Nastahowski v. Ellozy

2025 NY Slip Op 31549(U)

• Court: New York Supreme Court, New York County
• Decided: April 28, 2025
• Docket: Index No. 805229/2020
• Status: Unpublished

Opinion

Nastahowski v Ellozy 2025 NY Slip Op 31549(U) April 28, 2025 Supreme Court, New York County Docket Number: Index No. 805229/2020 Judge: Kathy J. King Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 04/29/2025 01:07 P~ INDEX NO. 805229/2020 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 04/29/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHY J. KING PART 06 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 805229/2020 SCOTT CHESTER NASTAHOWSKI, and COLLEEN NASTAHOWSKI, 01/23/2024, MOTION DATE 02/02/2024 Plaintiffs, MOTION SEQ. NO. 002 003 - V -

SHARIF H ELLOZY, STEVEN J MCANANY, and HOSPITAL DECISION + ORDER ON FOR SPECIAL SURGERY, MOTION Defendants. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 95, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110,111,112,123,125,127 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 96, 97, 98, 99, 100, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 124, 126, 128, 129, 130 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing papers, and oral arguments having been heard, Defendant, Dr. Sharif

H. Ellozy, M.D. ("Dr. Ellozy") (Motion Sequence 002), and Defendants, Dr. Steven J. McAnany,

M.D. ("Dr. McAnany") and Hospital for Special Surgery ("HSS") (Motion Sequence 003)

("collectively the Defendants), move for summary judgment dismissal, pursuant to CPLR 3212,

in favor of the Defendants on all causes of action and directing the Clerk of the Court to enter

judgment accordingly on behalf of the Defendants.

Plaintiffs oppose both motions, which are consolidated for the purposes of disposition.

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BACKGROUND

On May 23, 2019, Plaintiff, Scott Chester N astahowski ("Plaintiff'), sought treatment from

Dr. McAnany for severe pain running down his right leg which impacted his gait. The pain had

worsened over years, despite trying steroid injections, anti-inflammatory medication, physical

therapy, and home exercises. After reviewing X-rays and a prior MRI from 2018, Dr. McAnany

saw significant degeneration in the Plaintiffs lower spine, particularly at the L4-5 and L5-S 1, as

well as worsening nerve compression, which he found likely contributed to his symptoms.

Thereafter, Dr. McAnany recommended an anterior lumbar interbody fusion (ALIF) at L4-5 and

L5-S 1 to help stabilize the spine and relieve nerve pressure. A new MRI and CT scan was ordered

by Dr. McAnany, which were completed on June 5, 2019, and confirmed his earlier findings and

reaffirmed that surgery was the best course of action. In June 12, 2019 Dr. McAnany discussed

the surgery with the Plaintiff, and indicated that, Dr. Ellozy, a vascular surgeon, would be assisting

with the procedure.

On August 30, 2019, Plaintiffs procedure was performed at HSS. Dr. Ellozy began by

exposing the anterior portion of the spine, mobilizing the necessary blood vessels, and placing

retractors so that Dr. McAnany could proceed with the fusion. At the very end of the anterior

portion of the surgery, when the retractors were removed from the L5-S 1 level, vascular injury

was found at the joint of the iliac veins and on the underside of the inferior vena cava. Non-party

Dr. Kim activated HSS' s massive transfusion protocol to manage the blood loss. Because of the

vascular injury and the amount of blood loss Dr. McAnany did not go forward with the second

stage of the surgery, which would have required placing the Plaintiff face-down for another three

to four hours. After Dr. Ellozy ensured that the bleeding was under control and the surgical wound

was closed due to the intraoperative complications, Plaintiff was sent to the Orthopedic Surgery

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Care Unit for close monitoring and remained hospitalized for five days before being discharged

on September 4, 2019.

Following discharge, Plaintiff was admitted to Greenwich Hospital/Yale New Haven

Health ("YNHH") on September 11, 2019. During his visit at YNHH, an expanding retroperitoneal

hematoma was noted and reported to be the same hematoma that was discovered within a few days

of the operation at HSS. YNHH discontinued Levenox, which had been prescribed by Dr. Ellozy,

since it was contraindicated to the Plaintiffs bleeding. On February 4, 2020, the Plaintiff returned

to YNHH reporting significant swelling and pain in his left leg. Subsequent venogram and

venocavogram procedures revealed a permanent circulatory impairment in his lower extremities,

likely to cause lifelong limitations in mobility.

On August 4, 2020, Plaintiff commenced the underlying action by filing a Summons and

Verified Complaint alleging: 1) medical malpractice; 2) lack of informed consent; and 3) a

derivative claim for loss of consortium on behalf of Plaintiffs spouse, Colleen Nastahowski. The

gravamen of the allegations is that the Defendants negligently performed Plaintiffs ALIF surgery,

causing a severe right iliac vein injury that led to permanent neurological damage, prolonged

hospitalization, and other medical interventions, while also failing to adequately inform him of the

surgical risks and alternatives, which consequently deprived his spouse of companionship and

marital services.

Defendants now move for summary judgment dismissing the Plaintiffs' complaint.

SUMMARY JUDGMENT AS TO MEDICAL MALPRACTICE OF DR. ELLOZY (MOT. SEO 02) AND DR. McANANY AND HSS (MOT. SEO 03)

A defendant physician moving for summary judgment must make a prima facie showing

of entitlement to judgment as a matter oflaw by establishing the absence of a triable issue of fact as

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to his or her alleged departure from accepted standards of medical practice, or by establishing that

the plaintiff was not injured by such treatment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324

[1986]; Frye v Montefiore Med. Ctr., 70 AD3d 15 [1st Dept 2009]; McGuigan v Centereach Mgt.

Group, Inc., 94 AD3d 955 [2d Dept 2012]; Sharp v Weber, 77 AD3d 812 [2d Dept 2010]; see

generally 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 204,206 [1st Dept 2010]; Joyner-Packv. Sykes, 54 AD3d 727 [2d

Dept 2008]; Kai Hou Chan v Yeung, 66 AD3d 642 [2d Dept 2009]; Jones v Ricciardelli, 40 AD3d

935 [2d Dept 2007]). Furthermore, to satisfy his or her burden on a motion for summary judgment,

a defendant must address and rebut specific allegations of malpractice set forth in the plaintiffs

bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043 [2d Dept 2010]; Grant v

Hudson Val. Hosp. Ctr., 55 AD3d 874 [2d Dept 2008]; Terranova v Finklea, 45 AD3d 572 [2d

Dept 2007]).

In support of his motion Dr. Ellozy submits the expert affirmation of Dr. Sunita Srivastava

("Dr. Srivastava"), a board-certified General and Vascular Surgeon who opines, to a reasonable

degree of medical certainty, that Dr. Ellozy' s treatment and care were within good and accepted

medical standards at all times and that Plaintiff was adequately informed of the risks of the ALIF

surgery, including vascular injury, through discussions with the orthopedic surgeon and the signed

consent forms. Dr. Srivastava highlights that Dr. Ellozy appropriately reviewed Plaintiffs MRI

and CT scans before surgery and found no vascular abnormalities that would increase the risk of

complications. She further opines that a preoperative CT angiogram was not necessary because

the Plaintiff had no history of vascular anomalies or prior abdominal surgery. Dr. Srivastava

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opined that Dr. Ellozy properly performed his role as the access surgeon, mobilizing the vessels

appropriately to allow the orthopedic surgeon to proceed. Instead, according to Dr. Srivastava, the

vascular injuries were likely due to the necessary retraction of the vessels, which is an inherent

risk of the procedure, rather than any deviation from the standard of care. Further, Dr. Srivastava

states that upon identifying the vascular injury, Dr. Ellozy acted promptly, clamping the vein and

repairing the damage with appropriate sutures. Dr. Srivastava concludes that the significant blood

loss, which is not unusual in an ALIF procedure, was managed effectively through a transfusion

protocol, and the decision to halt the posterior portion of the surgery was appropriate.

Dr. McAnany and HSS, submit the expert affirmation of Dr. Michael S. Hisey ("Dr.

Hisey"), a board-certified Orthopedic Surgeon, who opines, to a reasonable degree of medical

certainty, that Dr. McAnany and HSS, neither deviated from the standard of care nor contributed

to the Plaintiffs alleged injuries. Specifically, Dr. Hisey opines that the ALIF surgery was

medically indicated as previous, non-surgical, interventions were unsuccessful. He further opines

that the use of retractors was appropriate and is standard practice in ALIF procedures, and Dr.

McAnany' s anterior approach was an appropriate. According to Dr. Hisey, the decision to halt the

surgery was medically sound to avoid further risk to the Plaintiff. Dr. Hisey highlights that the pre-

surgical evaluations were adequate, and a CT angiogram is not required by the standard of care

and its absence does not indicate negligence. Dr. Hisey also opines that the Plaintiff provided

informed consent and was specifically appraised of the risks, benefits, and alternatives to surgery

by Dr. McAnany. Lastly, the Plaintiffs claimed vascular injuries were not caused by any deviation

from the standard of care by Dr. McAnany and the bleeding was discovered after the retractors

were removed, suggesting the any injury was not caused by Dr. McAnany.

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Based on the expert affirmations of Defendants, the Court finds that Dr. Ellozy, Dr.

McAnany, and HSS have satisfied their prima facie burden of showing that the care and treatment

rendered was within the standard of care, and did not proximately cause any of the injuries alleged

by Plaintiff. Once the Defendant establishes prima facie entitlement to judgment as a matter of

law, 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 that such departures were a competent producing cause of the plaintiffs injuries (see

Roques, 73 AD3d at 207; Landry v Jakubowitz, 68 AD3d 728 [2d Dept 2009]; Luu v Paskowski,

57 AD3d 856 [2d Dept 2008]).

In opposition, the Plaintiff submits the expert affirmation of Dr. Norman J. Chideckel ("Dr.

Chideckel"), a board-certified General Surgeon. Dr. Chideckel opines, to a reasonable degree of

medical certainty, that the Defendants deviated from the standard of care when performing the

ALIF surgery, and that said deviation caused the Plaintiffs alleged injuries, including a vascular

injury and swelling and pain in his left leg due to thrombosis and vascular narrowing leading to

long-term impairment. Specifically, Dr. Chideckel opines that Dr. Ellozy deviated from the

standard of care during the surgery by applying excessive traction with retractors, leading to tears

in the iliac vein and inferior vena cava resulting in massive bleeding and the need for significant

transfusions.

Further, Dr. Chideckel opines that both Dr. Ellozy and Dr. McAnany deviated from the

standard of surgical practices resulting in harm to Plaintiff as a result of excessive traction use

during the procedure. Dr. Chideckel contends that the retroperitoneal hematoma had occurred after

the operation performed by the defendants. According to Dr. Chideckel, Dr. McAnany failed to

adequately monitor and protect the vascular structures during surgery. Lastly, Dr. Chideckel

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highlights the inconsistency in the documentation and operative reports of Dr. McAnany and Dr.

Ellozy regarding when and where the vascular injuries occurred and the second vascular surgeon

who was brought into assist but never documented.

The Court finds that Plaintiffs expert raise triable issues of fact regarding alleged

deviations and whether such deviations proximately caused Plaintiffs injuries; thus, rebutting the

Defendants' prima facie entitlement to summary judgment (see Johnson v St. Barnabas Hosp., 52

AD3d 286 [1st Dept 2008], appeal denied 11 NY3d 705 [2008]; Landau v Rappaport, 306 AD2d

446 [2d Dept 2003]; Nabozny v Cappelletti, 267 AD2d 623 [3d Dept 1999]; Johnson v Jacobowitz,

65 AD3d 610 [2d Dept 2009]. Accordingly, summary judgment is denied as to Dr. Ellozy and Dr.

McAnany. "Summary judgment is not appropriate ... [when] the parties [submit] conflicting

medical expert opinions because [s]uch conflicting expert opinions will raise credibility issues

which can only be resolved by a jury" (Cummings v Brooklyn Hosp. Ctr., 147 AD3d 902,904 [2d

Dept 2017], quoting DiGeronimo v Fuchs, 101 AD3d 933 [2d Dept 2012] [internal quotation

marks omitted]; see Elmes v Yelon, 140 AD3d 1009 [2d Dept 2016]; Leto v Feld, 131 AD3d 590

[2d Dept 2015]).

Given that triable issues of fact exist as to the care and treatment by Dr. McAnany, an

employee of HSS, and whether such treatment proximately caused Plaintiffs alleged injuries,

dismissal is not warranted against HSS, under the doctrine of respondeat superior (see Sessa v

Peconic Bay Medical Center, 200 AD3d 1085 [2d Dept 2021 ]; Klippel v Rubinstein, 300 AD2d

448 [2d Dept 2002]; Rivera v County of Suffolk, 290 AD2d 430 [2d Dept 2002]; Mduba v

Benedictine Hosp., 52 AD2d 450 [3d Dept 1976]). Additionally, the Court notes that HSS cannot

be held liable for the alleged negligence of Dr. Ellozy since the record establishes that he was

neither an employee ofHSS, nor compensated by HSS for his treatment of the Plaintiff. Although

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a hospital or other medical facility is liable for the negligence or malpractice of its employees this

rule does not apply when the treatment is provided by an independent physician, as when the

physician is retained by the patient himself (Bing v Thunig, 2 NY2d 656 [1957]; Fiorentino v

Wenger, 19 NY2d 407,414 [1967]; see Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 683

[1981]). As such, the Court finds that any claims that Defendants are vicarious liable as to the care

and treatment by Dr. Ellozy are dismissed.

As to Plaintiffs cause of action for loss of consortium, dismissal is precluded since it is

derivative of the injured spouse's right to recover damages for any injuries sustained as a result of

the Defendants' alleged malpractice (see Liff v Schildkrout, 49 NY2d 622 [1980]).

SUMMARY JUDGMENT AS TO LACK OF INFORMED CONSENT A defendant moving for summary judgment on a lack of informed consent claim must

demonstrate that the plaintiff was informed of the alternatives to and the reasonably foreseeable

risks and benefits of the treatment (Henry v Bezalel Rehabilitation & Nursing Ctr., 2020 NY Slip

Op30369(U) [Sup Ct, NY County 2020]; Kai Hou Chan v Yeung, 66 AD3d 642, 643 [2d Dept

2009]; A defendant may satisfy his or her 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

consent form indicating his or her understanding of the possible risks of the procedure along with

corroborating medical records (see Bamberg-Taylor v Strauch, 192 AD3d 401, 401-402 [1st Dept

2021]).

In the case at bar, Defendants' expert state indicate that informed consent forms were

signed by Plaintiff regarding the risks, benefits and alternatives of the ALIF procedure.

Specifically, Dr. Srivastava opines, that Plaintiff signed four consent forms acknowledging: (1)

the purposes, benefits, risks, and complications of the procedure, and alternative therapies; (2) the

potential risks of blood transfusion, anesthesia, and implantation of infuse; and (3) the

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understanding that medicine is not an exact science and may not provide the intended benefits. Dr.

Srivastava concludes that informed consent was properly obtained through discussions with Dr.

McAnany and the informed consents making it unnecessary for Dr. Ellozy to conduct additional

consent discussions.

Similarly, Dr. McAnany and HSS' s expert, Dr. Hisey, also opines that Defendant, Dr.

McAnany, had properly discussed the surgical plan, including the risks, benefits, and alternatives.

Dr. Hisey highlights that the Plaintiff acknowledged that Dr. Ellozy would be involved in the

procedure to minimize the risk of vascular damage. Lastly, Dr. Hisey also states that the Plaintiff

formalized his consent by signing a "Consent for Operation and/or Procedure."

Based on Dr. Srivastava' s and Dr. Hisey' s expert opinions, the Court finds that the

Defendants have met their burden on the claim of the lack of informed consent.

In opposition, Plaintiff raises a triable issue of fact based on the expert affirmation of Dr.

Chideckel, who opines that the Plaintiff did not give informed consent and was not properly

informed of the heightened risk of vascular injury associated with ALIF procedures. He further

opines that Dr. Ellozy never met or counseled the Plaintiff before surgery (Rosario v Our Lady of

Consolation Nursing & Rehab. Care Ctr., 186 AD3d 1426 [2d Dept 2020]; Boston v Weissbart,

62 AD3d 517 [1st Dept 2009]).

Accordingly, it is hereby

ORDERED that Defendant Dr. Ellozy' s motion (Motion Sequence 2) is denied in its

entirety; and it is further

ORDERED that Defendants Dr. McAnany and HSS's motion (Motion Sequence 3) is

granted to the extent of dismissing all of Plaintiff's claims against HSS based on the malpractice

of Dr. Ellozy, only, and in all other respects the motion is denied in its entirety; and it is further

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ORDERED that the Plaintiffs are to serve a copy of this order upon the Defendants with

notice of entry within twenty (20) days of entry of this order; and it is further

ORDERED, that the parties are directed to appear for a settlement conference on August

19, at 2:30 pm, at 60 Centre Street, Room #351, New York, NY.

This constitutes the decision and order of the Court.

4/28/2025 DATE KATI-I.-G, J.S.C

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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