Rodriguez v. Ferstenberg

2025 NY Slip Op 30117(U)

Opinion

Rodriguez v Ferstenberg

2025 NY Slip Op 30117(U)

January 8, 2025

Supreme Court, Kings County Docket Number: Index No. 521549/2020 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 01/13/2025 10:43 AM INDEX NO. 521549/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 01/13/2025

At Part 80 ofthe Supreme Court ofthe State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Brooklyn, New York on the 8th day of January 2025.

PRESENT:

Hon. Genine D. Edwards, Justice

DAVID RODRIGUEZ, as Administrator of the Estate of Dorothy Rodriguez,

Plaintiff,

Index No: 52154912020

- against - Decision & Order

HENRY FERSTENBERG, M.D., and THE BROOKLYN HOSPITAL CENTER,

Defendants.

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The following e-filed oaoer(s) read herein: NYSCEF Doc. No.

Notice of Motion, Affirmation in Support, Memorandum of Law, and Exhibits 55-72 Affirmation in Opposition and Exhibits. .. ..... 75-87 Reply Memorandum.............. 89

In this action to recover damages for negligence, medical malpractice, and lack of informed consent, Henry Ferstenberg, M.D. ("Dr. Ferstenberg") and The Brooklyn Hospital Center (BHC) (hereinafter collectively "defendants") moved for summary judgment. Plaintiff opposed the motion.

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FILED: KINGS COUNTY CLERK 01/13/2025 10:43 AM INDEX NO. 521549/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 01/13/2025

Defendants' expert, Gary Slater, M.D. ("Dr. Slater") opined that given Dorothy Rodriguez's ('1he decedent") bowel obstruction and/or necrotic bowel symptoms did not worsen, Dr. Ferstenberg, a then part-time employee at BHC, acted within the standard of care by not performing exploratory surgery. Dr. Slater indicated that at BHC, a teaching hospital, either the attending surgeon will assess patients during moming rounds or a resident will conduct the rounds and provide updates to the attending surgeon. Dr. Ferstenberg only made contact with the decedent between October 23 and October 26, 2018, and testified that he discussed her discharge on the moming of October 26,2018, with chief resident Philip Kramer, M.D. The plan was to discharge the decedent on Monday or Tuesday, (October 29s or 30s) once her labs were repeated, ifshe was able to tolerate full fluids. It was Dr. Ferstenberg's practice not to discharge patients over the weekend.

Dr. Ferstenberg further testified that he neither approved nor ordered the decedent's discharge on October 27, 2018, and did not speak with any residents about her new complaints of pain, distention, and firmness ofher abdomen, which was followed by an episode of vomiting. Nurse Gabriela Paulino Polanco's note, written on Oclober 27,2018, indicated that first year resident Daniel Azof, M.D. ("Dr. Azof') was informed of decedent's complaints and status, and he was awaiting new orders. Dr. Azof discharged the decedent on October 27, 201 8, and noted that Dr. Ferstenberg was faxed/copied on the discharge note. Dr. Ferstenberg testified that while he was never faxed or emailed any discharge note, he is responsible for determining that a patient is in stable condition before being discharged. Dr. Azof testified that he did not have any direct conversations with Dr. Ferstenberg prior to discharging the decedent, but he had indirect contact through the senior residents. He finther testified that it was customary practice for him to "go up the chain of command" and confer with the more senior residents, including second

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FILED: KINGS COUNTY CLERK 01/13/2025 10:43 AM INDEX NO. 521549/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 01/13/2025

year resident Rose Gooding, M.D. ("Dr. Gooding"), however he could not recall if she spoke with Dr. Ferstenberg regarding the decedent's October 27s status. Dr. Gooding testified that while she was not assigned to the decedent, the Whatsapp conversation between herself and Dr. Azof indicated that she contacted Dr. Ferstenberg regarding the decedent's updated status since she replied to Dr. Azof with "Rodriguez. D/c with miralax 1 capsule bid."

In a swom affidavit, Dr. Ferstenberg denied that he received any calls from BHC on October 27, 2018, around the time ofDr. Gooding's conversation on Whatsapp regarding discharging the decedent with Miralax.

Considering the foregoing, the defendants failed to shoulder their burden ofproof.

Factual issues remain as to whether negligent medical decisions surrounding the decedent's discharge were made. Schumacher v. Pucciarelli. 16l A.D.3d 1205,8'7 N.Y.S.3d 217 (2d Dept. 2018) (matters of credibility preclude summary judgm ent); Martinez v. Orange Regional Medical center,2o3 A.D.3d 910, 165 N.Y.S.3d 571 (2dDept.2022).

With respect to plaintiff s lack of informed consent claim, this Court finds that the defendants did not engage in an "afftrmative violation of physical integrity in the absence of informed consent;' 5.14. v. Catskill Regional Medical Center,2l1 A.D.3d 890, 180 N.Y.S.3d 561 (2dDept.2022).

Accordingly, it is

ORDERED that defendants' motion for summary judgment is granted only to the extent of dismissing plaintifPs cause ofaction for lack of informed consent, the rest of the motion is denied, and it is fruther ORDERED that all parties shall appear for an Altemative Dispute Resolution conference on March 20,2025, at 10:00 AM, and it is further

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FILED: KINGS COUNTY CLERK 01/13/2025 10:43 AM INDEX NO. 521549/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 01/13/2025

ORDERED that plaintiff is directed to electronically serve a copy of this Decision and Order with notice ofentry on counsel for defendants and to electronically file and afiidavit of service thereof with the Kings County Clerk.

This constitutes the Decision and Order ofthis Court.

For Clerks use only NTE MG- MD Motion Seq. #: 3 J.S.C.

HON. GENINED. EDWARDS

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