Edwin Torres, Plaintiff, v. ADVANTAGE CARE PHYSICIANS EXPRESS DUANE STREET PETER JEONG FLATIRON DISTRICT MEDICAL OFFICE JAMES NGUYEN AILEEN LEE JULIO TEIXEIRA NORTHWELL HEALTH PHYSICIANS PARTNERS BARIATRIC SURGERY AT LENOX HILL MEGAN PANDORF NORTH SHORE LIJ MEDICAL (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 002) 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 125, 128, 132, 135, 138, 141, 143, 144, 145, 146, 155, 158, 161, 165, 166, 170, 172 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 121, 122, 123, 124, 126, 129, 133, 136, 139, 142, 147, 148, 149, 156, 159, 162, 167, 168, 173 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 73, 74, 75, 76, 77, 78, 79, 80, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 130, 131, 134, 137, 140, 150, 151, 152, 153, 154, 157, 160, 163, 164, 169, 171 were read on this motion to/for JUDGMENT - SUMMARY.

In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice and lack of informed consent, the defendant primary care physician James Nguyen moves pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against him (MOT SEQ 002). The plaintiff opposes that motion. The defendants Advantage Care Physicians New York, Advantage Care Physicians Express, Duane Street, and Flatiron District Medical Office (collectively the Advantage Care defendants) move for summary judgment dismissing the so much of the complaint insofar as asserted against them as was premised on the plaintiff's allegations that they are vicariously liable for Nguyen's wrongdoing (MOT SEQ 003). The plaintiff opposes that motion as well. The defendant bariatric surgeon Julio Teixeira, the defendant physician's assistant Megan Pandorf, the defendant Northwell Health Physicians Partners Bariatric Surgery at Lenox Hill, and the defendant Northshore LIJ Medical, P.C. (collectively the Northwell defendants), separately move for summary judgment dismissing the complaint insofar as asserted against them (MOT SEQ 004). The plaintiff also opposes that motion. Nguyen's motion is granted, and he is awarded summary judgment dismissing the complaint insofar as asserted against him. The Advantage Care defendants' motion is granted, and they are awarded summary judgment dismissing so much of the complaint insofar as asserted against them as was premised upon the plaintiff's allegations that they are vicariously liable for Nguyen's purported wrongdoing. The Northwell defendants' motion is granted to the extent that they are awarded summary judgment dismissing the complaint insofar as asserted against Pandorf and North Shore LIJ Medical, P.C., and dismissing, insofar as asserted against the two remaining Northwell defendants, both the lack of informed consent cause of action and the plaintiff's claims, as set forth in his bills of particulars, that they negligently hired, trained, supervised, or retained healthcare personnel. Their motion is otherwise denied.

The crux of the plaintiff's claims against Nguyen is that, on January 31, 2019, the latter committed malpractice by failing to order a bacterial culture, failing to perform other tests, failing to seek a consultation with an infectious disease specialist, failing to admit him to a hospital, and failing to diagnose the etiology of boils and an abscess on his right upper back and, therefore, failed properly and timely to treat those conditions with intravenous antibiotic therapy, causing pus and sepsis to remain and spread. The gist of his claims against the Advantage Care defendants is that, between January 16, 2019 and February 21, 2019, they committed malpractice by improperly performing an incomplete incision and drainage on his abscess and similarly failing to diagnose the etiology of boils and an abscess on his right upper back, and that, therefore, they failed properly and timely to treat those conditions. The plaintiff further alleged that the defendant nurse practitioner Aileen Lee committed malpractice on February 21, 2019 when, in the course of working for Advantage Care's Flatiron District Medical Office, she failed properly to diagnose and treat his boil and abscess, while the Northwell defendants committed malpractice between February 1, 2019 and February 4, 2019 by committing acts of negligence similar to those alleged against the Advantage Care defendants. In his complaint, the plaintiff generally alleged that all of these defendants failed to undertake the appropriate and necessary treatment for the illness with which he was diagnosed in a timely and competent fashion, negligently performed surgery, and negligently provided inadequate and substandard postoperative care, all of which caused sepsis to spread, resulting in multi-organ failure.

In his bill of particulars addressed to Nguyen, the plaintiff alleged that Nguyen departed from good and accepted practice by failing to take a complete and proper medical history, and failing to undertake and memorialize proper physical examinations. He further stated that Nguyen committed malpractice by ignoring his persistent right upper back boil, the presence of pus, and his back abscess, along with vomiting and sepsis, and, thus, failed to diagnose him with a persistent abscess, infected boil, and sepsis, or to discern the etiology thereof, thereupon misdiagnosing him and failing appropriately to treat those conditions. In this respect, he also asserted that Nguyen did not keep apprised of recent developments in medicine related to those conditions. He further faulted Nguyen for negligently attempting to drain his back abscess, specifically, by failing to make a thorough incision and effectuate a complete drainage, thus failing to completely remove pus pockets and infection and permitting pus pockets and infection to remain.¹ The plaintiff further averred that Nguyen improperly discharged him despite his continuing signs and symptoms of persistent infection and sepsis. In addition, he contended that Nguyen failed to prescribe appropriate medications in appropriate dosages and modes of delivery, failed to make timely referrals to appropriate specialists to treat the abscess, failed to refer him to a hospital for aggressive antibiotic therapy or other urgent medical and surgical interventions to treat persistent back boils, abscesses, and sepsis, failed to undertake or order additional tests, studies, and workups, including blood work, laboratory tests, cultures, sensitivity tests, x-ray and other imaging studies, and failed to make necessary and required plans and preparations for the diagnosis of his actual condition. Moreover, the plaintiff asserted that Nguyen permitted unqualified physicians and other healthcare personnel to treat him.² The plaintiff also alleged in that bill of particulars that Nguyen negligently failed properly to warn or advise him of the possible risks of the dangerous effects of a persistent boil, abscess, and sepsis, or the risks inherent in foregoing immediate aggressive interventions to treat advanced sepsis, such as septic shock with acute multi-organ failure, and other anticipated sequalae.

In his bills of particulars addressed to the Northwell defendants, including Teixeira and Pandorf, the plaintiff made virtually the same allegations as to the nature of their malpractice as he did with respect to Nguyen, adding that Pandorf committed malpractice by failing to perform a thorough and complete surgical drainage of the abscess so as to completely remove pus and infection from his back, thus permitting infection and pus to remain following drainage. With respect to Pandorf, the plaintiff further alleged that she failed to advise him of the culture results of pus drained from his abscess and failed to diagnose him with a methicillin-resistant Staphylococcus aureus (MRSA) infection, thus failing properly treat it with the proper antibiotics at an appropriate dosage or in an appropriate mode of administration, or to admit him to a hospital for additional treatment. He asserted that Northwell Health Physicians Partners Bariatric Surgery at Lenox Hill and Northshore LIJ Medical, P.C., were vicariously liable for the wrongdoing of Teixeira and Pandorf.

The plaintiff's bill of particulars addressed to the Advantage Care defendants essentially reiterated the claims of malpractice and other wrongdoing as the plaintiff specified in his bills of particulars addressed to Nguyen and the Northwell defendants.

The plaintiff contended that, as a consequence of the tortious conduct of the several defendants, he was caused to experience septic shock and advanced sepsis, with multi-organ failure, including septic encephalopathy, acute hypoxemic respiratory failure, critical illness-based polyneuropathy, disseminated MRSA with multisystem involvement, bacteremia, critical- care neuromyopathy with marked weakness of upper and lower extremities, lactic acidosis, supraventricular tachycardia, hyperglycemia, and acute renal/kidney failure, requiring dialysis and, ultimately, a kidney transplant. He further averred that the defendants' conduct proximately caused him to experience cavitation, acute inflammation, and abscesses in his right lung, requiring intubation and mechanical ventilation, along with an open right thoracotomy, with total pulmonary evacuation of hemothorax, decortication, and right lower lobe wedge resection, leading to a pleural biopsy and placement of a permanent catheter. The plaintiff additionally asserted that he was caused to undergo a tracheostomy and tracheotomy, with a percutaneous endoscopic gastronomy (PEG) placement, and to submit to long-term intravenous antibiotic therapy for multiple abscesses in his lung parenchyma. Moreover, he claimed that he experienced bilateral foot drop, lower extremity weakness, and impaired and abnormal gait, all of which required him to employ leg braces. The plaintiff contended that all of these injuries limited his activities of daily living, as well as his social and leisure activities, and caused him to lose income due to his inability to work.

It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Flanders v Goodfellow, 44 NY3d 57, 62-63 [2025]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 [1st Dept 1992]; see Haymon v Pettit, 9 NY3d 324, 327 n [2007]). Once the movant meets that burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 NY3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v Fischer Mills Condo Assn., 181 AD3d 448, 449 [1st Dept 2020]).

"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable' " (De Paris v Women's Natl. Republican Club, Inc., 148 AD3d 401, 403-404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 AD2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet his or her burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff's case, but must affirmatively demonstrate the merit of his or her defense (see Koulermos v A.O. Smith Water Prods., 137 AD3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 AD3d 458, 462 [1st Dept 2016]).

"To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff's injury" (Frye v Montefiore Med. Ctr., 70 AD3d 15, 24 [1st Dept 2009]; see SanMiguel v Grimaldi, 229 AD3d 152, 157-158 [1st Dept 2024], revd other grounds _____NY3d_____, 2025 NY Slip Op 05780 [Oct. 21, 2025]; Foster-Sturrup v Long, 95 AD3d 726, 727 [1st Dept 2012]; Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]; Elias v Bash, 54 AD3d 354, 357 [2d Dept 2008]; DeFilippo v New York Downtown Hosp., 10 AD3d 521, 522 [1st Dept 2004]). Moreover, where a physician fails properly to diagnose a patient's condition, thus providing less than optimal treatment or delaying appropriate treatment, and the insufficiency of or delay in treatment proximately causes injury, he or she will be deemed to have departed from good and accepted medical practice (see Perez v Fitzgerald, 115 AD3d 177, 178 [1st Dept 2014]; Perlin v King, 36 AD3d 495, 495 [1st Dept 2007]; see generally Zabary v North Shore Hosp. in Plainview, 190 AD3d 790, 795 [2d Dept 2021]; Lewis v Rutkovsky, 153 AD3d 450, 451 [1st Dept 2017]; Monzon v Chiaramonte, 140 AD3d 1126, 1128 [2d Dept 2016] ["(c)ases . . . which allege medical malpractice for failure to diagnose a condition . . . pertain to the level or standard of care expected of a physician in the community"]; O'Sullivan v Presbyterian Hosp. at Columbia Presbyterian Med. Ctr., 217 AD2d 98, 101 [1st Dept 1995]).

To make a prima facie showing of entitlement to judgment as a matter of law, a defendant physician moving for summary judgment dismissing a medical malpractice cause of action must establish the absence of a triable issue of fact as to his or her alleged departure from accepted standards of medical practice (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Barry v Lee, 180 AD3d 103, 107 [1st Dept 2019]; Frye v Montefiore Med. Ctr., 70 AD3d at 24) or establish that the plaintiff was not injured by such treatment (see Pullman v Silverman, 28 NY3d 1060, 1063 [2016]; see generally Kristie M. v. Mercy Hosp. of Buffalo, 240 AD3d 1228 [4th Dept 2025]; Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]). To satisfy this burden, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v Noble, 73 AD3d at 206; Joyner-Pack v Sykes, 54 AD3d 727, 729 [2d Dept 2008]; Jones v Ricciardelli, 40 AD3d 935, 935 [2d Dept 2007]). If the expert's opinion is not based on facts in the record, the facts must be personally known to the expert and, in any event, the opinion of a defendant's expert should specify "in what way" the patient's treatment was proper and "elucidate the standard of care" (Ocasio-Gary v Lawrence Hospital, 69 AD3d 403, 404 [1st Dept 2010]). Stated another way, the defendant's expert's opinion must "explain 'what defendant did and why' " (id., quoting Wasserman v Carella, 307 AD2d 225, 226 [1st Dept 2003]). Moreover, as noted, to satisfy the burden on a summary judgment motion, a defendant must address and rebut specific allegations of malpractice set forth in the plaintiff's bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045 [2d Dept 2010]; Grant v Hudson Val. Hosp. Ctr., 55 AD3d 874, 874 [2d Dept 2008]; Terranova v Finklea, 45 AD3d 572, 572 [2d Dept 2007]).

Once satisfied by the defendant, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit or affirmation attesting to a departure from accepted medical practice and/or opining that the defendant's acts or omissions were a competent producing cause of the plaintiff's injuries (see Roques v Noble, 73 AD3d at 207; Luu v Paskowski, 57 AD3d 856, 857 [2d Dept 2008]; see also Kristal R. v Nichter, 115 AD3d 409, 411-412 [1st Dept 2014]; Bacani v Rosenberg, 74 AD3d 500, 501-502 [1st Dept 2010]). Thus, to defeat a defendant's prima facie showing of entitlement to judgment as a matter of law, a plaintiff must produce expert testimony regarding specific acts of malpractice, and not just testimony that contains "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice" (Alvarez v Prospect Hosp., 68 NY2d at 325; see also Pancila v Romanzi, 140 AD3d 516, 516 [1st Dept 2016]; Callistro ex rel. Rivera v Bebbington, 94 AD3d 408, 410 [1st Dept 2012], affd sub nom. Callistro v Bebbington, 20 NY3d 945 [2012]; Frye v Montefiore Med. Ctr., 70 AD3d at 24). In most instances, the opinion of a qualified expert that the plaintiff's injuries resulted from a deviation from relevant industry or medical standards is sufficient to preclude an award of summary judgment in a defendant's favor (see Murphy v Conner, 84 NY2d 969, 972 [1994]; Frye v Montefiore Med. Ctr., 70 AD3d at 24).

The elements of a cause of action to recover for lack of informed consent are

"(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"

(Spano v Bertocci, 299 AD2d 335, 337-338 [2d Dept 2002]; see Zapata v Buitriago, 107 AD3d 977, 979 [2d Dept 2013]). For a statutory claim of lack of informed consent to be actionable, a defendant must have engaged in a "non-emergency treatment, procedure or surgery" or "a diagnostic procedure which involved invasion or disruption of the integrity of the body" (Public Health Law § 2805-d[2]). " '[T]his showing of qualitative insufficiency of the consent [is] required to be supported by expert medical testimony' " (King v Jordan, 265 AD2d 619, 620 [3d Dept 1999], quoting Hylick v Halweil, 112 AD2d 400, 401 [2d Dept 1985]; see CPLR 4401-a; Gardner v Wider, 32 AD3d 728, 730 [1st Dept 2006]). Hence, where a defendant establishes his or her prima facie entitlement to judgment as a matter of law in connection with a lack of informed consent cause of action by submitting an expert affirmation from a physician, a plaintiff can only raise a triable issue of fact by submitting "an expert affirmation stating with certainty that the information defendant[ ] allegedly provided to plaintiff before the [medical] procedures at issue departed from what a reasonable practitioner would have disclosed" (Leighton v Lowenberg, 103 AD3d 530, 530 [1st Dept 2013]). Expert testimony, however, is not necessary with respect to the issue of whether a reasonably prudent person, fully informed, would not have consented to the treatment (see Gray v Williams, 108 AD3d 1085, 1086-1087 [4th Dept 2013]; Hugh v Ofodile, 87 AD3d 508, 509 [1st Dept 2011]; Andersen v Delaney, 269 AD2d 193, 193 [1st Dept 2000]; Hardt v LaTrenta, 251 AD2d 174, 174 [1st Dept 1998]; Osorio v Brauner, 242 AD2d 511, 511-512 [1st Dept 1997]).

" 'The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law' " (Huichun Feng v. Accord Physicians, 194 AD3d 795, 797 [2d Dept 2021], quoting Schussheim v Barazani, 136 AD3d 787, 789 [2d Dept 2016]). Nonetheless, a defendant may satisfy the burden of demonstrating a prima facie entitlement to judgment as a matter of law in connection with such a cause of action where a patient signs a detailed consent form, and there is also evidence that the necessity of the procedure, along with known risks and dangers, were discussed prior to the surgery (see Bamberg-Taylor v Strauch, 192 AD3d 401, 401-402 [1st Dept 2021]).

In any event, "[a] failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that 'involve[s] invasion or disruption of the integrity of the body' " (Janeczko v Russell, 46 AD3d 324, 325 [1st Dept 2007], quoting Public Health Law § 2805-d[2][b]; see Lewis v Rutkovsky, 153 AD3d at 456), and that invasion or disruption is claimed to have caused the injury. Moreover, a claim to recover for lack of informed consent cannot be maintained where the alleged injuries resulted either from the failure to undertake a procedure or the postponement of that procedure (see Ellis v Eng, 70 AD3d 887, 892 [2d Dept 2010]; Jaycox v Reid, 5 AD3d 994, 995 [4th Dept 1994]). Stated another way, a plaintiff has no cause of action to recover for lack of informed consent where "[t]he injuries allegedly sustained by plaintiff were not the result of an invasive procedure, but instead were alleged to have been the result of a negligent failure to undertake or negligent postponing of such procedure" (Jaycox v Reid, 5 AD3d at 995; see Saguid v Kingston Hosp., 213 AD2d 770, 772 [3d Dept 1995]; Karlsons v Guerinot, 57 AD2d 73, 82 [4th Dept 1977]).

To establish a cause of action to recover for negligent hiring, supervision, training, and retention of health-care personnel, a plaintiff must demonstrate that the defendants either "knew, or should have known," of their employees' "propensity for the sort of conduct which caused the [patient's] injury" (Sheila C. v Povich, 11 AD3d 120, 129-130 [1st Dept 2004]; see Abbas v Richmond Univ. Med. Ctr., 229 AD3d 743, 744 [2d Dept 2024]; Kuhfeldt v New York Presbyt./Weill Cornell Med. Ctr., 205 AD3d 480, 481-482 [1st Dept 2022]).

In support of his motion, Nguyen submitted the pleadings, the plaintiff's bill of particulars that was addressed to him, the transcripts of the parties' deposition testimony, relevant medical records, the note of issue, a statement of allegedly undisputed material facts, an attorney's affirmation, and the expert affirmation of board-certified internist Brian Feingold, M.D. In support of their motion, the Advantage Care defendants relied on many of the same documents as Nguyen had submitted, including Dr. Feingold's affirmation, and submitted the plaintiff's bill of particulars as to them. In support of their motion, the Northwell defendants also relied on or separately submitted many of the same documents as Nguyen had submitted, and additionally submitted an attorney's affirmation, a statement of allegedly undisputed material facts, the expert affirmations of board-certified surgeon Ronald Chamberlain, M.D., and board-certified internist and infectious disease specialist William Mandell, M.D., and the affirmation of Avraham Z. Schwartz, who is employed by Northwell Health, Inc., as the Vice President of its Medical Malpractice and General Liability Program, Corporate Risk Management.

Dr. Feingold asserted that Nguyen did not depart from good and accepted practice in his treatment of the plaintiff, and that nothing that Nguyen did or did not do caused or contributed to any of the plaintiff's claimed injuries.

As Dr. Feingold explained it, on January 16, 2019, the plaintiff first presented to Advantage Care, complaining of a boil on his back that had been present for seven days, and was seen by the defendant nurse practitioner Peter Jeong. According to Dr. Feingold, the plaintiff told Jeong that the boil had not changed over the preceding seven days. The Advantage Care chart reported that Jeong then observed a boil on the plaintiff's upper right back, and performed an incision and drainage procedure in the office. According to that chart, pus and blood had been expelled from the boil, the size of which had been reduced by virtue of the removal of the pus, although Jeong noted that a small pocket had remained underneath the main portion of the boil that was unable to be incised or drained. Jeong referred to the presence of multiple chambers, of which two were removed, after which the medical assistant who had helped with the procedure also helped with the disposal of bandages. The chart indicated that Jeong advised the plaintiff to apply warm compresses to the incision site, and prescribed the antibiotic Bactrim Septra at a dosage of 400-80 milligrams per tablet. The chart reported that "most" of the pus was removed, and that the plaintiff left the office in stable condition, with a directive that he follow up if there was no improvement.

On January 31, 2019, the plaintiff returned to the Advantage Care office, at which time Nguyen saw him. Dr. Feingold attested that Nguyen had reviewed the medical records from the prior visit, questioned the plaintiff and obtained the plaintiff's medical history, and performed a physical examination. Nguyen authored a note indicating that the mass on the plaintiff's back had been present for 21 days, and that the plaintiff had been seen at Advantage Care 14 days earlier, at which time an attempt was made to drain the boil and antibiotics had been prescribed, but that there was no improvement in the plaintiff's condition. Nguyen wrote that the plaintiff described the boil as painful, but had reported no fever or chills. The chart reflected that the plaintiff's blood pressure was 154/99, and had a temperature of 99.0 degrees Fahrenheit, while Nguyen described the plaintiff's general appearance as "alert, well-appearing and in no distress." Nguyen reportedly performed a skin examination, after which he wrote that he had observed a subdermal mass on the plaintiff's upper right back, measuring 3 centimeters (cm) by 3 cm that was hard and ecchymotic, but without any discharge. According to Dr. Feingold, Nguyen referred the plaintiff to surgery and supportive care, and told the plaintiff to continue to apply heat and return to Advantage Care as needed, upon which the plaintiff responded that he understood the issues that he was facing, and agreed with Nguyen's plan. Dr. Feingold stated that Nguyen specifically "took measures to arrange for a surgical consult the very next day," and explained that the January 31, 2019 encounter constituted Nguyen's only involvement with the plaintiff's care.

Dr. Feingold provided a summary of the plaintiff's follow-up care by Teixeira and Pandorf at Northwell Health Physicians Partners in Bariatric Surgery (PBS) at Lenox Hill Hospital (LHH) between February 1, 2019 and February 13, 2019, which he described as involving a further drainage of pus from the boil or cyst, a biopsy of the pus, a diagnosis of MRSA, and the prescription of antibiotics, which the plaintiff filled on February 13, 2019.

According to Dr. Feingold's interpretation of the relevant records, on February 21, 2019, the plaintiff returned to Advantage Care, and was seen by the defendant nurse practitioner Aileen Lee, who wrote in the plaintiff's chart that the plaintiff had presented that day for an evaluation of non-bilious, non-bloody vomiting for the preceding three days and non-bloody diarrhea on the first of those three days. She further wrote that the plaintiff had completed the regimen of Bactrim that previously had been prescribed to him, but that the plaintiff did not complain of constipation or weight loss, manifested no fever or abdominal pain at this appointment, and was not experiencing diarrhea or vomiting at that time. She thus assessed the plaintiff as suffering from a viral syndrome, discussed oral rehydration and re-introduction of solid foods with him, and advised him to report to a hospital emergency department if his symptoms worsened.

Dr. Feingold explained that, on February 25, 2019, the plaintiff became acutely ill and presented to the emergency department at Coney Island Hospital in Brooklyn, New York, upon which the plaintiff was admitted to that hospital, was diagnosed with MRSA-related bacteremia, supraventricular tachycardia, acute kidney failure, septic encephalopathy, and acute hypoxemia respiratory failure, was treated for those conditions, and remained at that hospital until June 11, 2019. After his discharge from Coney Island Hospital, the plaintiff was admitted to NYU Langone Brooklyn from June 11, 2019 to July 11, 2019, admitted to at Gouverneur Hospital in Manhattan from July 11, 2019 to August 11, 2019 for rehabilitation, supportive care, and hemodialysis, and admitted to NYU Langone Hospitals from February 15, 2021 to February 21, 2021 for a kidney transplant.

Dr. Feingold expressly rejected the plaintiff's contention that Nguyen ignored the plaintiff's signs, symptoms, and complaints, including persistent right upper back boil with pus, back abscess, vomiting, and sepsis, explaining that, at the time of the plaintiff's only interaction with Nguyen, the plaintiff was not exhibiting any of those symptoms, there was no active discharge from the abscess at the time of the visit, and there were no signs and symptoms of sepsis. As he described it, sepsis is an acute and rapidly progressive condition resulting from uncontrolled bacterial infection in the blood stream that typically presents with fever, chills, tachycardia, hypotension, respiratory distress, hemodynamic instability, confusion, or altered mental status, and that the plaintiff did not present to Nguyen with any of those signs or symptoms. Rather, Dr. Feingold explained that the plaintiff's pulse during his visit with Nguyen was 86 beats per minute, which he characterized as "normal and not indicative of Tachycardia." Similarly, he asserted that the plaintiff's body temperature of 99 degrees Fahrenheit, as measured during that visit, was within normal parameters, and that there was no reported history of fever, while the plaintiff's blood pressure was hypertensive, which is not consistent with sepsis, rather than hypotensive, which would have been consistent with sepsis. Moreover, Dr. Feingold asserted that, inasmuch as the plaintiff manifested no changes in mental status and reported no history of vomiting at that juncture, there was no basis for Nguyen to have suspected a systemic infection such as MRSA or sepsis. Hence, Dr. Feingold opined that there was no basis for the plaintiff's contention that Nguyen failed timely to diagnose the plaintiff with a persistent abscess, an infected boil, or sepsis, noting that the appropriate treatment, "including antibiotics if deemed required, would be decided by the surgeon," who the plaintiff "was scheduled to see the following day."

Dr. Feingold expressly asserted that Nguyen did not even attempt to perform an incision and drainage procedure upon the plaintiff and that, hence, Nguyen could not be held liable for any improprieties involved in the initial procedure that Jeong had performed at Advantage Care. In this respect, he concluded that Nguyen "appropriately recognized the fact that the abscess had already been excised and drained two weeks prior and that it was indicated to refer the patient to a surgical expert." Hence, he further opined that there was no basis for the plaintiff's contention that Nguyen failed to perform a thorough and complete incision and drainage so as to completely remove the pus pockets and infection in the plaintiff's upper back, and, thus, caused pus pockets and infection to remain, or that Nguyen failed to diagnose why the plaintiff's abscess failed to improve despite the drainage and the administration of antibiotics. In fact, Dr. Feingold noted that Nguyen had concluded that further incision and drainage may indeed then have been indicated, and appropriately referred the plaintiff to a surgeon. In this respect, Dr. Feingold concluded that, in any event, the recurrence of an abscess can happen even after a prior incision and drainage, and that Nguyen was under no obligation to incise and drain the abscess at that one visit, so long as he referred the patient to for a surgical consultation, which Nguyen did, because "further treatment is best left to the hands and experience of a surgeon."

Dr. Feingold also expressly rejected the plaintiff's contention that Nguyen improperly discharged the plaintiff from his care despite signs of persistent infection, and that Nguyen failed to make timely referrals to treat the abscess because Nguyen purportedly failed to recognize the signs and symptoms of sepsis and pursue the treatment of that condition. He reiterated his opinion that the plaintiff presented to Nguyen with absolutely no signs and symptoms of sepsis, such as fever, chills, tachycardia, hypotension, respiratory distress, hemodynamic instability, confusion, or altered mental status, and that this status was corroborated by Teixeira, the surgeon to whom Nguyen referred the plaintiff, who also reported no signs and symptoms of sepsis. Dr. Feingold stated that any possible evidence of acute illness was not manifested until more than three weeks after Nguyen had seen the plaintiff. He further explicitly rejected the plaintiff's claim that Nguyen failed appropriately to order additional testing or to document referrals to other physicians, since there was no active discharge evident from the abscess and, thus, no readily available fluid to culture, and because Nguyen promptly referred the plaintiff to a surgeon who would implement appropriate testing, care, and treatment. Dr. Feingold reiterated that the administration of antibiotics was properly left to the surgeon performing any further incision and drainage, who would follow up with the plaintiff, obtain cultures, and make an evaluation as to the appropriate treatment. Dr. Feingold additionally found no merit to the plaintiff's contention that Nguyen failed to take into account the plaintiff's medical history or failed to perform a proper medical workup that included bloodwork, laboratory tests, cultures, x-rays, or other imaging, or that these alleged failures caused Nguyen to fail timely to diagnose the plaintiff's symptoms. He pointed out that Nguyen correctly diagnosed the plaintiff with a history of an ongoing abscess or infectious process that was going to be promptly evaluated by a surgical team, who would then dictate the appropriate testing and treatment. Dr. Feingold opined that all of Nguyen's conduct in this respect was entirely appropriate and consistent with the applicable standard of care.

Although Dr. Feingold conceded that the plaintiff did in fact become ill with an apparently systemic infection three weeks after his one encounter with Nguyen, he opined that this outcome was not Nguyen's fault, inasmuch as Nguyen immediately referred the plaintiff to Teixeira, and because "nothing he could have done would have changed the outcome of this case." More specifically, Dr. Feingold concluded that Nguyen's record keeping was within the standard of care, that Nguyen's notes contained an appropriate and accurate history, the findings of physical examination, and the referral to the surgeon, and that nothing that Ngueyn documented or did not document was causally related to the plaintiff's claimed injuries. Inasmuch as the plaintiff was diagnosed with sepsis 25 days after his one encounter with Nguyen, and after having been examined and tested by other healthcare professionals, Dr. Feingold opined that any departures from the standard of care that may have been committed by subsequent treating physicians, nurse practitioners, or medical assistants could not be attributed to Nguyen, since a family practitioner such as Nguyen "would not supervise or follow with the patient after such referral."

Dr. Chamberlain recounted the facts underlying the plaintiff's treatment by Jeong and Nguyen at Advantage Care that Dr. Feingold already had described in detail. He explained that, on February 1, 2019, the plaintiff, who was then 41 years old, presented to Teixeira at PBS/LHH upon Nguyen's referral, at which time Teixera and his surgical team, which included surgery fellow Dimitar Ranev, M.D., and surgical physician's assistant Pandorf, evaluated the plaintiff.

Dr. Chamberlain attested that the plaintiff completed multiple forms at the February 1, 2019 visit, including the reason for his appointment and a review of symptoms, in which the plaintiff reported the presence of a painful bump on his back for the preceding two months, along with dry eyes. He concluded that the Northwell defendants obtained a proper and complete history and performed a proper and complete examination. Dr. Chamberlain asserted that, had those defendants obtained additional history or performed other, further, or additional examinations, it would not have changed the manner and method of treatment, appropriate recommendations, or the outcome of the plaintiff's treatment, since there was no evidence that the plaintiff was experiencing systemic infection during PBS/LHH's involvement. He asserted that any contention that the plaintiff may have had a fever at that time "is nothing but mere speculation," particularly in light of the plaintiff's own denial of fever and chills. Dr. Chamberlain opined that the applicable standard of care does not require recording a patient's temperature under the clinical circumstances presented by the plaintiff, in which he presented for incision and drainage of a soft tissue collection, without signs or symptoms of a systemic infection.

According to Dr. Chamberlain's reading of the PBS/LHH chart, the plaintiff denied having fever and chills, or that he was feeling poorly or tired, and denied experiencing any respiratory symptoms, including shortness of breath, any cardiovascular symptoms, including palpitations, or any gastrointestinal symptoms, including abdominal pain, nausea, or vomiting. Moreover, the plaintiff denied having experienced any musculoskeletal symptoms, including muscle aches and weakness, and reported that he was able to walk up a flight of stairs without stopping. In fact, as Dr. Chamberlain interpreted the relevant chart, the plaintiff told Teixeira's surgical team that he was "feeling well" that day, albeit that he had an abscess on his upper back, and advised the team that Jeong had previously incised and drained the mass on his back, and that Advantage Care personnel had prescribed him antibiotics, which he took, but that the abscess had returned. According to Dr. Chamberlain, the surgical team's review of the plaintiff's bodily systems was negative for any systemic conditions or infection.

As explained by Dr. Chamberlain, upon observing the abscess on the plaintiff's right upper back, Teixeira's surgical team recommended another incision and drainage of the soft- tissue collection, and a culture of the drained fluid to determine if an infectious organism was present, to identify such an organism, and to ascertain the susceptibilities of that organism to treatment with antibiotics. He asserted that, after they had obtained the plaintiff's fully informed consent to the procedure, the surgical team performed an incision and complete drainage of the soft-tissue collection under a local anesthesia injection, which he described as "without incident and with complete drainage of the abscess contents, including pus." Dr. Chamberlain concluded that the incision and drainage procedure was performed in accordance with accepted standards of surgical and medical care, inasmuch as it was performed in the "standard, sterile manner, under local lidocaine." He attested that the entire contents within the abscess were drained, a result that was "proven on examination and imaging at Coney Island Hospital" several weeks later. Dr. Chamberlain asserted that the drained contents were then sent for microbiological culture and susceptibility analysis, that the incision area was packed with gauze, and that these steps were in accordance with good and accepted surgical and medical practice. According to Dr. Chamberlain, PBS/LHH personnel instructed the plaintiff to return for a follow-up appointment for February 12, 2019, at 4:00 p.m., the appointment was, in fact, scheduled, and that this plan was within the applicable standard of care.

Dr. Chamberlain attested that microbiology culture results revealed that the abscess was infected with MRSA, which he described as a "very common skin and soft tissue infection," that was "not unexpected," and that the standard of care consisted of a complete incision and drainage. As he explained it, antibiotics can be given, but are not required, since "the infection is expected to be eradicated when the contents are drained." Dr. Chamberlain nonetheless stated that the relevant susceptibility results revealed that the plaintiff's infection was indeed susceptible to eradication by numerous antibiotics, including Bactrim, which he described as the brand name for a combination of two antibiotics, trimethoprim and sulfamethoxazole, frequently abbreviated TMP SMX. He asserted that Bactrim is one of the most common antibiotics given to patients with MRSA, inasmuch as it is often listed as one of the appropriate antibiotics on a microbiology analysis, is well tolerated by most patients, is cost efficient, and is readily available. Dr. Chamberlain averred that, on February 6, 2019, Pandorf advised the plaintiff of the result of the culture, told the plaintiff that she was ordering an antibiotic prescription for him, and called in a prescription to the plaintiff's pharmacy for a double-strength dosage of Bactrim 800-160 mg tablets, which directed the plaintiff to take two tablets every 12 hours for 7 days. She also reportedly reminded the plaintiff about his upcoming February 12, 2019 appointment. The plaintiff testified at his deposition that he did, in fact, fill a Bactrim prescription shortly after PBS/LHH personnel performed the incision and drainage procedure. Nonetheless, the plaintiff did not return to PBS/LHH for his scheduled appointment on February 12, 2019, and he testified that he continued to work for the next three weeks at his custodial job, while his chart reported that he remained well without any systemic signs or symptoms through February 18, 2019.

As Dr. Chamberlain explained it, on February 21, 2019, the plaintiff again presented to Advantage Care, where he was seen by nurse practitioner Lee, at which time he complained of vomiting, shortness of breath, and bloody diarrhea over the preceding three days. He reported to Lee that he was feeling better on that date than he had felt over the previous three days, and that he never had a fever. Nonetheless, his body temperature at that visit was 100.3 degrees Fahrenheit, while his blood pressure was 128/82, his pulse rate was 99 beats per minute, his oxygen saturation level was 95%, and he reported no pain. Lee wrote in the plaintiff's chart that he was alert, well appearing, and in no distress, and that his physical examination was "normal," with no evidence of a back abscess. Lee diagnosed the plaintiff with a "viral syndrome," formulated a plan to keep him from reporting to work until February 25, 2019, and instructed him to return to Advantage Care or to a hospital emergency department if his symptoms failed to improve or deteriorated.

Dr. Chamberlain provided additional detail concerning the plaintiff's admission to Coney Island Hospital on February 25, 2019. As he explained it, the plaintiff was taken by Emergency Medical Services personnel to the emergency department of that hospital, complaining of heart palpitations, shortness of breath, and severe generalized weakness, with an inability to get out of bed or to walk, after which the plaintiff was admitted to that hospital's intensive care unit. Laboratory testing reportedly revealed a mildly elevated white blood cell count, acute renal failure, and elevated glucose levels. According to Dr. Chamberlain, the plaintiff's condition declined very rapidly due to MRSA-induced multi-organ dysfunction and hyperglycemic hyperosmolar syndrome, rendering the plaintiff temporarily unresponsive. The plaintiff was intubated, he underwent a thoracotomy and decortication, a tracheostomy, a PEG procedure, a right lower lobe wedge resection, and a right lung biopsy that revealed infection with MRSA. An infectious disease specialist at that hospital reported evidence of a healed abscess in the plaintiff's right scapular area, but reported no discharge or fluctuation. Dr. Chamberlain attested that, "[s]ignificantly, the MRSA sepsis source remained unclear per the Coney Island Hospital infectious disease providers, including through the time of discharge." He averred that imaging studies performed at Coney Island Hospital, including magnetic resonance imaging (MRI) studies of the plaintiff's lumbar, thoracic, and cervical spine, revealed no abscesses at those locations, including at the upper back, where the abscess initially had been located, although the plaintiff did have abscesses in his lungs.

Dr. Chamberlain stated that the Coney Island Hospital discharge summary, dated June 11, 2019, had reported that the plaintiff was then a 42-year-old male with newly diagnosed diabetes, acute renal failure being treated with newly administered hemodialysis and placement of a permcath, MRSA bacteremia, hyperglycemic hyperosmolar syndrome, hypercapnic respiratory failure, and cavitations and abscess of his lungs. The discharge summary further reported that the plaintiff had been managed for encephalopathy and septic shock, that blood cultures were positive for MRSA, and that hospital personnel administered the intravenous antibiotic Vancomycin, which was changed to Cefteroline due to a rising white blood cell count, and thereafter again changed to Linezolid due to rising body temperature, a drug that was continued until his procalcitonin level was less than 0.25 micrograms per liter of blood. The summary also reported that a transesophageal echocardiogram was negative for endocarditis, while osteomyelitis was ruled out by the MRI studies. According to the discharge summary, blood cultures were negative for any bacteria or other vector beginning on March 12, 2019. As Dr. Chamberlain described it, at the time of the plaintiff's discharge, the latter was hemodynamically stable. He further asserted that the plaintiff underwent a successful cadaveric renal transplant in February 2021.

Dr. Chamberlain concluded that there was no merit to any of the plaintiff's claims regarding improper surgery and surgical management by the Northwell defendants. He asserted that, when the plaintiff presented to PBS/LHH on February 1, 2019, after a previous incomplete drainage at Advantage Care, PBS/LHH personnel took an appropriate history and performed an appropriate examination, they obtained a fully informed consent from the plaintiff for the performance of a complete incision and drainage, and appropriately submitted the collection of drainage fluids for a microbiology culture and an assessment of antibiotic susceptibility, which he characterized as fully in accord with accepted standards of surgical and medical care. Moreover, Dr. Chamberlain opined that a reasonable patient in the plaintiff's situation would have consented to an incision and drainage, which he described as "the only proven method to eradicate a soft tissue collection, and to determine if it was infection," as well as to determine the susceptibility to antibiotic treatment. Dr. Chamberlain reiterated Dr. Feingold's assertion that, when the plaintiff first presented to PBS/LHH, the plaintiff was without signs and symptoms of a systemic infection, reported no such signs and symptoms, and remained without signs and symptoms thereof for several weeks thereafter, while the plaintiff continued to report to his job as a custodian. As Dr. Chamberlain explained it, PBS/LHH gave the plaintiff a follow-up appointment for February 12, 2019, but the plaintiff decided to terminate his relationship with the Northwell defendants, and to seek treatment elsewhere. According to Dr. Chamberlain, the applicable standard of care does not require a surgeon such as Teixeira, or his team, to follow up with a patient who does not return to see them.

In any event, Dr. Chamberlain opined that the care that was rendered to the plaintiff on February 1, 2019 by the Northwell defendants was proper, and that no further, other, or different care was warranted or required, nor would such care have changed the plaintiff's outcome.

Dr. Chamberlain expressly rejected the plaintiff's contention that PBS/LHH personnel administered improper or inappropriate antibiotics to the plaintiff, since antibiotic therapy for soft-tissue MRSA infections is at the physician's discretion. Dr. Chamberlain opined that administration of antibiotics to treat such a soft-tissue infection "was, and continues to be, controversial, with many medical professionals opining it is not necessary following a successful incision and drainage." In this respect, he explained that

"[s]urgeons are well trained in antibiotic therapy, and standard of care permits them to determine what, if any, antibiotics are warranted. Surgeons have the right to use their medical training, expertise, experience, and judgment to determine what, if any, antibiotic to prescribe. Further, physicians have the right to use their medical judgment in selecting an antibiotic from the list of susceptible choices, along with the manner and method of administration."

Dr. Chamberlain again noted that PBS/LHH healthcare professionals prescribed the antibiotic Bactrim to the plaintiff, characterizing it as a well-tolerated antibiotic for which the plaintiff's infection was determined to be susceptible upon culture testing, with proven efficacy in treating soft-tissue MRSA infections. He asserted that the manner, method of administration, and dosage of Bactrim "was fully in accord with accepted standards of medical care," and that the fact that the plaintiff had undergone a previous course of treatment with lesser-strength Bactrim "in no way suggests Bactrim was inappropriate, as the patient's infection persisted" even after the first round of Bactrim "because the abscess was not fully drained, and not because of the antibiotic therapy."

In addition, Dr. Chamberlain rejected the plaintiff's claims that the Northwell defendants were negligent in failing to implement further, other, or different management strategies. In this respect, he asserted that, between February 1, 2019 and February 6, 2019, the standard of care did not require a referral to infectious disease specialists, the administration of intravenous antibiotics, additional laboratory testing, including bloodwork, or admission to a hospital. Rather, he opined that such steps were "unheard of in clinical situations like this which are frequently encountered---complete drainage in a patient with no systemic infection." In fact, Dr. Chamberlain concluded that the Northwell defendants went beyond what was required by the applicable standard of care in prescribing the antibiotic Bactrim following receipt of the microbiology culture report. He stated that, inasmuch as the plaintiff remained without clinical signs of systemic infection, such additional measures would not have led to a different outcome, and that admission to a hospital at that time was a "nonsensical" option. Dr. Chamberlain ultimately concluded that, in light of the foregoing, all outpatient management and follow-up care recommended and implemented by the Northwell defendants were within the standard of care.

Dr. Chamberlain further opined that there was a "complete lack of causation" between the Northwell defendants' conduct and the plaintiff's claimed injuries. He attested that the treatment provided by the Northwell defendants was "successful," eradicating the plaintiff's upper back abscess, noting in this regard that, when the plaintiff presented to Coney Island Hospital with sepsis several weeks later, that hospital's examination, including imaging, demonstrated that the area drained by the Northwell defendants was well healed, and without evidence of infection. He explained that, if the source of the plaintiff's sepsis had been from the back abscess, the condition of his back would have gotten worse, instead of resolving. Dr. Chamberlain thus opined that the plaintiff's later development of MRSA-related sepsis was completely unrelated to the care and treatment rendered to the plaintiff by the Northwell defendants, and that to suggest otherwise would be "nonsensical."

With respect to the conduct of PBS/LHH physician's assistant Pandorf, Dr. Chamberlain opined that she acted under a supervising physician during all of her interactions with the plaintiff---specifically Drs. Teixeira and Ranev---and in accordance with accepted standards of physician assistants' and medical care. As he explained it, a physician remains responsible for the overall management of a patient, and a physician's assistant acts under the physician's supervision and guidance. He further explained that a surgical fellow such as Dr. Ranev is a licensed physician who has completed his or her surgical residency, and is qualified to supervise physician assistants. Dr. Chamberlain attested that the Northwell defendants' chart established that Drs. Teixeira and Ranev supervised the management of the plaintiff's case on February 1, 2019, including the performance of the incision and drainage, which itself was in accordance with accepted standards of care, as well as the management of the plaintiff

following receipt of the microbiology culture report, with Pandorf discussing all relevant matters with Teixeira. He further stated that she ordered Bactrim from the plaintiff's pharmacy under Teixeira's direction and in accordance with accepted standards of care.

Inasmuch as Dr. Chamberlain explained that the soft-tissue abscess for which the plaintiff had sought treatment at PBS/LHH was completely drained, healed, and resolved,

with no evidence of remaining and/or recurrent infection in the upper back, the source of the plaintiff's MRSA sepsis remained unclear and unknown even after a thorough investigation by infectious disease specialists at Coney Island Hospital.

Dr. Mandell essentially concurred, from an infectious disease standpoint, with Dr. Chamberlain's opinion that the Northwell defendants acted at all times within the applicable standard of care, and that nothing that they did or did not do caused the plaintiff to develop the MRSA-based sepsis that led to the plaintiff's additional injuries and need for aggressive treatment. He reiterated Dr. Chamberlain's opinion that the "gold standard" for treatment of a soft-tissue abscess was incision and drainage, with bacterial cultures generated to ascertain the nature of any bacterial infection and whether such infection was susceptible to treatment by certain antibiotics. Dr. Mandell opined that, following the abscess culture microbiology report that revealed an MRSA infection, the Northwell defendants managed the plaintiff in accordance with accepted standards of infectious disease medicine. He agreed with Dr. Chamberlain that antibiotics may be considered to treat an MRSA infection in a patient's soft tissue, but that they are not required, inasmuch as the role of antibiotic therapy remains controversial, with the risks potentially outweighing the benefits. He nonetheless approved of the Northwell defendants' determination to prescribe the plaintiff Bactrim 800-160mg, two tablets, twice a day for seven days, which he characterized as being in accordance with accepted standards of infectious disease medicine. As he explained it, Bactrim is a completely appropriate antibiotic to administer, and the Northwell defendants prescribed it in a dose, manner, and method of administration that was in accordance with accepted standards of infectious disease and medical care. He opined that no further or different care was required to treat the plaintiff's soft-tissue abscess, and explicitly rejected the plaintiff's claims that there should have been a consultation with an infectious disease specialist between February 1, 2019 and February 6, 2019, when the Bactrim was prescribed, or that the Northwell defendants should have administered intravenous antibiotic therapy, performed laboratory testing of the plaintiff's blood for the presence of blood-borne bacteria, or admitted the plaintiff to a hospital. In addition, Dr. Mandell asserted that, even had the Northwell defendants taken those steps, they would not have changed the course of the plaintiff's condition or affected his outcome. As he framed it,

"[e]ven if another physician would have taken a different approach by, for example, by selecting a different antibiotic choice, giving a different dosage and/or route of administration, the Lenox Hill Hospital surgical team still exercised appropriate judgment in choosing oral Bactrim, and acted within accepted standards of medical care. And moreover, there were no deviations from accepted standards of care following receipt of the culture report that caused or contributed to the alleged injuries. Further, Mr. Torres was timely contacted with the culture results by the surgical team, and advised of the plan for antibiotic therapy in accordance with accepted standards of care."

Dr. Mandell, as did Dr. Chamberlain, noted that the PBS/LHH surgical team scheduled a follow-up appointment for the plaintiff for February 12, 2019, which was a date prior to the plaintiff's anticipated completion of his course of Bactrim antibiotic therapy, which he opined was in accordance with accepted standards of medical care. He explained that the purpose of such an appointment was to evaluate the effectiveness of the antibiotic therapy, and to determine what, if any, additional treatment was warranted. He reiterated Dr. Chamberlain's recitation that the plaintiff chose not to return to the PBS/LHH surgical team, as directed, thus terminating the physician-patient relationship, after which the Northwell defendants had no further role in the care and treatment of the plaintiff. Dr. Mandell opined that the standard of care does not mandate that medical or surgical team must follow up with "no-show patients," since a patient has the right to consult and treat with medical providers of his or her own choosing.

Dr. Mandell further concurred with Dr. Chamberlain's opinion that that there was no causal connection between any of the treatment rendered by the PBS/LHH surgical team and the plaintiff's injuries. As he phrased it, despite treatment by that team that was fully in accord with accepted standards of care, three weeks later the plaintiff developed systemic sepsis, "with the infectious diseases providers at Coney Island Hospital opining that the source of the patient's sepsis remained unclear." Dr. Mandell concluded that the plaintiff's claims that further or other management or treatment regimens by the Northwell defendants would have changed the plaintiff's outcome were "completely speculative, contrary to what is known in medicine, and without merit." He explained that, not only did the plaintiff develop sepsis many weeks after discontinuing care with the PBS/LHH surgical team, but that multiple other appropriate antibiotics subsequently administered to the plaintiff at Coney Island Hospital, including intravenous Vancomycin and Ceftaroline, similarly failed to eradicate the plaintiff's infection.

In his affirmation, Schwartz explained that the correct name of the defendant North Shore LIJ Medical, P.C., is North Shore-LIJ Medical, P.C. (NS/LIJ), and that this entity does not provide or render patient care, has never provided or rendered patient care, does not employ healthcare providers or control the manner in which treatment is rendered to patients, and does not and has never employed any of the individual defendants or anyone who had rendered care to the plaintiff. Schwartz further attested that NS/LIJ does not maintain insurance coverage for medical malpractice claims, and that the type and amount of professional liability insurance available is not affected by whether or not NS/LIJ remains a named party to this action.

In opposition to the motions of Nguyen, the Advantage Care defendants, and the Northwell defendants, the plaintiff submitted a counterstatement of material facts, an attorney's affirmation, and the expert affirmation of a board-certified general surgeon, who attested that he or she had diagnosed and treated numerous patents with MRSA subcutaneous abscesses, was knowledgeable as to the importance of timely and adequate drainage of such purulent collections to prevent invasive MRSA infection and sepsis, and had frequently prescribed pharmacological therapies for subcutaneous abscesses and MRSA-infected wounds. The expert further attested that he or she also was familiar with the interpretation of bacterial culture and sensitivity reports, and had "routinely ordered antibiotics for treatment of MRSA infections based on such results." The plaintiff also relied on many of the submissions already in the record that had been submitted by the various defendants.

Although the plaintiff's expert rendered opinions that Jeong and Lee committed malpractice in the course of their work for the Advantage Care defendants, the court notes that the Advantage Care defendants limited their motion so as to seek summary judgment dismissing the complaint insofar as asserted against them only to the extent that the plaintiff sought to impose liability upon them for Nguyen's alleged malpractice. Hence, the court will not address the opinions rendered by the plaintiff's expert with respect to Jeong's or Lee's purported malpractice, or with respect to the institutional Advantage Care defendants' vicarious liability for the purported negligence of Jeong on January 16, 2019 and Lee on February 21, 2019. Rather, the court will limit its analysis of the institutional Advantage Care defendants' potential liability to Nguyen's alleged malpractice in connection with the plaintiff's January 31, 2019 visit, which was the plaintiff's only encounter with Nguyen.

The plaintiff's expert essentially reiterated the detailed recitation of the facts underlying the plaintiff's treatment by the several defendants, as set forth in the affirmations of Drs. Chamberlain and Mandell. He opined that Nguyen departed from good and accepted medical practice on January 31, 2019 by failing to recognize the signs and symptoms of a progressing infection, failing to arrange for in-hospital care on that date so that the plaintiff could undergo surgical drainage of his back abscess, have culture and sensitivity cultures taken of the fluid that was drained, have a consultation with an infectious disease specialist, and undergo a full course of intravenous antibiotics. The expert further concluded that the Northwell defendants departed from good and accepted practice on February 1, 2019, February 4, 2019, February 5, 2019, and February 6, 2019 by failing to heed the plaintiff's history of an "inadequately drained smoldering" back abscess, by failing to provide proper intravenous antibiotic treatment to counteract the invasive infection and high risk for MRSA sepsis, by failing to obtain a consultation with an infectious disease specialist, by failing to provide in-hospital treatments and monitoring, and by negligently prescribing and ordering only oral double-strength Bactrim on February 6, 2019 after receiving the results from the abscess cultures that were positive for MRSA. The plaintiff's expert additionally opined that these departures were substantial factors and competent producing causes of the injuries claimed by the plaintiff, including, but not limited to, the progression and worsening of the infection arising from the plaintiff's back abscess, bacteremia, systemic MRSA sepsis, septic shock, critical illness, multiple organ failure, hyperglycemic coma, respiratory failure with MRSA lung abscesses, thoracotomy and decortication surgery, tracheostomy, the insertion of a PEG feeding tube, kidney failure, hemodialysis, prolonged hospital confinement and rehabilitation placement, kidney transplant, extremity weakness and foot drop, and long-term job-related disability.

According to the plaintiff's expert physician, the plaintiff's back abscess that was first reported in January 2019 "might seem minor at first, but because it was incompletely drained and inadequately treated by Defendants, the organism that was ultimately identified as MRSA became invasive and entered Mr. Torres' blood stream causing him to needlessly suffer the ravages of systemic sepsis." As the expert phrased it, the plaintiff's poorly treated and improperly managed abscess served as a reservoir for bacteria, leading to systemic infection throughout his body. The expert physician explained that, without prompt diagnosis and treatment, bacterial sepsis can escalate quickly, leading to organ failure and death.

The plaintiff's expert essentially agreed with Drs. Chamberlain and Mandell that Jeong did not completely drain the fluid collection in the plaintiff's abscess on January 16, 2019. Although the expert asserted that Bactrim might have been an appropriate antibiotic to administer at that juncture, the incomplete drainage of the abscess rendered the antibiotic ineffective in eradicating the evolving infection, since the residual pocket or pockets of pus acted as a barrier that prevented antibiotics from entering the undrained collections of pus and killing bacteria therein. According to the plaintiff's expert, when the plaintiff returned to the Advantage Care defendants and saw Nguyen on January 31, 2019, the plaintiff's still-infected abscess was essentially poorly treated and undertreated for weeks, making the plaintiff a high risk for invasive infection. The plaintiff's expert opined that Nguyen departed from the applicable standard of care by failing to recognize and heed the plaintiff's high risk for invasive infection from his partially drained back abscess, and the concomitant high risk for bacteremia and resultant life-threatening sepsis and organ dysfunction. As the expert described it, the January 31, 2019 outpatient visit to Advantage Care was an "inflection point," where, with proper action, Nguyen "could and should have prevented" the plaintiff's "downward spiral into near-fatal sepsis." The expert averred that MRSA is known to be an antibiotic resistant, highly-invasive bacterium that can overwhelm a host's immune system if early diagnosis and treatment is delayed. The plaintiff's expert asserted that Nguyen compounded Jeong's failure to perform a culture of the pus on January 16, 2019. While the expert conceded that it was appropriate for Nguyen to refer the plaintiff to surgery for completion of the abscess drainage, Nguyen departed from the standard of care by failing to arrange immediate in-hospital care with surgical drainage of the back abscess, culture and sensitivity testing, an infectious disease consult, and a full course of the intravenous antibiotics Vancomycin  ³ and/or Daptomycin. As the expert explained it, intravenous antibiotics, as opposed to less efficacious oral antibiotics, are well accepted as a means of rapidly accumulating high concentrations of a bacteria-fighting drug into the blood stream and tissues. The expert asserted that Nguyen

"could have met the standard of care by simply referring Mr. Torres to an ED (emergency department) for in-hospital treatments for his condition. Had he done so, to a reasonable degree of medical certainty, surgical drainage and a full course of intravenous antibiotics would have avoided Mr. Torres' full blown sepsis and avoided, or at worst mitigated, permanent organ damage. Because Mr. Torres' back abscess was left smoldering and incompletely drained for two weeks, continuing outpatient care at this point was both negligent and dangerous for the patient, and a substantial factor in causing the injuries claimed herein. By not taking the above actions in the setting of a known incompletely drained abscess and with a patient who progressively became symptomatic and showed early signs of worsening, systemic infection (including, persistent pain located at the abscess source, low-grade fever, the enlarged size of the back abscess, and no improvement in the condition of the abscess after having competed a full course of oral antibiotics), Dr. Nyugen departed from good and accepted standards of medical care and practice."

The plaintiff's expert faulted the Northwell defendants for failing to admit the plaintiff to LHH as an inpatient on February 1, 2019, despite the plaintiff's physical presence at LHH on that date, which the expert characterized as a departure from the standard of care and a substantial factor in causing him to suffer MRSA sepsis and multiorgan dysfunction. In this respect, the expert noted that the PBS/LHH chart indicated that the plaintiff was tachycardic with a pulse of 100, which the expert described as a "septic heart rate," and that, despite the fact that the plaintiff was presenting with an abscess, which is indicative of infection, the Northwell defendants never recorded the plaintiff's body temperature to see if he had a fever, which was particularly problematic because the plaintiff's abscess was by then 3 inches, that is, 7.6 cm, long, or more than double the 3 cm size that Nguyen had documented only one day earlier. According to the expert, the infection was rapidly worsening, thus placing the plaintiff at increasing risk for sepsis. Moreover, the plaintiff's expert opined that the oral, double-strength Bactrim that Pandorf ordered on February 6, 2019, at Teixeira's behest, "was wholly inadequate to control the invasive infection which had now spread beyond the localized abscess." The expert opined that the Northwell defendants deviated from accepted practice in these respects.

The plaintiff's expert asserted that the plaintiff's presentation of a not-fully-drained abscess and tachycardia on February 1, 2019, without any measurement of the plaintiff's body temperature, "clearly defeats the opinion of defendant's surgical expert Dr. Chamberlain" that the plaintiff did not "meet criteria for hospital admission as he remained without signs or symptoms of systemic infection." The expert opined that the Northwell defendants committed malpractice on that date by failing to initiate a regimen of intravenous antibiotics and failing to obtain a consultation with an infectious disease specialist. The expert asserted that these measures were required even after those defendants fully drained the abscess because "a collection of undrained pus had been allowed to remain festering in Mr. Torres' back for weeks." The plaintiff's retained expert further opined that the risk of invasive, systemic infection and sepsis was so high that more efficacious treatments were needed beyond oral antibiotics and outpatient visits, and that the plaintiff required a higher, more acute, level of care that only consultations with infectious disease specialists and other surgeons, along with repeated laboratory blood testing, additional wound, pus, and fluid cultures, and in-patient care could provide to control the infection source and address the dissemination of the infection.

The plaintiff's expert expressly took issue with Dr. Feingold's conclusion that, on January 31, 2019, Nguyen "appropriately recognized the fact that the abscess had already been excised and drained two weeks prior," because the Advantage Care chart clearly indicated that the drainage was incomplete, indicating that only "[m]ost of the pus was removed, [and] there was a residual pocket of pus that was not drainable." Although the expert agreed with Dr. Feingold's conclusion that, on January 31, 2019, the plaintiff was not yet septic, the expert strongly disagreed with Dr. Feingold's conclusion that, although the plaintiff subsequently "became ill and had an apparently systemic infection several weeks later, this was no fault of Dr. Nguyen" due to Nguyen's surgical referral. In this respect, the expert asserted that

"On January 31, Dr. Nguyen noted that '[h]e was seen fourteen days ago and attempted drainage and antibiotics with no improvement.' The 'mass' on his back now measured 3 x 3 cm and was painful, a sign of progressing infection. Because Mr. Torres' infected abscess was essentially poorly and under treated for weeks, he was a high risk for invasive infection and systemic sepsis. It did not matter that frank sepsis had not yet occurred. The standards of medical practice required defendant Nguyen to take the necessary steps to prevent the patient from developing life-and organ threatening sepsis, including sending him to a hospital ED for admission, surgical drainage, culture and sensitivity, intravenous antibiotics and infectious disease consult. The surgical referral was but one of the necessary steps that Dr. Nguyen was required to do pursuant to standard of care. As previously discussed, the standards of medical practice required much more."

The plaintiff's expert further disagreed with Dr. Chamberlain's opinion that, because the abscess was completely drained by PBS/LHH personnel on February 1, 2019, and because the plaintiff evinced no systemic infection at that juncture, it was unnecessary to administer intravenous antibiotics, obtain a consultation with an infectious disease specialist, or hospitalize the plaintiff. In support of this opinion, the plaintiff's expert explained that Dr. Chamberlain disregarded the fact that the size of the abscess had recently doubled, indicating that the infection was rapidly worsening, particularly in light of the positive culture for MRSA that PBS/LHH healthcare personnel had grown, which was reported on February 4, 2019. At that later juncture, according to the plaintiff's expert, the Northwell defendants should have switched the plaintiff's antibiotic regimen to a strong, intravenous antibiotic.

The plaintiff's expert also rejected Dr. Chamberlain's opinion that "the treatment provided by the Lenox Hill Hospital defendants was successful, eradicating the patient's upper back abscess." The expert explained that Dr. Chamberlain ignored the fact that the MRSA back abscess, "which had smoldered and worsened for weeks due to inadequate drainage and treatment," became invasive, entered the blood stream, and led to MRSA bacteremia, causing the plaintiff to go into septic shock, with critical organ dysfunction. According to the plaintiff's expert, the completion of the abscess drainage "was but one step towards preventing disaster," but the Northwell defendants improperly stopped at that point, and departed from good practice by failing to admit the plaintiff to the hospital, failing to administer efficacious intravenous antibiotics, and failing to obtain a consultation with an infectious disease specialist. The expert expressly disagreed with Dr. Chamberlain's conclusion that, at Coney Island Hospital, "the source of the patient's MRSA sepsis remained unclear and indetermined," which, according to the expert, ignored the culture grown at LHH from a fluid sample taken from the abscess on February 1, 2019 that was positive for MRSA. The expert explicitly concluded that the back abscess was, in fact, the entry point and source for the plaintiff's MRSA sepsis, and noted that multiple entries in the Coney Island Hospital chart referred to MRSA as the source of plaintiff's sepsis and bacteremia.

The plaintiff's expert also disagreed with Dr. Mandell's opinion that "[a]ntibiotics should not be ordered unless there is a clear indication, given the known risks of antibiotic therapy including development of antibiotic resistance infections including fatal multidrug resistant organisms (MDRO) which have been termed by some as superbugs." The expert asserted that Dr. Mandell ignored the fact that the plaintiff already was suffering from an antibiotic-resistant superbug as the causative bacterium, which was proven by the February 1, 2019 culture and sensitivity analysis. As the expert framed the issue, "[w]ith a confirmed MRSA infection, the failure to administer efficacious intravenous antibiotic therapy for Mr. Torres' superbug constituted a departure from accepted standards that was both irresponsible and a violation of patient safety."

The plaintiff's expert did not address the issues of whether any of the defendants proceeded in treating the plaintiff in the absence of the latter's fully informed consent, or whether any of the institutional defendants negligently hired, trained, supervised, or retained healthcare personnel.

In reply, Nguyen submitted an attorney's affirmation, in which counsel argued that the affirmation of the plaintiff's expert was conclusory, speculative, and failed to address specific assertions made by Nguyen's expert. Counsel contended that

"[p]laintiff's expert, a surgeon, agrees that a surgeon referral was appropriate, at the time Dr Nguyen saw the plaintiff. Dr. Nguyen, a family medical doctor, recognized that the condition should be addressed surgically and made the prompt referral to a surgeon, within 24 hours and more than three weeks before the admission to the hospital. However, plaintiff's surgical expert, goes on to offer the opinion that on January 31st he should have been referred to the emergency room, where he would have had been seen by a surgeon, an excision and drainage of the abscess and a culture would have been taken to identify the bacteria. That is exactly what was done by the surgeon who saw the patient the very next day."

Counsel further argued that "if it was to be considered whether the Plaintiff should have been admitted to the hospital and/or placed on intravenous antibiotics, this would be appropriately decided by the doctors that undertook the treatment of the condition." He further contended that it was "beyond reason to criticize Dr Nguyen when it is admitted that a surgeon is the appropriate referral, the patient was seen immediately, and excisional drainage was performed, and a culture taken. Dr Nguyen saw the patient on a single visit in an acute care setting. He made sure the patient received the appropriate referral promptly." Counsel further suggested that a surgeon was not engaged in a specialty that would permit him or her to opine on the care rendered by a family medicine practitioner.

The Northwell defendants also submitted an attorney's affirmation in reply, in which their counsel made similar contentions as Nguyen's attorney as to the quality and sufficiency of the affirmation of the plaintiff's expert, and also contended that, inasmuch as the plaintiff did not submit an affirmation from an infectious disease specialist, the affirmation of the plaintiff's expert surgeon, standing alone, was insufficient to raise a triable issue of fact as to whether Teixeira, also a surgeon, departed from good and accepted practice or proximately caused injury.

The court concludes that all of the defendants made the necessary prima facie showings of entitlement to judgment as a matter of law with their submissions, which included their experts' affirmation. The court, in the exercise of its discretion (see Guzman v 4030 Bronx Blvd. Assoc., LLC, 54 AD3d 42, 49 [1st Dept 2008]), nonetheless concludes that the plaintiff's expert was, in fact, qualified by training, education, and experience to render all of the opinions set forth in his affirmation (see Fuller v Preis, 35 NY2d 425, 431 [1974]; Bartolacci-Meir v Sassoon, 149 AD3d 567, 572 [1st Dept 2017]; Bickom v Bierwagen, 48 AD3d 1247,1248 [4th Dept 2008]; Julien v Physician's Hosp., 231 AD2d 678, 680 [2d Dept 1996]; Matter of Enu v Sobol, 171 AD2d 302, 304 [3d Dept 1991]; Joswick v Lenox Hill Hosp., 161 AD2d 352, 355 [1st Dept 1990]), since he or she attested to having treated and prescribed antibiotics for numerous MRSA infections as part of his or her experience as a surgeon, which is not far removed from the obligations of a family medicine practitioner. Moreover, the Northwell defendants' contention that the plaintiff was required to submit the affirmation of an infectious disease specialist is misplaced, since the plaintiff's expert, as a surgeon, was criticizing the Northwell defendants' own surgeons for failing to switch his antibiotics from pills to stronger, intravenous antibiotics, for failing to obtain a consultation from an infectious disease specialist, and for failing to hospitalize the plaintiff for emergent treatment of a spreading infection, which necessarily would have involved treatment by an infectious disease specialist.

Assuming, without deciding, that the affirmation of the plaintiff's expert raised a triable issue of fact as to whether Nguyen departed from good and accepted practice by failing immediately to admit the plaintiff to a hospital emergency room on January 31, 2019, failing immediately to order a culture of the drainage fluid, or failing immediately to initiate intravenous antibiotic therapy, the court concludes that the affirmation failed to raise a triable issue of fact as to whether any of these purported departures caused or contributed to the plaintiff's injuries. The plaintiff's expert did not explain how the less-than-24-hour delay between the plaintiff's encounter with Nguyen and the plaintiff's presentation to Teixeira, at which a culture was indeed ordered and the abscess was indeed incised and drained, ineluctably led to the MRSA-based sepsis that the plaintiff experienced several weeks later. The court agrees with Nguyen that, by referring the plaintiff to a surgeon such as Teixeira for an appointment less than 24 hours later, Nguyen satisfied the applicable standard of care, and that it was Teixeira's responsibility to perform an additional incision and drainage, undertake a proper culture, perform necessary testing, prescribe and administer appropriate antibiotics, and determine whether or not to obtain an infectious disease consultation or hospitalize the plaintiff. In light of the incredibly short interval between Nguyen's one encounter with the plaintiff, and the plaintiff's presentation to Teixeira, the court concludes that Teixeira's assumption of these obligations constituted a superseding event that relieved Nguyen of liability for any failure to perform the tasks that the plaintiff's expert opined should have been performed, particularly in light of the opinion of the plaintiff's expert that referral to a surgeon was appropriate. Hence, Nguyen must be awarded summary judgment dismissing the medical malpractice cause of action insofar as asserted against him.

Since Nguyen also established that he did not perform any procedure upon the plaintiff, and because a lack of informed consent cause of action may not be based on a failure to diagnose, failure to treat, or failure to refer a patient, he made the necessary prima facie showing of entitlement to judgment as a matter of law in connection with the lack of informed consent cause of action. Since the plaintiff did not address this cause of action in his opposition papers, he has failed to raise a triable issue of fact with respect thereto, and summary judgment must be awarded to Nguyen dismissing that cause of action insofar as asserted against him. Furthermore, the record reflects that Nguyen was not responsible for hiring, training, supervising, or retaining healthcare personnel and, in the absence of any discussion of such a claim in the plaintiff's opposition papers, that claim must be summarily dismissed insofar as asserted against him. Because the institutional Advantage Care defendants moved for summary judgment dismissing the complaint insofar as asserted against them only to the extent that the plaintiff sought to hold them vicariously liable for Nguyen's wrongdoing, and the court is awarding summary judgment to Nguyen dismissing the complaint insofar as asserted against him, the Advantage Care defendants' motion must also be granted.

That branch of the Northwell defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against Pandorf must be granted. "Generally, a hospital's residents, physician's assistants, and nursing staff are not liable for alleged malpractice in assisting a private attending physician" (Perez v Punukollu, 88 Misc 3d 1261[A], 2026 NY Slip Op 50607[U], *7, 2026 NY Misc LEXIS 3998, *22 [Sup Ct, Kings County, Apr. 29, 2026]). "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]; see Soto v Andaz, 8 AD3d 470, 471 [2d Dept 2004]). Although a physician's assistant may be held liable for his or her own negligent acts which are the proximate cause of a patient's injuries (see Vaccaro v St. Vincent's Med. Ctr., 71 AD3d 1000, 1002 [2d Dept 2010]), here, the Northwell defendants established that Pandorf did not commit any autonomous acts that were independent of the directions that Teixeira gave to her, and, thus, established her prima facie entitlement to judgment as a matter of law with their expert affirmations, in which their experts opined that she appropriately followed Teixeira's orders, that those orders were not contraindicated by normal practice, and that she did not commit any independent acts of negligence (see id.; Martinez v La Porta, 50 AD3d 976, 977 [2d Dept 2008]). In opposition to that showing, the expert affirmation submitted by the plaintiff was insufficient to raise a triable issue of fact as to whether Pandorf should have known that any order or decision of Teixeira's was " 'so contraindicated by normal practice that [she] should have inquired into [its] correctness' " (Vaccaro v St. Vincent's Med. Ctr., 71 AD3d at 1002, quoting Ventura v Beth Israel Med. Ctr., 297 AD2d 801, 803 [2d Dept 2002]), or that any independent act of negligence on her part proximately caused the plaintiff's injuries (cf. Martinez-Rivera v Gupta, 2020 NY Slip Op 35089[U], *14, 2020 NY Misc LEXIS 19588, *19-20 [Sup Ct, Westchester County, Aug. 31, 2020] [a physician's assistant may be held liable for his own negligent acts which are the proximate cause of a patient's injuries and, where there is conflicting evidence in the record concerning whether the physician's assistant "truly acted autonomously, and without negligence," the assistant's motion must be denied]).

The Northwell defendants also established, prima facie, that NS/LIJ did not provide medical care or treatment to any patients, including the plaintiff here, and employed no one for the purpose of providing medical care or treatment. They thus established that NS/LIJ cannot be held liable for medical malpractice and, hence, was an improper party to this action (see Vargas v Goez, 2025 NY Slip Op 34918[U], *2-3, 2025 NY Misc LEXIS 10336, *3-4 [Sup Ct, NY County, Dec. 15, 2025] [Kelley, J.]; Waheed v Barar, 2025 NY Slip Op 33477[U], *7, 2025 NY Misc LEXIS 7633, *11 [Sup Ct, NY County, Sep. 15, 2025] [Kelley, J.]; Koller v Kolev, 2025 NY Slip Op 32869[U], *27, 2025 NY Misc LEXIS 6776, *50-51 [Sup Ct, NY County, Jul. 18, 2025] [Kelley, J.]; Vallone v Vulcano, 2022 NY Slip Op 32099[U], *16, 2022 NY Misc LEXIS 11310, *29-30 [Sup Ct, NY County, Jun. 30, 2022] [Kelley, J.]; Garcia v Global Prop. Servs., Inc., 2018 NY Slip Op 30957[U], *7-8, 23, 2018 NY Misc LEXIS 1870, *9-10, 34 [Sup Ct, Bronx County, Apr. 3, 2018]). The plaintiff failed to raise a triable issue of fact in opposition to that showing and, hence, that branch of the Northwell defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against NS/LIJ must be granted.

Moreover, the Northwell defendants established, prima facie, that the consent that they obtained from the plaintiff to undertake the February 1, 2019 incision and drainage procedure was qualitatively sufficient, and that no cause of action to recover for lack of informed consent lies in connection with a failure to diagnose, failure to treat, failure to test, or failure to refer a patient to other specialists or physicians. In opposition to that showing, the plaintiff's expert did not address that issue and, hence, summary judgment must be awarded to the Northwell defendants dismissing the lack of informed consent cause of action insofar as asserted against all of them. Similarly, the record reflects that all of the persons employed by the Northwell defendants were properly credentialed, hired, trained, supervised, and retained, and the plaintiff's failure to address that issue in his opposition papers requires summary judgment to be awarded to the Northwell defendants dismissing the claim to recover for negligent hiring, training, supervision, and retention insofar as asserted against them.

Nonetheless, the court concludes that, contrary to the Northwell defendants' contentions, the plaintiff raised a triable issue of fact as to whether Teixeira departed from the standard of care applicable to surgeons by failing to recognize that the plaintiff's abscess was increasing in size, failing to recognize that the plaintiff exhibited signs and symptoms of incipient sepsis, such as tachycardia, despite the positive culture for MRSA bacteria, by failing further to assess the plaintiff for the spread of the bacteria by taking his temperature or performing laboratory blood testing for the presence of bacteria, by failing to obtain a consultation with an infectious disease specialist, by failing to initiate a regimen of intravenous antibiotic therapy with appropriate antibiotics in light of the fact that the administration of two rounds of Bactrim to the plaintiff had not retarded the recurrence or growth of an abscess that was positive for MRSA, and by failing to admit the plaintiff to LHH or to another hospital for emergent treatment. The court further concludes that the plaintiff raised a triable issue of fact as to whether those departures were competent producing causes of his systemic infection with MRSA bacteria and resultant sepsis, and all of the concomitant sequelae of that sepsis, including, but not limited to, his hospitalization for sepsis only 19 days after his last encounter, renal failure, and the need for a kidney transplant. The court concludes that the opinions of the plaintiff's expert were "neither conclusory nor speculative, as [they] established the elements of a medical malpractice claim by specific factual references to the care and treatment" of the plaintiff (Wiands v Albany Med. Ctr., 29 AD3d 982, 984 [2d Dept 2006]), particularly with respect to the aforementioned issues. It is well settled that a battle of experts, such as presented here, raises credibility issues which must be resolved by a fact finder and which preclude summary judgment (see Frye v Montefiore Med. Ctr., 70 AD3d at 25). Hence, that branch of the Northwell defendants' motion which was for summary judgment dismissing the medical malpractice cause of action insofar as asserted against Teixeira is denied.

" 'In general, under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of employment, but not for negligent treatment provided by an independent physician, as when the physician is retained by the patient himself' " (Valerio v Liberty Behavioral Mgt. Corp., 188 AD3d 948, 949 [2d Dept 2020], quoting Seiden v Sonstein, 127 AD3d 1158, 1160 [2d Dept 2015]; see Hill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]; Dupree v Westchester County Health Care Corp., 164 AD3d 1211, 1213 [2d Dept 2018]). "[V]icarious liability for medical malpractice generally turns . . . on agency or control in fact" (Hill v St. Clare's Hosp., 67 NY2d at 79-80). At his deposition, Teixeira testified that, during the relevant time period, he was employed by Northwell Health Partners and Lenox Hill Hospital, which later changed its name to Northwell Health. Hence, to the extent that there are triable issues of fact with respect to Teixeira's liability for departing from good and accepted practice, there are triable issues of fact as to whether Lenox Hill Hospital, sued herein as Northwell Health Physicians Partners Bariatric Surgery at Lenox Hill, may be held vicariously liable therefor.

Accordingly, it is,

ORDERED that the motion of the defendant James Nguyen for summary judgment dismissing the complaint insofar as asserted against him (MOT SEQ 002) is granted, and the complaint is dismissed insofar as asserted against him; and it is further,

ORDERED that the motion of the defendants Advantage Care Physicians New York, Advantage Care Physicians Express, Duane Street, and Flatiron District Medical Office for summary judgment dismissing so much of the complaint insofar as asserted against them as was premised upon the plaintiff's allegations that they are vicariously liable for the wrongdoing of the defendant James Nguyen (MOT SEQ 003) is granted, and so much of the complaint insofar as asserted against those defendants as was premised upon the plaintiff's allegations that they are vicariously liable for the wrongdoing of the defendant James Nguyen is dismissed; and it is further,

ORDERED the motion of the defendants Julio Teixeira, Megan Pandorf, Northwell Health Physicians Partners Bariatric Surgery at Lenox Hill, and Northshore LIJ Medical P.C., for summary judgment dismissing the complaint insofar as asserted against them (MOT SEQ 004) is granted to the extent that they are awarded summary judgment dismissing the complaint insofar as asserted against Megan Pandorf and Northshore LIJ Medical P.C., and dismissing the lack of informed consent cause of action and the claim to recover for negligent hiring, training, supervision, and retention insofar as asserted against Julio Teixeira and Northwell Health Physicians Partners Bariatric Surgery at Lenox Hill, the complaint is dismissed insofar as asserted against Megan Pandorf and Northshore LIJ Medical P.C., the lack of informed consent cause of action and the claim to recover for negligent hiring, training, supervision, and retention are dismissed insofar as asserted against Julio Teixeira and Northwell Health Physicians Partners Bariatric Surgery at Lenox Hill, and the motion is otherwise denied; and it is further,

ORDERED that, on the court's own motion, the action is severed against the defendant James Nguyen; and it further,

ORDERED that, on the court's own motion, the action is severed against the defendant Megan Pandorf; and it further,

ORDERED that, on the court's own motion, the action is severed against the defendant Northshore LIJ Medical P.C.; and it further,

ORDERED that the Clerk of the court is directed to enter judgment dismissing the complaint insofar as asserted against the defendant James Nguyen; and it is further,

ORDERED that the Clerk of the court is directed to enter judgment dismissing the complaint insofar as asserted against the defendant Megan Pandorf; and it is further,

ORDERED that the Clerk of the court is directed to enter judgment dismissing the complaint insofar as asserted against the defendant Northshore LIJ Medical P.C.; and it further,

ORDERED that, on the court's own motion, the attorneys for the remaining parties shall appear for an initial pretrial settlement conference before the court, in Room 204 at 71 Thomas Street, New York, New York 10013, on July 14, 2026, at 11:00 a.m., at which time they shall be prepared to discuss resolution of the action, the scheduling of a future two-hour, mediation-style settlement conference, and the scheduling of a firm date for the commencement of jury selection.

This constitutes the Decision and Order of the court.

DATE 6/10/2026

JOHN J. KELLEY, J.S.C.

FOOTNOTES

1.   In fact, the defendant Peter Jeong was the only Advantage Care employee who performed an incision and drainage procedure upon the plaintiff.

2.   The court notes that, while allegations of negligent hiring, training, supervision, and retention constitute a cause of action independent of a medical malpractice cause of action, that such a cause of action is subject to a three-year limitations period (see Calamari v Panos, 131 AD3d 1088, 1090 [2d Dept 2015]), and that the plaintiff did not separately plead a such cause of action, the court will address that claim as if it had been separately pleaded (see Burgos v Lau, 2025 NY Slip Op 33250[U], *2 n 2, 2025 NY Misc LEXIS 7290, *2 n 2 [Sup Ct, NY County, Aug. 28, 2025] [Kelley, J.]; Estate of Gebert v Huntington Hills Ctr. for Health, 2024 NY Misc LEXIS 51911, *16 [Sup Ct, Suffolk County, Sep. 5, 2024]; see also Taylor v Methodist Hosp., 6 Misc 3d 1008[A], 2004 NY Slip Op 51750[U], *4, 2004 NY Misc LEXIS 2898, *9 [Sup Ct, Kings County, Nov. 1, 2004] [deeming allegation of "negligent credentialing" to constitute an independent cause of action]).

3.   As it turned out, Vancomycin was ineffective in eradicating the plaintiff's MRSA infection.

John J. Kelley, J.