Lodato v New York City Health & Hosps. Corp.
2024 NY Slip Op 30939(U)
March 20, 2024
Supreme Court, Kings County
Docket Number: Index No. 528154/2019
Judge: Consuelo Mallafre Melendez
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publication.
FILED: KINGS COUNTY CLERK 03/20/2024 01:00 PM INDEX NO. 528154/2019
NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 03/20/2024
At an IAS Term, Part 7 of the Supreme Court of
the State of NY, held in and for the County of
Kings, at the Courthouse, at 360 Adams Street,
Brooklyn, New York, on the 20th day of March
2024.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF
KINGS
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VITO LODATO as the Administrator of the Estate of MARCO AMENDED
LODATO, deceased, DECISION & ORDER
Plaintiff, Index No. 528154/2019
Mo. Seq. 2 & 3
-against-
NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION, NYU LANGONE HOSPITALS, NYU
LANGONE HEALTH SYSTEM and NYU LANGONE
HOSPITAL-BROOKLYN,
Defendants.
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HON. CONSUELO MALLAFRE MELENDEZ, J.S.C.
Recitation, as required by CPLR §2219 [a], of the papers considered in the review:
NYSCEF #s: Seq. 2: 62 – 64, 65 – 86, 106, 107, 108 – 109
Seq. 3: 87 – 88, 89 – 102
Transcript of Oral Argument February 28, 2024
Defendant, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, moves
this Court for an order pursuant to CPLR § 3212 granting summary judgment and directing entry
of judgment to NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (sequence 2).
Plaintiff submitted opposition to this motion.
Defendants, NYU LANGONE HOSPITALS and NYU LANGONE HOSPITALS s/h/a
“NYU LANGONE HOSPITAL-BROOKLYN” and NYU LANGONE HEALTH SYSTEM
(hereinafter NYU Defendants), move this Court for an order pursuant to CPLR § 3212 granting
summary judgment and dismissing the plaintiff’s claims in their entirety against NYU Defendants
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and directing entry of judgment to NYU Defendants (sequence 3). This motion is unopposed.
Accordingly, the motion on behalf of NYU Defendants is granted without opposition, and all
claims against NYU Defendants are dismissed.
This case involves treatment of Mr. Lodato at South Brooklyn Health, formerly known as
Coney Island Hospital (hereinafter “NYCHHC”) during his hospitalization from January 28, 2019
through to his discharge on February 7, 2019. Mr. Lodato was admitted to NYU Langone Hospital
Brooklyn on February 8, 2024 less than 24 hours after he was discharged from Coney Island
Hospital the day prior, where he was diagnosed with a gastrointestinal hemorrhage. At the time of
his presentation to NYU, Mr. Lodato’s bleeding could not be controlled and he passed away the
same day at that hospital. Plaintiff claims that Mr. Lodato’s personal injuries and death were due
to NYCHHC’s negligent and improper treatment of the patient’s duodenal ulcer, NYCHHC’s
failure to appreciate objective signs of a gastrointestinal bleed, and a premature discharge of the
patient from their facility. Plaintiff also alleges NYCHHC: (1) failed to obtain surgical and
interventional radiology consults following the EGD on January 31, 2019 to monitor a re-bleed;
(2) failed to perform serial CBC’s on Mr. Lodato every 12 hours prior to discharge to monitor
gastrointestinal bleeding and to diagnose a duodenal ulcer; and (3) failed to perform a repeat upper
endoscopy to ensure the duodenal ulcer was appropriately treated.
“‘In order to establish the liability of a physician for medical malpractice, a plaintiff must
prove that the physician deviated or departed from accepted community standards of practice, and
that such departure was a proximate cause of the plaintiff's injuries [internal citations omitted].’”
Hutchinson v. New York City Health and Hosps. Corp., 172 AD3d 1037, 1039 [2d Dept. 2019]
citing Stukas v. Streiter, 83 AD3d 18, 23 [2d Dept. 2011]. “Thus, in moving for summary judgment,
a physician defendant must establish, prima facie, ‘either that there was no departure or that any
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departure was not a proximate cause of the plaintiff's injuries.’” Hutchinson, 132 AD3d at 1039,
citing Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 AD3d 959, 960 [2d Dept.
2015]. “Expert testimony is necessary to prove a deviation from accepted standards of medical
care and to establish proximate cause [internal citations omitted].” Navarro v. Ortiz, 203 AD3d
834, 836 [2d Dept 2022]. “‘When experts offer conflicting opinions, a credibility question is
presented requiring a jury's resolution.’” Stewart v. North Shore University Hospital at Syosset,
204 AD3d 858, 860 [2d Dept. 2022] citing Russell v. Garafalo, 189 A.D.3d 1100, 1102, [2d Dept.
2020] [internal citations omitted]. However, “expert opinions that are conclusory, speculative, or
unsupported by the record are insufficient to raise a triable issue of fact [internal citations
omitted].” Wagner v. Parker, 172 AD3d 954, 966 [2d Dept. 2019].
Defendant NYCHHC’s expert, Arnon Lambroza, M.D., a physician board-certified in
internal medicine and gastroenterology, established that they are qualified to opine as to the care
and treatment rendered to the patient at South Brooklyn Health, formerly known as Coney Island
Hospital. Plaintiff’s expert a physician board-certified in internal medicine and gastroenterology,
established that they are qualified to opine as to the care and treatment rendered to the patient by
defendants.
Defendant NYCHHC’s expert opines defendant’s plan to monitor the patient’s blood counts
every 12 hours and to transfuse, if necessary, in order to keep hemoglobin levels above 8.0 and the
platelets above 50,000; avoid antiplatelets, anticoagulation, and administration of NSAID was
proper and appropriate to ensure there was no further bleeding. The expert opines that monitoring
the blood levels for a possible bleed was the standard of care. Further, the expert opines the doctors
and staff at Coney Island Hospital monitored the patient as they recorded the patient’s hemoglobin
and hematocrit levels as stable, and their care plan was to continue current management.
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Dr. Lambroza also opines Mr. Lodato’s low hemoglobin and hematocrit levels on discharge
from Coney Island Hospital on February 7, 2019 were stable for him as Mr. Lodato’s baseline
hemoglobin and hematocrit levels were well below the reference ranges as noted in the records
from NYU-Brooklyn from December 2013 to May 2018. Moreover, Dr. Lambroza notes the
patient’s blood levels were tested on February 1, 2, 3, 4, 5, and 6, 2019 to monitor Mr. Lodato’s
hematocrit and hemoglobin levels and opines that the CIH physicians and staff appropriately
followed the decedent’s blood levels to ensure there was no further bleeding and the decedent’s
blood levels stabilized and were trending upwards with no sign of a further bleed for those seven
(7) days. Dr. Lambroza also opines Mr. Lodato did not have any signs or symptoms of an
abdominal perforation while in the care of Coney Island Hospital. Defendant’s expert opines based
on the foregoing it was appropriate to discharge Mr. Lodato on February 7, 2019.
Further, Dr. Lambroza opines a second look procedure was not necessary nor is it the
standard of care in this case when there is no indication a patient is still bleeding. The expert opines
a repeat upper endoscopy to ensure that the therapeutic approach employed (epinephrine injection,
hemostatic clipping and cautery) effectively treated the duodenal ulcer prior to discharging Mr.
Lodato is not the standard of care when the first EGD identified the source of the GI bleed, there
was no active bleeding, and no fresh blood was found. Dr. Lambroza opines the patient had no
indication of continued bleeding as there was no evidence of melena, no signs or symptoms
consistent with a continued bleed, stable vital signs, and Mr. Lodato’s hemoglobin and hematocrit
levels were trending upwards. Dr. Lambroza notes the EGD report identified “one non bleeding
cratered duodenal ulcer in the duodenal bulb with a non-bleeding visible vessel (Forrest Class IIA
ulcer).” Further, the expert opines based on the first EGD there were no other sources of upper GI
bleeding. Therefore, Dr. Lambroza opines a second look procedure was inapplicable here.
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Based on the findings noted above, Dr. Lambroza opines none of the treatment rendered to
Mr. Lodato at Coney Island Hospital from January 28, 2019 through February 7, 2019 was the
proximate cause or a substantial factor in Mr. Lodato’s injuries or death.
Upon the opinions set forth by NYCHHC’s expert, Dr. Lambroza and the submissions in
support of the motion, the court finds that the movants established their prima facie burden for
summary judgment.
In opposition, Plaintiff’s expert opines a “non-bleeding visible vessel (Forrest IIA) requires
endoscopic therapy as the first therapeutic course of treatment followed by consultation from
interventional radiology and surgery for further definitive treatment”. The expert further opines
“the presence of a visible vessel and its large ulcer size (30mm) suggested that there was a high
probability of a re-bleed despite the therapy employed by Drs. Wagner and Trillo.” Plaintiff’s
expert opines a surgical consult and interventional radiology consult were required for surgical
definitive treatment in this instance as a re-bleed was likely with the large ulcer that had developed.
The expert opines such failure to obtain a surgical and interventional radiology consultation for
the patient following the performance of the EGD on January 31, 2019 was negligent and improper
treatment of the duodenal ulcer and led to Mr. Lodato’s re-bleed and death on February 8, 2019.
The expert opines had the consultation taken place, the severity of Mr. Lodato’s ulcer would have
been appreciated to mitigate a re-bleed. Also, the expert opines Mr. Lodato had two ulcers and
notes the chart has multiple entries identifying two ulcers, not only one.
Plaintiff’s expert also opines the standard of care “for patients who are diagnosed with a
large duodenal ulcer with a visible vessel is to monitor the H&H (hemoglobin and hematocrit)
every 12 hours while they remain hospitalized.” The expert elaborates on this by stating that the
12-hour check of the H&H values can identify whether there is development of a gastrointestinal
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bleed as abnormally low values would indicate bleeding. Plaintiff’s expert indicates that based on
the MICU records on February 2, 2019, there was a GI recommendation to check CBC every 12
hours. (NYSCEF Doc. 77, page 57). The expert opines that despite this order, Mr. Lodato’s CBC
levels were taken every 24 hours and that this was a departure of the standard of care of the patient
who was at high risk of a re-bleed. Specifically, the Coney Island Hospital record notes the last
CBC was collected on February 6, 2019 at 9:56am and that Mr. Lodato was discharged on February
7, 2019 at 13:13. (NYSCEF Doc. 79, page 243; Doc. 77, page 2). Plaintiff’s expert states that this
record shows that the last H&H lab value was taken more than 12 hours since the last CBC
collection. The expert opines that this indicates the defendants did not comply with the GI
recommendation that CBC values be checked every 12 hours. Significantly, Plaintiff’s expert also
notes that the record indicates that on Mr. Lodato’s last day of admission on February 7, 2019, his
CBC was not tested. Thus, he opines that not checking the patient’s H&H levels before discharge
is another departure from the accepted standard of care and such failure was a factor in causing the
patient’s bleed and death.
Additionally, the expert opines Mr. Lodato’s H&H values were abnormally low when
collected after the procedure and if a CBC had been taken on February 7, 2019, the results would
have been low enough to investigate a gastrointestinal bleeding source and the diagnosis of the
duodenal ulcer would have been made prior to the ulcer’s erosion which resulted in a hemorrhage
and the patient’s death. The expert notes Mr. Lodato’s hemoglobin and hematocrit levels were
abnormal throughout Mr. Lodato’s hospitalization at Coney Island Hospital and this alone is
objective evidence of a possible bleed. Furthermore, the expert opines had an investigation into
gastrointestinal bleeding been made prior to his discharge Mr. Lodato could have undergone
endovascular angiography or surgical intervention to treat the duodenal ulcer to prevent erosion of
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the ulcer, a massive hemorrhage, and Mr. Lodato’s death. Thus, Plaintiff’s expert opines Mr.
Lodato was prematurely and negligently discharged.
Plaintiff’s expert opines defendant’s failure to repeat an upper endoscopy to ensure that the
endoscopic therapeutic treatment was effective in treating the ulcer with a visible vessel constituted
a departure from accepted standard of care and was a substantial contributing factor to Mr. Lodato’s
demise. The expert opines the signs of erosion to the muscle layer would take days to progress and
a second endoscopy would have revealed endoscopically the gravity of Mr. Lodato’s condition
before the ulcer perforated which caused the uncontrollable bleed that led to Mr. Lodato’s death.
Plaintiff’s expert supports this opinion on the basis that 24 hours after plaintiff was discharged
from Coney Island Hospital an emergent EGD at NYU found the same duodenal ulcer had eroded
down to the muscle layer of the duodenum and there was questionable full thickness defect
adjacent to a large and pulsating vessel.
Additionally, plaintiff’s expert opines that another departure was that the
gastroenterologists did not examine Mr. Lodato after February 1, 2019, and further, that he was
discharged on February 7, 2019, not being examined by them. The expert also opines that Mr.
Lodato was treated in the first instance in part because of maroon-colored stools on clinical exams
and yet, after the first EGD the patient’s stool was not evaluated for indications of blood. The
expert opines evaluation of the patient’s stool for blood would indicate a re-bleed. Based on the
foregoing, plaintiff’s expert opines NYCHHC had no objective evidence the endoscopic therapy
was effective in treating the duodenal ulcer with a visible vessel and opines that not performing a
second upper endoscopy prior to discharging Mr. Lodato was a departure from the accepted
standard of care as it would have revealed the procedure was ineffective and would have prevented
the patient’s massive hemorrhage and death.
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As discussed above, the expert opines in detail that these failures were substantial factors
in causing Mr. Lodato’s injuries and death.
Through the plaintiff’s expert’s affirmation, which is very detailed and non-speculative,
issues of fact are raised as to defendant NYCHHC’s liability and proximate cause of plaintiff’s
injuries and death. Plaintiff’s expert raises an issue of fact with his opinion that a surgical consult
and interventional radiology consult were required to comport with the standard of care as Mr.
Lodato was at high risk of a re-bleed due to the Forest IIA ulcer found, which in his opinion has a
high-risk bleeding recurrence. It is noted that defendant’s expert, Dr. Lambroza does not opine on
whether a surgical and interventional radiology consultation was the standard of care. On this
question, Defendant’s expert opines the standard of care was only to monitor the H&H levels which
in this case were found to be stable and determined the continued course of treatment was to
continue current management.
Assuming the standard of care was only to monitor the H&H levels, plaintiff’s expert
indicates there are no records to support that Mr. Lodato’s CBC levels were checked every 12
hours. Plaintiff’s expert opines the 12-hour monitoring would have identified a possible bleed and
diagnosed a duodenal ulcer prior to discharging Mr. Lodato on February 7, 2019 and would have
prevented Mr. Lodato’s death. Dr. Lambroza does not opine specifically on whether the standard
of care was to monitor the CBC levels every 12 hours or whether those levels could be tested more
infrequently. This alone would be a departure from the standard of care and therefore constitutes
an issue of fact. Further, Dr. Lambroza’s opinion that NYCHHC discharged Mr. Lodato with below
H&H levels stating that it was his baseline based on medical records from 2013 to 2018 is a
retrospective analysis as Defendant NYCHHC did not have records of CBC lab values from 2013
to 2018 to form their opinion when they discharged Mr. Lodato on February 7, 2019.
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Plaintiff’s expert also refutes Dr. Lambroza’s conclusion that the second endoscopy was
not necessary or the standard of care as they opine that a repeat upper endoscopy remains the
standard of care, and that had it been performed prior to Mr. Lodato’s discharge on February 7,
2019 the procedure would have revealed a duodenal ulcer with a visible vessel. Based on the
medical evidence in this case, Plaintiff’s expert’s opinion that the therapeutic approach treatment
given to Mr. Lodato on January 31, 2019 by Drs. Tillo and Wagner was ineffective contradicts that
submitted by Dr. Lambroza. There are also contradicting opinions as to whether the second
endoscopy is the standard of care to identify signs of erosion of the ulcer prior to it perforating the
muscle layer and causing his hemorrhage and death.
Based on the above, the court finds that Plaintiff’s expert’s opinions are well based on the
facts and raise issues of fact as to whether the moving defendant departed from the standard of
care and whether these departures were a substantial factor in causing the injuries and death to the
decedent. Considering the foregoing conflicting opinions, which are detailed and not speculative,
summary judgment is denied as all claims sounding in medical malpractice relating to defendants
NYCHHC. “In order not to be considered speculative or conclusory, expert opinions in opposition
should address specific assertions made by the movant's experts, setting forth an explanation of
the reasoning and relying on specifically cited evidence in the record”. McHale v. Sweet, 217 AD3d
666, 668 [2d Dept 2023] quoting Templeton v. Papathomas, 208 A.D.3d 1268, 1270 – 1271 [2d
Dept 2022][internal quotation marks omitted]; see also Tristan v. New York Community Hosp., 154
A.D.3d 994, 996 [2017]. “Summary judgment is not appropriate in a medical malpractice action
where, as here, the parties adduce conflicting medical expert opinions. ‘Such credibility issues can
only be resolved by a jury.’” Castillo v. Surasi, 181 AD3d 786, 788 -789 [2d Dept 2020], citing
Feinberg v. Feit, 23 A.D.3d 517, 519 [2d Dept. 2005].
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In reference to the claim of lack of informed consent, Defendant NYCHHC established
their prima facie entitlement to summary judgment through their expert’s affirmation, which is
detailed and non-speculative. However, Plaintiff’s expert does not mention the claim of informed
consent in their affirmation and it is therefore, unopposed. As such, the motion for summary
judgment on this cause of action must be granted. “Where a party fails to oppose some or all
matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers
may be deemed admitted as there is, in effect, a concession that no question of fact exists.” 144
Woodbury Realty, LLC v. 10 Bethpage Rd., LLC, 178 A.D.3d 757, 761-62 [2d Dept 2019].
Accordingly, NYU Defendants’ motion for Summary Judgment is GRANTED; and
NYCHHC Defendant’s motion for Summary Judgment is GRANTED ONLY TO THE EXTENT
that Informed Consent is dismissed; and it is DENIED in all other respects.
The Clerk is directed to enter judgment in favor of NYU LANGONE HOSPITALS and
NYU LANGONE HOSPITALS s/h/a “NYU LANGONE HOSPITAL-BROOKLYN”, and NYU
LANGONE HEALTH SYSTEM.
This constitutes the decision and order of the court.
ENTER.
_______________________________
Hon. Consuelo Mallafre Melendez
J.S.C.
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