Radunceva v Whelan 2024 NY Slip Op 34534(U) December 27, 2024 Supreme Court, Kings County Docket Number: Index No. 500736/2014 Judge: Genine D. Edwards 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: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 · RECEIVED NYSCEF: 12/30/2024
At Part 80 of the Supreme Court of the State of New Yark, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Brooklyn, New York on the 27th day of December 2024.
PRESENT
Hon. Genine D. Edwards, Justice
--------------------------------------------------------------------x SVETLANA RADUNCEV A as EXECUTRIX for the Estate of ALEXANDER DUBOVSKI, DECEASED,
Plaintiff,
Index No: 500736/2014
- against - Decision & Order
RICHARD WHELAN, M.D. JOSEF SHEHEBAR, M.D., ST. LUKE'S-ROOSEVELT HOSPITAL CENTER, JINU KIM, M.D., and JONATHAN EPSTEIN, M.D.,
Defendants. -----------------------------------------------------------------x The following e-filed paper{s) read herein: NYSCEF Doc. No.
Notice of Motion, Affirmation in Support, and Exhibits ............ 69-87
In this action to recover damages for medical malpractice, negligence and lack of
informed consent, Richard Whelan, M.D. ("Dr. Whelan"), Josef Shehebar, M.D. (Dr.
Shehebar"), St. Luke's-Roosevelt Hospital Center ("St. Luke's"), Jinu Kim, M.D. ("Dr. Kim")
and Jonathan Epstein, M.D. ("'Dr. Epstein") (hereinafter "defendants") moved for summary
judgment Plaintiff did not oppose.
[* 1] 1 of 6 [FILED: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/30/2024
Upon due deliberation and consideration, this Court finds that Dr. Kim and Dr. Epstein
have established a prima facie case for judgment. Defendants' experts demonstrated that there
were no departures from the applicable standards of care in their respective treatment of
Alexander Dubovski (''decedent"), during his August 1, 2011 colorectal surgery. The expert
affirmations submitted by Dr. Jill Fong ("Dr. Fong") and Dr. Bruce Gingold C-Dr. Gingold")
explained that Dr. Kim· s and Epstein's role, as attending anesthesiologists for plaintiffs
colorectal cancer removal surgery, were limited to inducing general and regional anesthesia and
did not involve the positioning of decedent's legs.
Ors. Fong and Gingold opined that the role of an anesthesiologist is limited to protecting
the patient's airway and ensuring that the various lines and gauges that are connected to the
patient are properly functioning. Anesthesiologists generally defer to the attending surgeon
regarding the positioning of the patient. Dr. Fong further highlighted that Dr. Epstein cannot be
liable for any alleged improper positioning, as he had already departed from the operating room
when decedent was positioned.
The epidural injection administered by Dr. Epstein was properly placed. Dr. Fong opined
that if the needle was inserted through the dura matter, then the patient receiving the epidural
would experience pain and/or paresthesia. Decedent exhibited neither pain nor paresthesia upon
placement of the epidural needle. Dr. Fong explained that the standard of care requires the
performance of two tests to ensure that the epidural needle was placed correctly. First, the
anesthesiologist must ask the patient if they are experiencing pain or paresthesia. A lack of
either indicates that the needle is not in direct contact with any nerve roots. Next, the
anesthesiologist must apply aspiration to determine if any blood or cerebrospinal fluid comes
out. Lack of blood indicates that the needle is not in a blood vessel, and lack of cerebrospinal
[* 2] 2 of 6 [FILED: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/30/2024
fluid indicates that the needle is outside of the dura matter. The anesthesiologist checks for pain
or paresthesia, performs an aspiration test, and then administers a test dose of lidocaine and
epinephrine. A properly positioned epidural will gamer minimal neurological response to the
test dose. If the needle is in a blood vessel, the test dose will cause a spike in the heart rate. If
the needle is through the dura matter, it will cause an inappropriate sensory and/or motor
blockade.
Here, after Dr. Epstein placed the epidural, decedent did not complain of any pain or
paresthesia. The aspirate was devoid of blood or cerebrospinal fluid. Finally, Dr. Epstein
received appropriate responses from decedent when he administered the test dose of lidocaine
and epinephrine. Thus, Dr. Fong opined that Dr. Epstein met the standard of care in the
placement of the epidural needle and catheter.
As to Dr. Whelan, Dr. Gingold opined that his chosen use of leg positioning - the
modified lithotomy position - was correct for this operation, as the surgical team needed to be
able to work between the patient's legs and met the standard of care. Dr. Gingold posited that
while there are some nerves that are at an increased risk of positioning injury when using the
modified lithotomy position, the femoral nerve is generally not considered to be one of them as
the positioning protects the nerve from stretch and compression injuries. Dr. Gingold further
opined that Dr. Whelan's choice to use the Bookwalter Retraction System and the St. Mark's
Pelvic Retractors were necessary for this operation. The intraoperative retractors allowed Dr.
Whelan to pull parts of the anatomy away so that he obtained both visualization and access to the
tumor. Dr. Gingold propounded that the use of the intraoperative retractors likely caused the
injury to the left femoral nerve. He explained that the nature of the surgery required the
[* 3] 3 of 6 [FILED: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/30/2024
retractors to pull in a way that caused either compression or a stretch injury to the left femoral
nerve.
But none of defendants' experts explained what amount of pulling, if any, is an excessive
amount, or the risk of femoral nerve damage due to colorectal surgery. Indeed, Dr. Howard
Sander ("Dr. Sander") opined that decedent's electromyography report, which showed evidence
of a severe left femoral neuropathy, was compatible with the contention that the injury stemmed
from stretch or compression of the femoral nerve. Moreover, Dr. Whelan testified that the
"retraction and dissension in the deep pelvis to get the second metastasis out of that area requires
someone standing in that position to give [] the retraction necessary and the exposure to do the
operation." Dr. Whelan indicated that the person doing the retraction would have been "[him 1- ..
Dr. Shehebar ... [or other present doctors]." Thus, issues of fact remain regarding whether Dr.
Whelan deviated from the standard of care. Lalanne v. Nyack Hosp., 45 A.D.3d 645,846
N.Y.S.2d 257 (2d Dept. 2007).
However, Dr. Shehebar was a resident at the time of the operation and did not exercise
any independent medical judgment. Established caselaw provides that a resident cannot be liable
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Radunceva v Whelan 2024 NY Slip Op 34534(U) December 27, 2024 Supreme Court, Kings County Docket Number: Index No. 500736/2014 Judge: Genine D. Edwards 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: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 · RECEIVED NYSCEF: 12/30/2024
At Part 80 of the Supreme Court of the State of New Yark, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Brooklyn, New York on the 27th day of December 2024.
PRESENT
Hon. Genine D. Edwards, Justice
--------------------------------------------------------------------x SVETLANA RADUNCEV A as EXECUTRIX for the Estate of ALEXANDER DUBOVSKI, DECEASED,
Plaintiff,
Index No: 500736/2014
- against - Decision & Order
RICHARD WHELAN, M.D. JOSEF SHEHEBAR, M.D., ST. LUKE'S-ROOSEVELT HOSPITAL CENTER, JINU KIM, M.D., and JONATHAN EPSTEIN, M.D.,
Defendants. -----------------------------------------------------------------x The following e-filed paper{s) read herein: NYSCEF Doc. No.
Notice of Motion, Affirmation in Support, and Exhibits ............ 69-87
In this action to recover damages for medical malpractice, negligence and lack of
informed consent, Richard Whelan, M.D. ("Dr. Whelan"), Josef Shehebar, M.D. (Dr.
Shehebar"), St. Luke's-Roosevelt Hospital Center ("St. Luke's"), Jinu Kim, M.D. ("Dr. Kim")
and Jonathan Epstein, M.D. ("'Dr. Epstein") (hereinafter "defendants") moved for summary
judgment Plaintiff did not oppose.
[* 1] 1 of 6 [FILED: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/30/2024
Upon due deliberation and consideration, this Court finds that Dr. Kim and Dr. Epstein
have established a prima facie case for judgment. Defendants' experts demonstrated that there
were no departures from the applicable standards of care in their respective treatment of
Alexander Dubovski (''decedent"), during his August 1, 2011 colorectal surgery. The expert
affirmations submitted by Dr. Jill Fong ("Dr. Fong") and Dr. Bruce Gingold C-Dr. Gingold")
explained that Dr. Kim· s and Epstein's role, as attending anesthesiologists for plaintiffs
colorectal cancer removal surgery, were limited to inducing general and regional anesthesia and
did not involve the positioning of decedent's legs.
Ors. Fong and Gingold opined that the role of an anesthesiologist is limited to protecting
the patient's airway and ensuring that the various lines and gauges that are connected to the
patient are properly functioning. Anesthesiologists generally defer to the attending surgeon
regarding the positioning of the patient. Dr. Fong further highlighted that Dr. Epstein cannot be
liable for any alleged improper positioning, as he had already departed from the operating room
when decedent was positioned.
The epidural injection administered by Dr. Epstein was properly placed. Dr. Fong opined
that if the needle was inserted through the dura matter, then the patient receiving the epidural
would experience pain and/or paresthesia. Decedent exhibited neither pain nor paresthesia upon
placement of the epidural needle. Dr. Fong explained that the standard of care requires the
performance of two tests to ensure that the epidural needle was placed correctly. First, the
anesthesiologist must ask the patient if they are experiencing pain or paresthesia. A lack of
either indicates that the needle is not in direct contact with any nerve roots. Next, the
anesthesiologist must apply aspiration to determine if any blood or cerebrospinal fluid comes
out. Lack of blood indicates that the needle is not in a blood vessel, and lack of cerebrospinal
[* 2] 2 of 6 [FILED: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/30/2024
fluid indicates that the needle is outside of the dura matter. The anesthesiologist checks for pain
or paresthesia, performs an aspiration test, and then administers a test dose of lidocaine and
epinephrine. A properly positioned epidural will gamer minimal neurological response to the
test dose. If the needle is in a blood vessel, the test dose will cause a spike in the heart rate. If
the needle is through the dura matter, it will cause an inappropriate sensory and/or motor
blockade.
Here, after Dr. Epstein placed the epidural, decedent did not complain of any pain or
paresthesia. The aspirate was devoid of blood or cerebrospinal fluid. Finally, Dr. Epstein
received appropriate responses from decedent when he administered the test dose of lidocaine
and epinephrine. Thus, Dr. Fong opined that Dr. Epstein met the standard of care in the
placement of the epidural needle and catheter.
As to Dr. Whelan, Dr. Gingold opined that his chosen use of leg positioning - the
modified lithotomy position - was correct for this operation, as the surgical team needed to be
able to work between the patient's legs and met the standard of care. Dr. Gingold posited that
while there are some nerves that are at an increased risk of positioning injury when using the
modified lithotomy position, the femoral nerve is generally not considered to be one of them as
the positioning protects the nerve from stretch and compression injuries. Dr. Gingold further
opined that Dr. Whelan's choice to use the Bookwalter Retraction System and the St. Mark's
Pelvic Retractors were necessary for this operation. The intraoperative retractors allowed Dr.
Whelan to pull parts of the anatomy away so that he obtained both visualization and access to the
tumor. Dr. Gingold propounded that the use of the intraoperative retractors likely caused the
injury to the left femoral nerve. He explained that the nature of the surgery required the
[* 3] 3 of 6 [FILED: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/30/2024
retractors to pull in a way that caused either compression or a stretch injury to the left femoral
nerve.
But none of defendants' experts explained what amount of pulling, if any, is an excessive
amount, or the risk of femoral nerve damage due to colorectal surgery. Indeed, Dr. Howard
Sander ("Dr. Sander") opined that decedent's electromyography report, which showed evidence
of a severe left femoral neuropathy, was compatible with the contention that the injury stemmed
from stretch or compression of the femoral nerve. Moreover, Dr. Whelan testified that the
"retraction and dissension in the deep pelvis to get the second metastasis out of that area requires
someone standing in that position to give [] the retraction necessary and the exposure to do the
operation." Dr. Whelan indicated that the person doing the retraction would have been "[him 1- ..
Dr. Shehebar ... [or other present doctors]." Thus, issues of fact remain regarding whether Dr.
Whelan deviated from the standard of care. Lalanne v. Nyack Hosp., 45 A.D.3d 645,846
N.Y.S.2d 257 (2d Dept. 2007).
However, Dr. Shehebar was a resident at the time of the operation and did not exercise
any independent medical judgment. Established caselaw provides that a resident cannot be liable
for malpractice where the attending surgeon's directions did not so greatly deviate from normal
practice insomuch that the resident should be held liable for failing to intervene. Tsocanos v.
Zaidman, 180 A.D.3d 841, 118 N.Y.S.3d 219 (2d Dept. 2020).
Defendants showed through the medical records and testimony that "plaintiff was
informed of the reasonably foreseeable risks, benefits, and alternatives to the [colorectal
surgery], and that a reasonably prudent patient in the plaintiffs position would not have declined
to undergo the surgery had he or she been fully informed:· Ciceron v. Gulmatico, 220 A.D.3d
732, 197 N.Y.S.3d 556 (2d Dept. 2023). Plaintiff failed to oppose the motion.
[* 4] 4 of 6 [FILED: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/30/2024
Accordingly, it is
ORDERED that defendants' motion for summary judgment is granted only to the extent
of dismissing all claims as against Josef Shehebar, M.D., Jinu Kim, M.D. and Jonathan Epstein,
M.D .. and dismissing plaintiffs cause of action for lack of informed consent. the rest of the
motion is denied, and it is further
ORDERED that the caption is amended as follows:
---------------------------------------------------------------------x
SVETLANA RADUNCEV A as EXECUTRIX for the Estate of ALEXANDER DUBOVSKI, DECEASED,
- against -
RICHARD WHELAN, M.D. and ST.LUKE'S-ROOSEVELT HOSPITAL CENTER,
Defendants. -----------------------------------------------------------------x
and it is further
ORDERED that all remaining parties shall appear for an Alternative Dispute Resolution
conference on March 18, 2025, at 10:00 AM, and it is further
[* 5] 5 of 6 [FILED: KINGS COUNTY CLERK 12/30/2024 04:19 P~ INDEX NO. 500736/2014 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 12/30/2024 ,.;
ORDERED that defendants are directed to electronically serve a copy of this Decision
and Order with notice of entry on counsel for defendants and to electronically file and affidavit
of service thereof with the Kings County Clerk.
This constitutes the Decision and Order of this Court.
For Clerks use only
MG MD
Motion Seqs. #: 4 J.S.C.
HON. GENlNED. EDWARDS
[* 6] 6 of 6