Boris Tulchinsky, Plaintiff, v. RN FRANCIS TIRIPICCHIO PA DANIELLE DOUCETTE PA ROSS GAUDET MD PATRICIA BRESSI RN PATRICIA AYOUNG CHEE MD ELISA PENNELLA PA MICHAEL BARFIELD MD THOMAS MALDONADO MD PATRICK LAMPARELLO MD JULIA BEVILACQUA NP CONOR GRADY MD DONATO PACIONE MD TISCH HOSPITAL NYU LANGONE HOSPITALS NYU LANGONE HEALTH NYU LANGONE HEALTH SYSTEM NYU SCHOOL OF MEDICINE NEW YORK UNIVERSITY (2026)

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

NYSCEF #s: 111-137, 140-144, 145

Defendants Gabrielle Amoroso, R.N. ("R.N. Amoroso"), Francis Tiripicchio, P.A. ("P.A. Tiripicchio"), Danielle Doucette, P.A. ("P.A. Doucette"), Ross Gaudet, M.D. ("Dr. Gaudet"), Patricia Bressi, R.N. ("R.N. Bressi"), Patricia Ayoung-Chee, M.D. ("Dr. Young-Chee"), Elisa Pennella, P.A. ("P.A. Pennella"), Michael Barfield, M.D. ("Dr. Barfield"), Thomas Maldonado, M.D. ("Dr. Maldonado"), Patrick Lamparello, M.D. ("Dr. Lamparello"), Julia Bevilacqua, N.P. ("N.P. Bevilacqua"), Conor Grady, M.D. ("Dr. Grady"), Donato Pacione, M.D. ("Dr. Pacione"), Tisch Hospital, NYU Langone Hospitals d/b/a NYU Langone Health, NYU Langone Health System, NYU School of Medicine, and New York University 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 the motion.

Plaintiff commenced this action on June 24, 2019, asserting claims of medical malpractice and lack of informed consent. The claims arise from a procedure to treat Plaintiff's thoracoabdominal aortic aneurysm (TAAA) and placing a Medtronic Manifold device on October 20, 2017. Approximately four hours after the procedure, Plaintiff experienced back pain, spasms, and loss of movement in his legs, and was diagnosed with spinal cord ischemia.

Prior to the events at issue, Plaintiff had been treated for aortic aneurysm by Dr. Lamparello since June 2013, a condition where the aorta is dilated and bulging between the chest and abdomen. He had undergone a previous endovascular repair for one of the aneurysms in July 2013. After that procedure, his multiple TAAAs were monitored by Dr. Lamparello with repeat CT scans.

In March 2017, a CTA of the chest revealed two of the aneurysms had increased in size. Dr. Lamparello recommended a hybrid surgical procedure "with open repair of the infrarenal abdominal aortic aneurysm and approximately two weeks later, endovascular repair of the suprarenal aortic aneurysm and lower thoracic aortic aneurysm." Plaintiff did not undergo the operation at that time, but later presented to Dr. Maldonado for surgical consultation in September 2017.

On October 20, 2017, Dr. Maldonado performed an endovascular repair using a Medtronic Valiant Visceral Manifold device, a thoracic stent graft system which was part of a clinical trial. Dr. Lamparello was present and assisted in the surgery, as well as vascular surgery fellow Dr. Barfield. The procedure began at 8:00 a.m. and lasted approximately eight hours.

Intraoperatively, neurosurgeon Dr. Pacione placed a lumbar cerebrospinal fluid (CSF) drain at 8:50 a.m. According to his testimony, Dr. Pacione left the operating room and deferred to the vascular service for management of the drain. At 2:13 p.m., the intraoperative drainage recorded was 10 cc.

Plaintiff was transferred to the PACU after the surgery was completed at approximately 4:10 p.m. The lumbar CSF drain was set at "5 cc/hr" according to the medical chart and nursing notes. Neurosurgery resident N.P. Bevilacqua examined Plaintiff at 6:07 p.m.

At approximately 7:30 p.m., Plaintiff began complaining of back pain and spasms, and he had loss of movement and sensation in his lower extremities. At 8:15 p.m., the medical chart showed that a "total of 15 cc of CSF" had been drained from the lumbar drain. By telephone, Dr. Maldonado recommended evaluation of the spinal cord pressure, draining additional CSF, and taking the patient for an MRI to rule out hematoma. CSF pressure had increased to 20 cm H20 at that time, and 55 cc of CSF was drained. Plaintiff was ultimately diagnosed with spinal cord ischemia, resulting in permanent lower extremity paralysis.

Plaintiff alleges that Dr. Maldonado departed from the standard of care by performing an endovascular rather than open procedure, and by failing to order adequate CSF drainage post-operatively. Plaintiff also alleges that various defendants from the neurosurgical team (including attending physician Dr. Pacione and N.P. Bevilacqua), vascular team, and PACU/critical care staff improperly monitored the drainage of cerebral spinal fluid following the procedure, resulting in insufficient drainage and excess pressure.

Plaintiff alleges that these departures were a proximate cause of his development of spinal cord ischemia and resulting injuries, including paraplegia. Plaintiff's claims against the institutional defendants (sued herein as Tisch Hospital, NYU Langone Hospitals d/b/a NYU Langone Health, NYU Langone Health System, NYU School of Medicine, and New York University) arise from vicarious liability for the employee physicians, residents, physician's assistants, nurses, and staff.

"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 with respect to Dr. Maldonado, the movants submit an expert affirmation from Darren Schneider, M.D. ("Dr. Schneider"), a licensed physician board certified in vascular surgery.

Dr. Schneider opines that TAAA repair is indicated "once the aneurysm reaches a size greater than 5.5 cm" due to the risk the aneurysm will rupture, which can be life-threatening. At the time of Plaintiff's surgery, his largest aortic aneurysm had grown to 5.7 cm and the expert opines that a surgical repair was indicated. The expert opines that generally, an open procedure is sometimes necessary "based on the anatomical configuration of the aneurysm and its location," but where possible, an endovascular procedure with a stent graft is preferred due to its "lower risk of mortality and morbidity."

Dr. Schneider opines that because "technology was continuously evolving and improving," an endovascular option using a Medtronic Manifold branched device became available during Plaintiff's treatment. He opines that it was appropriate and within the standard of care to use this type of stent graft to maintain blood flow to the celiac, superior, mesenteric, and renal arteries. He also notes that while the specific device was part of a clinical trial, similar branched stent grafts are commonly used in this type of procedure.

The expert opines that Plaintiff was a candidate for "open surgical repair, hybrid procedure, or endovascular repair" at the time of his procedure, that all three carried risks and benefits, and that it was "reasonable professional judgment" for Dr. Maldonado to recommend and perform the endovascular approach. Dr. Schneider also opines in detail that the surgery itself was appropriately performed by Dr. Maldonado.

On the CSF drainage, the expert explains that lumbar drains are "placed by neurosurgery into the intrathecal space to drain off CSF intraoperative or postoperatively to decrease the CSF pressure within the intrathecal space, in order to maintain blood flow to the spinal cord." The expert opines that the amount of CSF drainage is a "collaborative decision" between the vascular and neurosurgery physicians and that this drainage is increased as a "rescue measure" if the patient exhibits neurological symptoms.

The expert opines that it was within the standard of care to place the lumbar drain intraoperatively as a "prophylactic" measure in the event that the patient "developed changes in spinal cord function that warranted drainage of the CSF." The expert opines that the amount of drainage is determined "at the discretion of the vascular surgeon" and that there is no set amount of drainage which is required by the standard of care. He opines that Dr. Maldonado's postoperative plan to drain CSF at 5 cc per hour, and to "selectively increase the CSF drainage if there was any evidence of spinal cord ischemia," was within good and accepted medical standards.

The expert notes that Plaintiff had an "abrupt onset of pain" at approximately 7:45 p.m. and loss of function in his lower extremities by 8:15 p.m. At this time, he notes that Dr. Maldonado was available by phone and in touch with the vascular surgery team including P.A. Pennella. The expert opines that Dr. Maldonado remained "involved in the management of this patient even though he was not physically present," and that he "appropriately recommended increasing the lumbar drainage output." He opines that the fellows, residents, and staff followed his directives to increase spinal cord drainage and elevate the blood pressure using vasopressors, which in the expert's opinion was in accordance with the standard of care.

On the issue of proximate causation, the expert opines that paraplegia is a known risk of "any type of aneurysm repair surgery, whether open or endovascular, due to interruption of blood vessels that supply circulation to the spinal cord." The expert opines that the infarction did not occur intraoperatively but was instead a "delayed onset of paralysis" which is a "well-recognized and common pattern of spinal cord injury from TAAA repair due to the natural clotting of the aneurysm sac." He opines that this type of injury is an "inherent complication" which occurred in the absence of any malpractice.

The expert further opines that the endovascular approach "may reduce the risk of paraplegia in comparison to an open surgery," because each vessel is addressed one at a time and there is continued perfusion of the aorta. For this reason, the expert opines that the choice to perform an endovascular rather than open repair did not proximately cause or contribute to Plaintiff's injury, because the risk of paralysis from this procedure was equal or lower than open surgery.

The expert also opines that Plaintiff's claim that the spinal artery could have been identified and reimplanted in an open procedure is "not supported by the current surgical literature or standard operative practice." He opines that there is "no consensus" as to whether the standard of care requires routine reimplantation, because "the vascular supply to the spinal cord is highly variable" and the main arteries are "frequently not reliably identifiable preoperatively on imaging or intraoperatively." He opines that whether an open repair with intercostal or lumbar artery reimplantation is feasible and beneficial is a matter of "the surgeon's discretion" and not required by the standard of care.

The movants also submit an expert affirmation from Ron I. Riesenburger, M.D. ("Dr. Riesenburger"), a licensed physician board certified in neurosurgery.

As relevant to Dr. Maldonado, the neurosurgery expert opines that after the patient's onset of postoperative symptoms, he properly recommended to increase the CSF drainage, increase blood pressure, and send the patient for an MRI. The expert opines that 50 cc of CSF was "a reasonable amount to drain to see if there was any change in the patient's symptoms."

The neurosurgery expert also offers an opinion on proximate causation, stating that Plaintiff's spinal cord ischemia and paralysis was "caused by reduced blood flow to the spinal cord, which is a well-recognized complication to TAAA repair." The expert further opines that due to the nature of spinal cord ischemia, "the damage was not reversible" and no alleged malpractice of the defendants was a cause or contributing factor in his paralysis.

Based on the evaluation of these submissions, the movants have established prima facie entitlement to summary judgment in favor of Dr. Maldonado, offering detailed expert opinions as to the standard of care and proximate causation. The burden of proof therefore shifts to Plaintiff to raise triable issues of fact.

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

Plaintiff's vascular surgery expert explains that preventing spinal cord ischemia is a "central concern" of TAAA repair, "because the segment of the aorta being repaired gives rise to the small segmental arteries that supply blood to the cord." The expert counters the movant's expert Dr. Schneider who stated that the endovascular repair employed in this case carried the same or lower risk of paralysis as an open repair. Plaintiff's expert emphasizes that an open repair "permits the surgeon to identify and reimplant segmental arteries," while an endovascular repair does not allow for this reimplantation option. The expert also notes that Plaintiff's physician Dr. Lamparello initially recommended and planned for a "hybrid approach" where an open repair would be used for the larger aortic aneurysm, and opines that this was the appropriate procedure for a patient in Plaintiff's position who was a candidate for open repair. The expert opines that Dr. Maldonado departed from the standard of care by selecting and performing an endovascular repair with the Manifold device, which "covered the segmental intercostal and lumbar arteries supplying the spinal cord and categorically foreclosed the identification, preservation, and reimplantation of that segmental supply."

Plaintiff's expert opines that although an open procedure carries a risk of "global ischemia produced by aortic cross-clamping," it is in their opinion the appropriate option for protecting the cord from the specific injury that occurred in this case. The expert opines that the endovascular approach "forfeited the segmental cord protection that open repair uniquely makes possible" (emphasis added). The expert opines that although there is a general ischemia risk associated with open repair, "for this patient, whose cord depended on that segmental and collateral supply, the endovascular approach traded away the very protection that mattered."

The expert also counters the opinion of the movant's expert that reimplantation of a spinal artery during open repair is "not supported by the current surgical literature" and not required by the standard of care. Plaintiff's expert opines that reimplantation is "a recognized and long-established cord protective technique." Plaintiff's expert further opines that while it is not the standard of care for every patient to undergo open repair, this patient was a candidate for that type of procedure, and in their opinion, the standard of care required that "the surgeon preserve the ability to identify and restore flow to the critical segmental supply, which is a recognized advantage of the open approach and which the endovascular repair eliminated at the outset." Therefore, they opine that performing the endovascular rather than open repair in this case constituted a departure from the standard of care.

Additionally, the vascular surgery expert opines that management of the CSF drain was "a vascular surgical responsibility" and therefore within the scope of care provided by Dr. Maldonado and the vascular team. He states that "the management of the drain belonged to the vascular surgery service, which is why the drainage decisions are measured against the vascular surgical standard of care."

The vascular expert opines that it is crucial to ensure CSF drainage to lower intrathecal pressure, maintain cord perfusion, and protect the cord during and after TAAA repair. The expert further states that draining CSF "increases blood flow to the cord" and "guards against ischemia." Plaintiff's expert opines that active and well-monitored CSF drainage is necessary and required following the type of procedure undergone by the patient.

They further opine that although "the precise rate [of drainage] is a matter of judgment," the standard of care requires "that a drain placed for cord protection be actively managed to a defined pressure target." The expert opines that "a drain that is patent is not the same as a drain that is protecting the cord," and that the set rate of 5 cc/hour was "set only to keep the drain patent and to prevent clot, and not to lower intrathecal pressure." The expert opines that the fact only 15 cc was drained throughout the evening further demonstrates that it was not being "actively managed to protect the cord during the vulnerable postoperative window." Further, the expert notes that there are discrepancies in the hospital record as to how much fluid was actually drained. The postoperative order stated "drain 5 ml per hour for the first 24 hours" and "keep to less than 15 mm Hg or less than 15 cm H20," but the only intraoperative drainage recorded was "a single 10 cc entry" at 2:13 p.m. Later, the note of "total of 15 cc of CSF drained since OR" at the outset of the patient's symptoms was inconsistent with the entries stating 5 ccs were drained at four hourly intervals from 4:59 p.m. through 7:59 p.m. The expert opines that these inconsistencies reveal that either "the drain was not delivering even the nominal rate order to keep it patent," or that "the service responsible for the drain was assessing the patient at the moment of crisis on a materially understated figure," both of which constitute departures from the standard of care. The expert also opines that "the ordered pressure ceiling was never verified before the crisis," and that it was not until the patient began exhibiting symptoms that the pressure was measured at 20 cm H20.

The expert opines that as the lead vascular surgeon, Dr. Maldonado "set the drainage strategy" of 5 mL per hour. The expert opines that this rate was too low, intended "for patency rather than cord protection," and that rate was not properly monitored and increased as needed. The expert opines that these directives represented a departure from the standard of care.

In sum, the expert opines that it is "not disputed" that reduced blood flow to the spinal cord was mechanism of the patient's injury. Due to this risk of ischemia, they opine that Dr. Maldonado deviated from the standard of care by failing to utilize "two cord-protective measures that were available and not employed: a repair that preserved the segmental spinal supply, and a lumbar drain actively managed to maintain cord perfusion."

On the issue of proximate causation, Plaintiff's vascular expert agrees with the movant's expert that "the injury did not occur intraoperatively" but during the "postoperative window" when an infarction developed. However, Plaintiff's expert explains in detail their opinion that an open repair, rather than endovascular approach, would have mitigated or prevented the patient's spinal cord ischemia. They opine that the endovascular repair "covered, and therefore sacrificed . . . the intercoastal and other segmental arteries arising from the aorta between the T8 and L1 segments, together with the radiculomedullary supply arising from them." The expert opines that the patient was "placed at a significant additional risk of spinal cord ischemia" post-operatively by this technique, and that the alternative of open repair and reimplantation of the arteries "would more likely than not have resulted in improved perfusion of the spinal cord and a significantly lower likelihood of the spinal cord ischemia and associated neurological injury that occurred."

The expert also opines that the alleged failure to maintain the lumbar drainage was a proximate cause of the patient's ischemia. The expert notes that in the neurosurgeon Dr. Pacione's own words, the drain was placed "in order to reduce the intraspinal pressure in the event of loss of flow to the anterior spinal artery," and that "the first maneuver undertaken" when the patient's ischemia was recognized was opening the drain to lower the intrathecal pressure to a target below 10 cm. They opine that "had that same active management been in place during the postoperative window, rather than a drain kept at a patency trickle that returned roughly 15 cc, the anterior spinal cord ischemia more likely than not would have been prevented or substantially lessened." The expert opines that the fact the "belated crisis drainage" was ineffective in reversing the ischemia "confirms that the time for cord-protective drainage was the window before the cord infarcted, not after."

Plaintiff's vascular expert counters the opinions of the movants' experts that reduced blood flow to the spinal cord "was an inherent complication" of the procedure. The expert opines that the risk of reduced blood flow and resulting spinal cord ischemia was exacerbated and worsened by the method of the procedure and the lumbar drain management.

Plaintiff also submits an expert affirmation from a licensed physician (name of expert redacted), board certified in neurosurgery. The Court was presented with a signed, unredacted copy of this affirmation for in camera inspection.

On the issue of proximate causation, Plaintiff's neurosurgery expert also opines that if an open repair had been performed, preserving and reimplanting the segmental arterial supply to the spinal cord, "then more likely than not the paraplegia would not have occurred," as this method would have restored direct arterial inflow, maintained perfusion, and avoided the delayed infarction that was sustained by Plaintiff.

The neurosurgery expert also counters the movants' expert opinion that the spinal cord ischemia "produced irreversible spinal cord damage" which could not be addressed despite the attempt to drain additional CSF. The expert opines that failure to timely and properly detect and monitor issues with the CSF pressure and drainage was a proximate cause of the patient's development of spinal cord ischemia and paralysis.

Based on the submissions, the Court finds Plaintiff has raised triable issues of fact as to the alleged departures from the standard of care by Dr. Maldonado. "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]). Plaintiff's vascular and neurosurgery experts have also provided well-reasoned and detailed opinions, with citations to the record, countering the movants' position that the alleged departures did not proximately cause or contribute to Plaintiff's heightened risk of spinal cord ischemia and paraplegia.

As the experts have proffered conflicting opinions as to the standard of care and proximate causation, the motion for summary judgment in favor of Dr. Maldonado on the medical malpractice claims must be denied.

On the separate cause of action for lack of informed consent, this is a distinct claim in which the plaintiff must ultimately prove:

"(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. The third element 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, 135 AD3d 810, 811-812 [2d Dept 2016] [internal citations and quotation marks omitted]).

The Second Department has held that "while 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]).

It is undisputed that Dr. Maldonado was the physician responsible for disclosing the risks, benefits, and alternatives to the procedure and obtaining the patient's informed consent. The movant's vascular expert Dr. Schneider opines that Plaintiff was "extensively counseled as to the risks, benefits, and alternatives to this procedure," including being "advised of the options of open repair, hybrid repair, usage of the Manifold device, or continued monitoring." He further opines that the patient was properly advised that paralysis and spinal cord injury were a risk of all the surgical options. The expert states that Plaintiff's testimony that he was not advised of the risks is "clearly disputed by the contemporaneous medical records and the lengthy consent form that he executed."

In opposition, Plaintiff's vascular expert opines that Dr. Maldonado failed to give the patient "complete and accurate information about the recommended procedure, the available alternatives, and the comparative risks of each." The expert notes that the plan for Plaintiff's surgery "shifted over time" from an open hybrid repair to a wholly endovascular approach, and there was no "documented explanation for the change." The expert also opines that notably, the patient in this case testified he was not aware that the Manifold device implanted was "investigational," used as part of a clinical trial (which was later discontinued), and had not been approved by the FDA. The expert opines that these facts should have been clearly disclosed as they bear directly on the known (and unknown) risks of the procedure, and the risks and benefits of the open repair alternative. Further, the expert notes that the patient testified he was not disclosed any risks and only told he would be able to "go back to work" after.

Based on these submissions, the Court finds Plaintiff has sufficiently raised a triable issue of fact that Dr. Maldonado failed to disclose the alternatives and risks that that "a reasonable medical practitioner would have disclosed." Although there is evidence that Plaintiff signed a multi-page consent form, he has disputed in his testimony that he was fully informed of the nature of the clinical trial and endovascular device being used. This raises issues of fact and credibility as to whether he was properly informed of the risks and alternatives, precluding summary judgment as a matter of law.

As to the second element of informed consent, none of the parties' experts directly address the "reasonably prudent person" standard, but this is typically a question of fact to be determined by the jury.

Finally, as previously discussed, Plaintiff's vascular expert opines that the use of the endovascular approach with the Manifold stent device was a proximate cause of the patient's spinal cord ischemia, because it foreclosed the reimplantation technique which they opine would have preserved the segmental spinal blood supply. This conflicts with the movants' expert opinion that the method of surgery — and therefore the alleged lack of informed consent — was not a proximate cause of the patient's injuries. The weight of these differing expert opinions on proximate cause must be determined by the jury.

As there are triable issues of fact as to all three elements of the lack of informed consent claim, the part of the motion seeking summary judgment in favor of Dr. Maldonado on this claim is denied.

Turning to the claims against neurosurgeon Dr. Pacione, the movants' neurosurgery expert Dr. Riesenburger opines that his treatment complied with the standard of care at all times, intraoperatively and postoperatively.

The expert notes that it was Dr. Pacione who placed the lumbar drain intraoperatively and opines that its purpose "is to provide increased perfusion to the spinal cord in the event a patient develops spinal cord ischemia." He explains that draining the CSF "lowers the intrathecal pressure, which in turn theoretically results in increased blood flow to the spine." The expert opines that Dr. Pacione properly inserted the lumbar drain at the L4-L5 interspace and confirmed there was "spontaneous flow of CSF without complication." Once the drain was placed, the expert opines that it was appropriate for Dr. Pacione to "defer to the vascular surgery service as to how much CSF, if any, would be removed through the lumbar drain."

Dr. Riesenburger further opines that CSF drainage does not eliminate or reduce the risk that ischemia will occur and "does not work prophylactically" before ischemia occurs, but instead can be used to restore blood flow. For this reason, he opines that Dr. Pacione's placement of the lumbar drain was not a proximate cause of injury to the patient.

In opposition, Plaintiff's vascular expert opines that Dr. Pacione placed the lumbar drain "as co-surgeon with Dr. Maldonado for the cord-protective purpose recited in his operative report." The expert notes that Dr. Maldonado and the vascular team were the main physicians responsible for monitoring the CSF drainage, and the neurosurgeon stated that he "deferred" to their drainage management. However, the expert opines that Dr. Pacione had an independent duty to "ensure that the lumbar drain was functioning property." The expert opines that the fact the drain "returned only approximately 15 cc from the operating room through the evening" evinces that Dr. Pacione and his team departed from the standard of care in failing to appropriately monitor the drainage output "across the very window in which it was meant to protect the cord."

Plaintiff's neurosurgery expert further opines that Dr. Pacione departed from the standard of care in ensuring the drain was functioning and monitoring it postoperatively. The expert does not dispute that Dr. Pacione "properly placed the lumbar drain, and that it was the primary responsibility of the vascular surgery service, not the neurosurgical service, to dictate the height at which the drain was to be set . . . and the volume of cerebrospinal fluid drainage." Notwithstanding, the expert opines that part of Dr. Pacione's role included an "affirmation obligation to ensure that the drain functioned within the parameters that would create optimal spinal cord perfusion."

Plaintiff's expert notes that the defendants' own vascular expert referred to the amount of drainage as a "collaborative decision" between the vascular and neurosurgery team. Plaintiff's expert opines that it was a departure from the standard of care for Dr. Pacione to defer management of the drain entirely to Dr. Maldonado, as "the neurosurgery service plainly has expertise regarding spinal cord perfusion." Thus, they opine that Dr. Pacione is also liable for the alleged inadequate drainage order of 5 cc/hour with "intrathecal pressure kept under 15 cm H20 or 15 mm Hg," which the expert opines was an "ambiguous and poorly stated" pressure target because 15 cm H20 and 15 mm Hg are not equivalent.

The expert also opines that Dr. Pacione had a duty to ensure "that the drain was properly managed and maintained," which the expert opines did not occur in this case. As the "supervising neurosurgeon" who oversaw N.P. Bevilacqua and others, the expert opines that Dr. Pacione did not adequately monitor the CSF drainage and pressure "to detect evolving anterior cord ischemia in a patient at known risk of it."

Plaintiff's neurosurgery expert also opines, as previously discussed, that the alleged inadequate CSF drainage and monitoring was a proximate cause of the patient's spinal cord ischemia, and that timely draining CSF would have increased spinal perfusion and prevented the patient's paraplegia.

"Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient" (Abruzzi v Maller, 221 AD3d 753, 755 [2d Dept 2023]; Meade v Yland, 140 AD3d 931, 933 [2d Dept 2016]). "The existence and scope of a physician's duty of care is a question of law to be determined by the court" (Cooper v City of New York, 200 AD3d 849, 851 [2d Dept 2021], quoting Romanelli v Jones, 179 AD3d 851, 852-854 [2d Dept 2020]).

Based on the record, testimony, and the defendants' own vascular expert opinion that CSF drain management was a "collaborative decision" between vascular and neurosurgery, the Court finds as a matter of law that the scope of the duty undertaken by Dr. Pacione included ensuring the drain was properly functioning and monitored. Whether he performed this duty within good and accepted medical standards is an issue of fact which must be resolved by a jury, based on the conflicting opinions of the parties' experts.

Additionally, as previously discussed, the parties' experts have offered detailed conflicting opinions as to whether the alleged departures in the lumbar CSF drain were a proximate cause or substantial factor in the patient's spinal cord ischemia and paralysis.

For these reasons, the part of the motion seeking summary judgment in favor of Dr. Pacione on the medical malpractice claim is denied. However, as it is not disputed that Dr. Pacione was not responsible for obtaining the patient's informed consent, the motion is granted to the extent of dismissing that claim against him.

The substance of Plaintiff's opposition papers does not address any alleged departures from the standard of care by Dr. Lamparello, who was present during the October 20, 2017 procedure but did not direct the method of that procedure or any of his post-operative care. As neither of Plaintiff's experts raise any issues of fact as to any departures from the standard of care by Dr. Lamparello, the part of the motion seeking summary judgment in his favor is granted, and all claims against him herein are dismissed.

Briefly, as to the other named defendants, Plaintiff asserts claims against N.P. Bevilacqua, who was part of the neurosurgery team under the direction and supervision of Dr. Pacione. Plaintiff also asserts claims against resident Dr. Barfield, who was part of the vascular team under the direction and supervision of Dr. Maldonado.

"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]). A supervised physician, physician's assistant, or nurse is also liable for committing "independent acts of negligence" (Khutoryanskaya v Laser & Microsurgery, P.C., 222 AD3d 633, 634 [2d Dept 2023]).

As to neurosurgery N.P. Bevilacqua specifically, the movants' expert Dr. Riesenburger opines that she properly examined the patient at 6:07 p.m. and evaluated the lumbar drain at that time. The expert opines that there is "no evidence that the examination was not properly performed or that N.P. Bevilacqua failed to identify any obstruction in the drain." He opines that the nursing flowsheets confirmed approximately 5 cc of CSF was being drained each hour, demonstrating that the drainage was functioning properly.

In opposition, Plaintiff's neurosurgery expert opines that N.P. Bevilaqua's examination of the patient at 6:07 p.m. was "remarkably deficient." The expert notes that at this point, Plaintiff had already complained of "quadriceps weakness together with a feeling of heaviness in his leg," and opines that this required N.P. Bevilaqua to "thoroughly test the other proximal motor groups with which pain was not associated" and to check his deep tendon reflexes. The expert also opines that N.P. Bevilacqua "did not document the volume of cerebrospinal fluid drainage at all," which was inconsistent in the medical chart and nursing flowsheets, and was ultimately determined to be below the 5 cc/hour order at 8:15 p.m.

Plaintiff's expert has raised a triable issue of fact as to the alleged specific, independent act of negligence of N.P. Bevilacqua in conducting the 6:07 p.m. examination and monitoring the CSF drainage (see Khutoryanskaya., 222 AD3d at 634). For this reason, the part of the summary judgment motion on her behalf is denied.

As to the vascular resident Dr. Barfield, the movant's vascular expert opines that he acted at all times under the direction and supervision of Dr. Maldonado during the surgery and performed no "critical portions" of the procedure or independent management of the patient's postoperative care.

In opposition, Plaintiff's expert opines generally that the "vascular surgery service" including the "vascular fellow" (Dr. Barfield), committed independent acts of negligence when they "undertook the drain's management." According to a nurse's progress note following the procedure, Dr. Barfield was "unsure if drain should be clamped or drained, will let RN know once he speaks with Neurosurgery team," which the expert opines shows that "the service managing the drain did not know its own plan." However, the same note in the medical chart continued that "following discussion, vascular team instructed covering nurse to drain lumbar drain 5 cc/hr," which complied with the directive from Dr. Maldonado.

The Court finds that Plaintiff's expert has not raised a triable issue of fact as to any independent act of negligence or exercise of independent medical judgment of resident Dr. Barfield, nor any act which "so greatly deviated from the standard of care" that he was liable for failing to intervene. Thus, the part of the motion seeking summary judgment on his behalf is granted.

As to the physicians and staff in the PACU and critical care, the movants' vascular expert Dr. Schneider opines that from the period after the surgery from 4:30 p.m. to 8:15 p.m., Plaintiff was being "appropriately monitored in the PACU" by physicians and staff including P.A. Doucette, P.A. Tiripicchio, R.N. Bressi, and R.N. Amoroso, who were all under the direction and supervision of attending physician Dr. Gaudet. The expert opines that during that time, the CSF was being appropriately drained at 5 cc per hour based on Dr. Maldonado's instructions.

Plaintiff's vascular surgery expert opines generally that "the critical care and mid-level providers who accepted and monitored the patient postoperatively . . . undertook a role in the drain's management" and that they failed to "recognize and correct the inadequate drainage before the cord infarcted." However, the expert then states broadly and without detail that "my opinions as to the individual critical care and mid-level providers are calibrated to the discrete role each assumed and are, for several of them, correspondingly limited." The expert does not identify any specific departures from the standard of care by Dr. Gaudet, nor any independent acts or omissions by the physician's assistants to counter the movants' prima facie showing of entitlement to summary judgment in favor of those defendants.

Similarly, Plaintiff's expert opines broadly that the "bedside nursing staff" may have departed from the standard of care in "accurate execution and contemporaneous, accurate documentation" of the drainage and condition of the lumbar drain, but again does not make any citations to the record or specify the named defendants' alleged independent departures from the standard of care. Plaintiff's expert opinions on these parties are therefore conclusive, unsupported by the record, and do not raise a genuine issue of fact.

For this reason, the part of the motion seeking summary judgment in favor of Dr. Gaudet, P.A. Doucette, P.A. Tiripicchio, R.N. Bressi, and R.N. Amoroso is granted in its entirety.

Lastly, the Court notes that Dr. Ayoung-Chee (critical care attending), P.A. Pennella (surgical physician's assistant), and Dr. Grady (neurosurgery resident) all became involved in the patient's care after 8:15 p.m. when he had already begun to complain of pain and lost sensation in his lower extremities, and they had no prior involvement in managing the lumbar drain. Plaintiff does not address or raise any issues of fact that these parties departed from the standard of care or proximately caused injury to Plaintiff, and the part of the motion seeking summary judgment in their favor is granted in its entirety.

Accordingly, it is hereby:

ORDERED that the part of the motion seeking summary judgment in favor of Dr. Maldonado is denied; and it is further

ORDERED that the part of the motion seeking summary judgment in favor of Dr. Pacione and N.P. Bevilaqua is granted to the extent of dismissing any claim for lack of informed consent, and the motion is otherwise denied; and it is further

ORDERED that the part of the motion seeking summary judgment in favor of R.N. Amoroso, P.A. Tiripicchio, P.A. Doucette, Dr. Gaudet, R.N. Bressi, Dr. Ayoung-Chee, P.A. Pennella, Dr. Barfield, Dr. Lamparello, Dr. Grady is granted;

ORDERED that the part of the motion seeking summary judgment in favor of Tisch Hospital, NYU Langone Hospitals d/b/a NYU Langone Health, NYU Langone Health System, NYU School of Medicine, and New York University is granted to the extent of dismissing any vicarious liability claims on behalf of the physicians and staff awarded summary judgment herein, and the motion is otherwise denied;

ORDERED that the caption is amended to read:

BORIS TULCHINSKY,

Plaintiff,

against

THOMAS MALDONADO, M.D., JULIA BEVILACQUA, N.P., DONATO PACIONE, M.D., TISCH HOSPITAL, NYU LANGONE HOSPITALS d/b/a NYU LANGONE HEALTH, NYU LANGONE HEALTH SYSTEM, NYU SCHOOL OF MEDICINE and NEW YORK UNIVERSITY,

Defendants.

The Clerk shall enter judgment in favor of GABRILLE AMOROSO, R.N., FRANCIS TIRIPICCHIO, P.A., DANIELLE DOUCETTE, P.A., ROSS GAUDET, M.D., PATRICIA BRESSI, R.N., PATRICIA AYOUNG-CHEE, M.D., ELISA PENNELLA, P.A., MICHAEL BARFIELD, M.D., PATRICK LAMPARELLO, M.D., and CONOR GRADY, M.D.

This constitutes the decision and order of this Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.

Consuelo Mallafre Melendez, J.