Bilajac v. Fariwa

2024 NY Slip Op 51048(U)

Lejla Bilajac, as the Administrator of the Estate of OSCAR EDUARDO EUCEDA, JR., deceased, Plaintiff, v. Victor Zaki Fariwa, M.D., AMY ROSE MATHEW, M.D., EMERGENCY MEDICAL SERVICES OF NEW YORK CITY FIRE DEPARTMENT, CITY OF NEW YORK, CONEY ISLAND HOSPITAL, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and MAIMONIDES MEDICAL CENTER, Defendants.

Index No. 501964/2019

Supreme Court, Kings County

August 12, 2024

Unpublished Opinion

Plaintiff

Aleksey Feygin, Esq. (alekseyfeygin@adbokat.com)

Mark M. Basichas & Associates P.C.

Defendant Victor Zaki Fariwa, M.D.

Joy Woda Schneider, Esq. (jschneider@kerleywalsh.com)

Kerley, Walsh, Matera & Cinquemani, P.C.

Defendants Amy Rose Mathew, M.D. and Maimonides Medical Center

Laura Shapiro, Esq. (laurashapiro@mcf-esq.com) McAloon & Friedman PC

Defendants Emergency Medical Services of New York City Fire Department and City of New York

Mark I. Friesz, Esq. (mafriesz@law.nyc.gov)

New York City Law Department

Defendants Coney Island Hospital and New York City Health and Hospitals Corporation

Andrew J. Pinon, Esq. (andrew.pinon@wilsonelser.com)

Wilson Elser Moskowitz Edelman & Dicker LLP

Consuelo Mallafre Melendez, J.

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

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

NYSCEF #s: Seq.9: 204 - 206, 208 - 236, 304 - 305, 306 - 312, 313 - 315

Seq. 10: 238 - 240, 241 - 265, 316

Seq. 11: 267 - 269, 271 - 288, 318

Seq. 12: 289 - 291, 292 - 298, 317

Seq. 13: 299 - 300

Defendant Victor Zaki Fariwa, M.D. ("Dr. Fariwa") moves (Seq. No. 9) for an Order, pursuant to CPLR 3212, granting summary judgment in his favor, dismissing Plaintiff's complaint against him in its entirety, and amending the caption to remove Dr. Fariwa.

Defendants Emergency Medical Services of New York City Fire Department and City of New York ("City Defendants") move (Seq. No. 10) for an Order, pursuant to CPLR 3211 (a) (7) or CPLR 3212, dismissing the complaint and all cross claims against them.

Defendants New York City Health and Hospitals Corporation ("NYCHHC") s/h/a Coney Island Hospital and New York City Health and Hospitals Corporation move (Seq. No. 11) for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's complaint against them in its entirety, or in the alternative, granting partial summary judgment as to any claims on which there are no triable issues of fact. NYCHHC also moves separately (Seq. No. 13) for an Order, pursuant to CPLR 3212, granting summary judgment in their favor on the issue of informed consent and dismissing Plaintiff's ninth cause of action.

Defendants Amy Rose Mathew, M.D. ("Dr. Mathew") and Maimonides Medical Center ("Maimonides") move (Seq. No. 12) for an Order, pursuant to CPLR 3212, granting summary judgment in their favor and dismissing Plaintiff's complaint and all cross claims against them.

Plaintiff opposes all Defendants' motions with the exception of NYCHHC's second motion (Seq. No. 13) to dismiss the ninth cause of action for lack of informed consent. That motion is accordingly granted without opposition, and the claim of lack of informed consent against NYCHHC/Coney Island Hospital is hereby dismissed.

Plaintiff commenced this action, as administrator of the estate of Oscar Eduardo Euceda Jr. ("Decedent"), on January 28, 2019, asserting claims of medical malpractice and wrongful death in connection to treatment and care rendered from December 25, 2017 through December 31, 2017.

Decedent presented to his primary care physician Dr. Fariwa on the evening of December 25, 2017 with respiratory symptoms that began two days prior, including shortness of breath, weakness, fever, chest pains, and coughing up blood. He was 27 years old with a history of obesity (weighing 384 pounds), hypertension, asthma, COPD, and sleep apnea. Dr. Fariwa advised him to go to the emergency room at Maimonides.

Arriving at Maimonides at approximately 9:00 p.m., Decedent was evaluated by attending physician Dr. Mathew. Dr. Fariwa testified that he also went to see him at Maimonides at approximately 11:00 p.m. but did not keep notes of his examination; he left before Decedent was discharged. Dr. Mathew recorded that his lungs were clear bilaterally without wheezing, rhonchi, or rales, and ordered a chest x-ray and other tests.

The chest x-ray was performed at 12:22 a.m. on December 26 and was interpreted by radiologist Dennis Giordano, M.D. ("Dr. Giordano"). Dr. Giordano's results noted that the study was "limited by body habitus and poor penetration," but reported no evidence of acute pulmonary disease.

Decedent was discharged from Maimonides emergency department around 3:00 a.m. on December 26 with a diagnosis of bronchitis. His flu test returned positive for influenza-A after his discharge. Dr. Mathew testified that she contacted Dr. Fariwa about this result.

On the evening of December 26, Decedent followed up with Dr. Fariwa at his office. Dr. Fariwa recorded bilateral wheezing on examination but also wrote Decedent's shortness of breath had subjectively improved from the previous day. Dr. Fariwa testified that he had received the flu diagnosis from Dr. Mathew, and his notes reflect that he prescribed Tamiflu along with antibiotics and advised Decedent to follow up with 24 hours.

Dr. Fariwa testified that he did not see Decedent again after December 26, though Decedent's mother testified that they made two or three visits to his office between December 27 and December 30. There is no record of office notes or billing records from those alleged visits. Pharmacy records submitted by Plaintiff show that Dr. Fariwa issued a prescription for Decedent for prescription-strength Ibuprofen on December 27. In his deposition, Dr. Fariwa testified that this prescription was issued after Decedent's father visited his office, and he had no in-person or telephone contact with Decedent on that date.

On December 31, sometime after 4:00 a.m., Decedent awoke in respiratory distress and told his fiancé (Plaintiff-administrator) that he could not breathe or see. His mother called 911. City paramedics Daniel Almandoz and Paul Lananna from an Advanced Life Support (ALS) unit arrived first on the scene at 4:44 a.m. Decedent's oxygen saturation was critically low at 60% and rose only to 72% as they administered supplemental oxygen, albuterol and atrovent (nebulizers), and dexamethasone (steroid). A Basic Life Support (BLS) unit arrived at 5:05 a.m. and helped transport Decedent down the stairs to an ambulance.

Decedent arrived at Coney Island Hospital via ambulance at approximately 5:30 a.m. with acute respiratory distress syndrome (ARDS). A portable chest x-ray interpreted by radiologist Timothy Bell, M.D. revealed "bilateral patchy dense pulmonary opacities consistent with pneumonia." Decedent was initially placed on BiPAP, a non-invasive oxygenation method, at 5:50 a.m. by emergency department physician Aleksandr Shestak, M.D. ("Dr. Shestak"), while nebulizers, steroids, and antibiotics were administered.

The Coney Island Hospital record is unclear on exactly what time Decedent was switched from BiPAP to a mechanical ventilator. Resident Nirav Patel, D.O. ("Dr. Patel") entered a procedure order for intubation into the chart at 7:37 a.m., but the first record of ventilator settings was entered at 6:58 a.m. A progress note from respiratory therapist Viktor Grytskiv from 7:01 a.m. stated that Decedent was placed on BiPAP but "due to no improvement on the BiPAP, patient was intubated." A nursing note entered by Olena Movchan stated that at 7:30 a.m., medication was administered because Decedent was "waking up and trying to fight ventilator." Once on the ventilator, Decedent's settings were adjusted on the recommendations of MICU physicians.

At some time before 8:00 a.m., Coney Island Hospital contacted Maimonides for Extracorporeal Membrane Oxygenation (ECMO), a life support measure which bypasses the heart and lungs to deliver oxygen. The Maimonides team arrived shortly before 10:00 a.m., but Decedent went into cardiac arrest twenty minutes into the ECMO procedure. Resuscitation efforts failed, and Decedent was pronounced dead at 11:05 a.m. An autopsy report determined his cause of death was morbid obesity with bronchopneumonia and cardiac hypertrophy.

Broadly, Plaintiff alleges that Decedent's primary care physician Dr. Fariwa and the emergency department at Maimonides, including Dr. Mathew, failed to properly diagnose and treat Decedent for pneumonia when he presented with symptoms on December 25-27. Plaintiff also alleges that the EMS Advanced Life Support team and Coney Island Hospital failed to timely intubate Decedent on December 31. Plaintiff alleges that these departures from each of the Defendants were a proximate cause of Decedent's pain and suffering and his death.

Firstly, the Court will address the City Defendants' motion (Seq. No. 10) to dismiss the claims and/or award summary judgment in their favor on the basis of the governmental function doctrine. The City Defendants argue that Plaintiff's complaint should be dismissed against them on three grounds. First, that Plaintiff failed to plead and cannot demonstrate that a "special duty" was owed to the Decedent. Second, that the actions of the EMS personnel were discretionary, not ministerial. Third, that the Emergency Medical Services of the New York City Fire Department is not an entity that can be sued under New York City Charter § 396, and therefore the agency should be removed from the caption.

On the last point, the City Defendants are correct that emergency medical services, the fire department, and similar agencies are not "separate legal [entities] amenable to...