by the expert submissions as to the nature and location of the esophageal injury itself which require the resolution of the jury. For these reasons, the part of the motion seeking summary judgment on the claims against radiologist Dr. Rapoport is denied.

The Court notes that the movants submitted supplemental affirmations in reply from their critical care expert Dr. Newmark and emergency medicine expert Dr. Raio. These affirmations merely restate their opinions as to the esophageal tear and reiterate their opinion that it was located in the "pre-epiglottic space," contrary to the opinions of Plaintiff's experts. As discussed above, the Court finds there remain clear issues of fact on this issue and others, precluding summary judgment on behalf of defendants Dr. Yeh, Dr. Rosenberg, and Dr. Rapoport.

Finally, the Court notes that The Brooklyn Hospital Center does not address any vicarious liability claims on behalf of nonparty resident Dr. Brill in their moving papers. Dr. Brill, the resident who inserted the right chest tube during Decedent's June 10, 2019 intubation, was an employee of The Brooklyn Hospital Center, and notwithstanding, he treated Decedent after she presented to the hospital for emergency medical treatment (see Fuessel v Chin, 179 AD3d 899, 901 [2d Dept 2020]; Mduba v Benedictine Hosp., 52 AD2d 450 [3d Dept 1976]).

Defendants' experts do not offer any opinions as to whether Dr. Brill complied with the standard of care, and thus they did not establish prima facie entitlement to summary judgment on this issue. Even if they had met their burden, Plaintiff's emergency medicine expert and critical care experts raise issues of fact by opining in detail that Dr. Brill's alleged misplacement and "excessive force" in inserting the right chest tube constituted an independent act of malpractice (see Khutoryanskaya v Laser & Microsurgery, P.C., 222 AD3d 633, 634 [2d Dept 2023] ["a medical facility may be held liable when its employees have committed independent acts of negligence"]).

On proximate causation, as previously discussed, the movants' experts opine that an esophageal tear is a known risk of intubation, but Plaintiff's experts have raised issues of fact that the alleged chest tube misplacement and excessive force proximately caused Decedent's injuries and death. For these reasons, the part of the motion seeking summary judgment in favor of The Brooklyn Hospital Center is denied as to any vicarious liability claims related to resident Dr. Brill, as well as their vicarious liability for the remaining co-defendants Dr. Yeh, Dr. Rosenberg, and Dr. Rapoport.

Accordingly, it is hereby:

ORDERED that the part of the motion (Seq. No. 3) seeking summary judgment in favor of Dr. Mahmoudi and Dr. Mansur is granted without opposition; and it is further

ORDERED that the part of the motion (Seq. No. 3) seeking summary judgment in favor of Dr. Orsini is granted, and all claims against said defendant are dismissed; and it is further

ORDERED that the part of the motion (Seq. No. 3) seeking summary judgment for Dr. Rosenberg is denied; and it is further

ORDERED that the part of the motion (Seq. No. 3) seeking summary judgment for Dr. Rapoport is denied; and it is further

ORDERED that the part of the motion (Seq. No. 3) seeking summary judgment for Dr. Yeh is denied; and it is further

ORDERED that the part of the motion (Seq. No. 3) seeking summary judgment in favor of The Brooklyn Hospital Center is granted to the extent of dismissing any vicarious liability claims on behalf of Dr. Orsini, Dr. Mahmoudi, Dr. Mansur, and Dr. Yun, and the motion is otherwise denied; and it is further

ORDERED that the caption shall also be amended to remove the previously discontinued defendant Tyan Yun, as Executor of the Estate of Jamie Yun, M.D.; and it is further

ORDERED that the caption is amended to read:

VERA HAMLIN, individually and as Administrator of the

Estate of DIANE HAMLIN,

Plaintiff,

against

JOSHUA ROSENBERG, M.D., GLORIA RAPOPORT, M.D.,

AMY YEH, D.O., and THE BROOKLYN HOSPITAL CENTER,

Defendants.

The Clerk shall enter judgment in favor of JOSE E. ORSINI, M.D., MAYHAR MAHMOUDI, M.D., and MOSSAMMAT MANSUR, M.D.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.

FOOTNOTES

1.   A separate summary judgment motion (Seq. No. 2) on behalf of co-defendant Tyan Yun, as Executor of the Estate of Jamie Yun, M.D., was withdrawn, and Plaintiff's claims against Dr. Yun's estate were discontinued by a so-ordered stipulation on April 21, 2026.

Consuelo Mallafre Melendez, J.