Parinaz Mokhtari et al v. Wasik Ashraf D.O. et al, 2020-06889, 10 (N.Y. Sup. Ct., Appellate Division, Second Department County May. 24, 2021) (2024)

`

`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ................................................................................... iii
`
`COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................. 1
`
`COUNTER-STATEMENT OF THE NATURE OF THE CASE ............................. 1
`
`COUNTER-STATEMENT OF FACTS .................................................................... 2
`
`ARGUMENT
`
`POINT 1
`
`
`The Decision by the Lower Court Denying Summary
`Judgment Dismissal of Plaintiffs-Respondents’ Claims of
`Medical Malpractice Against Defendants-Appellants Was
`Proper, and Was Based on the Evidence Before It, Which
`Included Two Diametrically Opposed Expert Affidavits ................................ 12
`
`
`POINT 2
`
`
`(a) Defendants-Appellants Are Not Entitled to Partial Summary Judgment
`Concerning Malpractice Committed on February 4, 5, 6, 7, 10 and 11,
`Because They Failed to Raise the Claim in Their Motion for Summary
`Judgment, Rendering It Unpreserved for This Court’s Review ............... 14
`
`(b) Plaintiffs Addressed the Allegations of Medical Malpractice
`Linked to the Dates of February 8, 2016, through February 11, 2016,
`Showing Departures from the Standard of Care Throughout, All of
`Which Caused or Contributed to Ms. Mokhtari’s Colon Perforation,
`So That No “Partial Summary Judgment” With Regard to Any of
`Those Dates Is Warranted ........................................................................ 15
`
`
`
`
`
`
`
`
`i
`
`

`

`
`
`POINT 3
`
`
`Dr. Ashraf and OSM Departed from the Orthopedic Standard
`Of Care in Treating Plaintiff-Respondent from February 8,
`2016 Through February 11, 2016, and Their Departures
`Directly Caused Her Injuries ............................................................................ 18
`
`POINT 4
`
`
`Plaintiffs-Respondents’ Claims for Loss of Consortium, and
`for Vicarious Liability As to OSM Are Fully Supported by the
`Credible Evidence ............................................................................................ 30
`
`CONCLUSION ........................................................................................................ 31
`
`PRINTING SPECIFICATIONS STATEMENT ..................................................... 32
`
`
`
`ii
`
`

`

`TABLE OF AUTHORITIES
`
`Page
`
`Cases:
`
`Assenza v. Horowitz,
`26 Misc.3d 356 (Sup. Ct. Richmond Co. 2009); renewal and reargument
`granted 2010 N.Y. Misc. LEXIS 1385, 2010 Slip Op. 30254(U) .................... 22
`
`
`Bacalan v. St. Vincents Catholic Medical Centers of New York,
`179 A.D.3d 989 (2d Dept.2020) ....................................................................... 20
`
`
`Blaier v. Cramer, et al.,
`303 A.D.2d 301 (1st Dept. 2003) ...................................................................... 29
`
`
`Engelbart v. Schachter,
`235 A.D.2d 387, 652 N.Y.S.2d 80 (2d Dept. 1997) ................................... 28, 29
`
`
`Greco v. Boyce,
`262 A.D.2d 734 (3d Dept. 1999) ...................................................................... 14
`
`
`Jacobsen v. New York City Health & Hosps. Corp,
`22 NY3d 824 (2014) ......................................................................................... 12
`
`
`Matter of Eighth Judicial Dist. Asbestos Litigation v. Beazer East, Inc., et al,
`33 N.Y.3d 488 (2019) ................................................................................. 12, 14
`
`
`Matter of Garrio v. Donovan,
`290 A.D.2d 913 (3d Dept. 2002) ...................................................................... 23
`
`
`Matter of Mayers v. Kings County Hospital,
`29 A.D.3d 1239 (3d Dept. 2006) ...................................................................... 23
`
`
`Open Door Foods, LLC, v. Pasta Machines, Inc.,
`136 A.D.3d 1002 (2d Dept. 2016) .............................................................. 12-13
`
`
`Ortiz v. Wycoff Heights Medical Center,
`149 A.D.3d 1093 (2d Dept. 2017) .................................................................... 25
`
`
`Simpson v. Edghill,
`169 A.D.3d 737 (2d Dept. 2019) ...................................................................... 12
`
`
`Toomey v. Adirondack Surgical Associates,
`280 A.D.2d 754 (3d Dept. 2001) ...................................................................... 22
`iii
`
`
`

`

`COUNTER-STATEMENT OF QUESTIONS PRESENTED
`
`
`
`
`Whether the lower court’s decision to grant summary judgment dismissal to
`
`Defendants-Appellants on the issue of lack of informed consent, but to deny it to
`
`Defendants-Appellants on all remaining issues, based on the conflicting affidavits
`
`of each side’s expert witnesses, was proper?
`
`
`
`
`
`The answer is yes.
`
`COUNTER-STATEMENT OF THE NATURE OF THE CASE
`
`Plaintiffs-Respondents Parinaz Mokhtari and Adam Peterson respectfully
`
`submit this brief in response to the brief submitted by Defendants-Appellants,
`
`Wasik Ashraf, D. O., and Orthopedics and Sports Medicine, P.C., in which
`
`Defendants-Appellants appeal the decision by Acting Supreme Court Justice Craig
`
`Stephen Brown, which denied their motion for summary judgment dismissal of
`
`Plaintiffs-Respondents’ medical malpractice cause of action, except for the claim
`
`for lack of informed consent, which Justice Brown dismissed.
`
`
`
`In arguing that the lower court erred in denying most of their motion for
`
`summary judgment dismissal, Defendants-Appellants claim that: (a) Dr. Ashraf’s
`
`care was in accordance with good practice and did not proximately cause Ms.
`
`Mokhtari’s injuries; (b) dates not specifically addressed by plaintiffs in their
`
`opposition papers to the motion for summary judgment should result in partial
`
`summary judgment regarding care on those dates; (c) the claim for loss of
`
`
`
`1
`
`

`

`consortium by Ms. Mokhtari’s husband, Plaintiff-Respondent Adam Peterson,
`
`should be dismissed based on the absence of any malpractice on the part of
`
`Defendants-Appellants; and (d) the vicarious liability claim against Dr. Ashraf’s
`
`practice, Defendant-Appellant Orthopedics and Sports Medicine, P.C., should be
`
`dismissed because summary judgment should be granted against Dr. Ashraf.
`
`
`
`As will be developed below, the lower court’s decision was proper, based on
`
`the evidence presented to it, which included two conflicting opinions of Dr.
`
`Ashraf’s care, which will require resolution by a fact finder. Accordingly, the
`
`lower court was correct to deny most of Defendants-Appellants’ motion for
`
`summary judgment.
`
`COUNTER-STATEMENT OF FACTS
`
`1.
`
`Plaintiff-Respondent, Parinaz Mokhtari, sought treatment for left
`
`shoulder pain from Defendants-Appellants on December 7, 2015 (see records of care
`
`by Defendant OSM and Crystal Run Health Care at A717, A569-768).
`
`2. During an early visit with Dr. Ashraf, Ms. Mokhtari declined the offer
`
`of a cortisone injection for her shoulder (see transcript of Plaintiff of Parinaz
`
`Mokhtari’s deposition, A218). She has always tried to avoid medication in general,
`
`for fear of how her body will react (Id.).
`
`3. During her second visit with Dr. Ashraf, he recommended surgery for
`
`her shoulder, which had a torn lateral supraspinatus tendon (A227-228; A773).
`
`
`
`2
`
`

`

`4. During the same visit, there was no discussion of non-surgical options,
`
`or of the risks and benefits of the surgery (A228).
`
`5. Ms. Mokhtari’s third visit was at her own suggestion, so that she could
`
`have a full opportunity to explain to Dr. Ashraf her body’s sensitivity to medication
`
`(A229-230). During a previous C-section surgery, she experienced a bad reaction
`
`to morphine and a sudden drop in blood pressure (A230), and will not take even a
`
`Tylenol tablet if she can avoid it (A231).
`
`6. Ms. Mokhtari also told Dr. Ashraf about an overpowering reaction she
`
`had had to taking a small piece of a pill for migraine headaches (A233).
`
`7. Dr. Ashraf told Ms. Mokhtari that she would be given prescription pain
`
`medication for use after her surgery but did not inform her of any risks of
`
`constipation associated with the same medication (A238-239). Defendant did not
`
`mention taking stool softener with the pain medication (A239).
`
`8. Although Ms. Mokhtari read and signed the consent form before her
`
`surgery, she has no memory of Dr. Ashraf discussing the risks with her (A244-245).
`
`9. On the morning of her shoulder surgery, there was no discussion
`
`concerning any risks, benefits, and/or alternatives with Dr. Ashraf (A247).
`
`10. There was no mention of stool softener, no mention of any particular
`
`type of diet to be followed post-operatively, and no recommendation to drink plenty
`
`of liquids (A248, 249; see deposition transcript of Ms. Mokhtari’s husband, Plaintiff-
`
`
`
`3
`
`

`

`Respondent Adam Peterson, A860).
`
`11. Dr. Ashraf preformed shoulder surgery on Ms. Mokhtari on February
`
`4, 2016, at Eastern Orange Ambulatory Surgery Center (see records of Plaintiff-
`
`Respondent’s care, A770-810).
`
`12. The discharge instruction sheet provided to Ms. Mokhtari upon being
`
`released from Eastern Orange Ambulatory Surgery Center referenced the Percocet
`
`and Keflex post-operative medications she was to take, warned against use of heavy
`
`machinery, drinking alcohol, signing contracts, and getting behind the wheel of her
`
`car too soon (see Patient Discharge Instructions, A1275). It provided detailed
`
`instructions on post-operative wound care, and initial exercise of the elbow and
`
`shoulder (A1275). But there was nothing in the Discharge Instructions about
`
`Percocet potentially causing constipation, or about what a patient should do if she
`
`became constipated (A1275; A275-276).
`
`13. The Percocet prescribed by Dr. Ashraf was at Plaintiff-Respondent’s
`
`Target pharmacy after the surgery (A259).
`
`14. By the evening of the next day, February 5, 2016, Ms. Mokhtari’s
`
`stomach began to hurt, despite having drunk four 16-ounce bottles of water (A266-
`
`268). However, she believed, at that time, that the stomach pain may have been
`
`caused by the padding on her post-surgical shoulder sling (A269).
`
`15. By February 6, 2016, Ms. Mokhtari, who had two to three daily bowel
`
`
`
`4
`
`

`

`movements prior to her shoulder surgery, had not moved her bowels since February
`
`4, 2016, and began to be concerned (A262, 263, 270).
`
`16. That day, Plaintiff-Respondent’s husband, Adam Peterson, telephoned
`
`Dr. Ashraf’s office in the morning because of those concerns (A275, 281; A878-
`
`879).
`
`17. By February 7, 2016, Ms. Mokhtari’s stomach hurt more, and she felt
`
`more pressure in the area (A282-283). She continued to believe it might be
`
`connected to the sling she was wearing (A285).
`
`18. On February 7, 2016, Plaintiff-Respondent still had not had a bowel
`
`movement, prompting her to express her concern to her husband (A283). Neither
`
`she nor her husband tried calling Dr. Ashraf that day, because it was a Sunday and
`
`his office was closed (A284).
`
`19. On February 8, 2016, Ms. Mokhtari was in significantly more stomach
`
`pain, accompanied by pressure, which frightened her and prompted her to ask her
`
`husband to call Dr. Ashraf’s office to inquire about her pain, her medications,
`
`whether she should be concerned, and what the lack of a bowel movement meant
`
`(A286-287; A881-883).
`
`20. Plaintiff-Respondent’s husband called Dr. Ashraf’s office six times
`
`between 11:00 a.m. and 2:17 p.m. that day, continually leaving messages, but not
`
`hearing back from Dr. Ashraf (A290; A883, 884, 889).
`
`
`
`5
`
`

`

`21. At 2:47 p.m. on February 8, 2016, Dr. Ashraf called Plaintiff-
`
`Respondent, Parinaz Mokhtari, who informed him that she was in significant pain in
`
`her stomach and had not moved her bowels—something that was not normal for her,
`
`given her frequency of bowel movements before the surgery (A291). She
`
`specifically alerted Dr. Ashraf that she was concerned by the lack of any bowel
`
`movement (A296).
`
`22. Dr. Ashraf prescribed a stool softener, Doc-U-Lace, assuring Ms.
`
`Mokhtari that it would fix her constipation problem, and apologized for his delay in
`
`getting back to her, explaining that he had been on vacation (A292-295). During Dr.
`
`Ashraf’s deposition, he was unable to answer whether he had told either Ms.
`
`Mokhtari or her husband, Adam Peterson, that he had been away on vacation, which
`
`accounted for his inability to timely return their phone calls (see deposition transcript
`
`of Defendant-Appellant Wasik Ashraf, D.O., A1149, 1152, 1153).
`
`23. Dr. Ashraf said nothing about whether Ms. Mokhtari should call him
`
`back, call another doctor, or go to an emergency room if she did not move her bowels
`
`within the next day or two (A296; A1157, 1158).
`
`24. By February 9, 2016, Ms. Mokhtari had still not had a bowel
`
`movement, and telephoned Dr. Ashraf’s office again (A298). She reached a woman
`
`at 4:40 p.m. and told her of her symptoms: she had still had no bowel movement
`
`despite taking the Doc-U-Lace, and she was experiencing significant stomach pain
`
`
`
`6
`
`

`

`(A299).
`
`25. The same woman told Ms. Mokhtari that she needed to give the Doc-
`
`U-Lace time to work, and made no recommendations concerning going to an
`
`emergency room or urgent care (A299-300).
`
`26. Ms. Mokhtari did not request more pain medication for her shoulder,
`
`but when the woman at Dr. Ashraf’s office learned that Ms. Mokhtari had one pill
`
`left, she advised Ms. Mokhtari that the office would call in a new prescription (A301-
`
`303).
`
`27. According to Dr. Ashraf, On February 9, 2016, he did not learn, through
`
`any source, that both Ms. Mokhtari and her husband were trying to reach him
`
`because of their concerns about Ms. Mokhtari’s continued constipation and stomach
`
`pain (A1156). Dr. Ashraf acknowledged that he made no efforts on February 9, 2016,
`
`to contact either Ms. Mokhtari or her husband to see if Ms. Mokhtari had moved her
`
`bowels yet (A1156).
`
`28. The oxycodone prescription was filled by a colleague of Dr. Ashraf’s
`
`at Defendant-Appellant Orthopedics and Sports Medicine, P.C., (“OSM”) Esteban
`
`Cuartas, M.D. (A1159-1167; see photograph of the prescription label, A1276;
`
`A305).
`
`29. Ms. Mokhtari never spoke with Dr. Cuartas before receiving the
`
`prescription (A304).
`
`
`
`7
`
`

`

`30. Dr. Cuartas did not make any efforts to reach out to Dr. Ashraf on
`
`February 10, 2016, the day the prescription was written (A1160).
`
`31. The records maintained by OSM for February 10, 2016, concerning Dr.
`
`Cuartas’s writing of the new prescription have no mention of Ms. Mokhtari’s lack
`
`of a bowel movement since the day of her surgery (A1164).
`
`32. Dr. Ashraf does not know whether his colleague, Dr. Cuertas, examined
`
`or spoke to Ms. Mokhtari before issuing the new prescription for oxycodone
`
`(A1163-1164).
`
`33. On February 10, 2016, Ms. Mokhtari called Dr. Ashraf again, and
`
`reported to office staff that her stomach pain was getting much worse, that she was
`
`very concerned about the amount of time that had passed since her last bowel
`
`movement, and that the Doc-U-Lace was not working (A305, 308). She still could
`
`not reach Dr. Ashraf, who, according to the staff member with whom Ms. Mokhtari
`
`spoke, was away on vacation (A305). There was no suggestion from Dr. Ashraf’s
`
`office that Ms. Mokhtari go to an emergency room or urgent care on February 10,
`
`2016 (A306). Ms. Mokhtari did not hear back from Dr. Ashraf that day (A307). She
`
`continued taking the prescribed stool softener and continued drinking water (A306).
`
`34. Dr. Ashraf made no efforts to contact Ms. Mokhtari or her husband on
`
`February 10, 2016, to find out whether Ms. Mokhtari had moved her bowels (A1158-
`
`1159).
`
`
`
`8
`
`

`

`35. By the next morning, February 11, 2016, she had still not moved her
`
`bowels, and was in severe pain (A309). At about 7:45 a.m., she sat on the toilet and
`
`tried to move her bowels, but immediately felt “something very wrong,” and started
`
`screaming. It was as if something had popped or exploded, and the pain was
`
`excruciating. She asked her husband to call 911 (A309-311).
`
`36. The ambulance that arrived in response took her to St. Luke’s Cornwall
`
`Hospital, where the emergency room staff administered an enema, which was
`
`excruciatingly painful (A313-314). She began vomiting and was told she would be
`
`transferred to St. Luke’s Newburgh Hospital (A314-315).
`
`37. There, radiology studies identified a bowel rupture which had resulted
`
`from the use of the pain medication, according to medical staff (A317). She needed
`
`emergency abdominal surgery because of the perforation in her intestine, which had
`
`led to an infection from her feces. The damaged portion of her intestine would be
`
`removed, and the surgeons would place a colostomy bag. Ms. Mokhtari was in shock
`
`(A318-319).
`
`38. The surgery was performed that day, and Ms. Mokhtari remained in the
`
`hospital for eight days (see St. Luke’s Hospital Hospital’s Discharge Summary,
`
`A1318, documenting an eight-day admission, from February 11, 2016 through
`
`February 19, 2016; A321).
`
`39. Dr. Ashraf visited Ms. Mokhtari as she recovered in the hospital. He
`
`
`
`9
`
`

`

`told her that he had been away, but came as soon as he could. He further shared that
`
`he had performed extensive research looking for a case like hers, but found that she
`
`was the only patient in the world that had experienced this kind of outcome (A323-
`
`324).
`
`40. When plaintiff was discharged home, she had a large open wound in
`
`her stomach, and a colostomy bag, the care of which required home nursing
`
`assistance (A330). It was “hell for 3 months” (A332). She could not look at her
`
`wounds and the colostomy bag during the first week. She could not sleep, play
`
`with her young daughter, or read to her, and could not be intimate with her
`
`husband. She was so disfigured that she no longer felt like a woman (A332-334).
`
`41. She returned to St. Luke’s Hospital in late April for a five-day
`
`admission so that the colostomy could be reversed (A337; see St. Luke’s Hospital
`
`Discharge Summary, A369). She developed multiple scars in her abdominal area as
`
`a result of the surgeries (A339-341).
`
`42. She also needed several more surgeries after the reversal of the
`
`colostomy. After developing new abdominal and back pain at the end of July 2016,
`
`the surgeon who had performed the initial abdominal surgeries, Dr. Thomas Robb,
`
`diagnosed a large mass in her stomach that had come about as a result of the prior
`
`surgeries. He explained that she felt back pain because her organs were being pushed
`
`aside to make room for the mass (A341-343, 346). Dr. Robb drained the fluid from
`
`
`
`10
`
`

`

`the mass. Ms. Mokhtari spent July 28, 2016 through July 31, 2016 in the hospital
`
`(A23).
`
`43. Following that admission, she learned there were additional masses that
`
`were stuck to her ovaries, necessitating a consultation with gynecologist Dr. Kara
`
`Long Roche, at Memorial Sloan Kettering in Manhattan (A346-350). Though the
`
`masses were not cancerous, genetic testing results—based on Ms. Mokhtari’s family
`
`history of ovarian cancer—identified a small chance that she would develop ovarian
`
`cancer later in life, prompting Dr. Roche and an MSK geneticist to recommend
`
`removing the ovaries, since Ms. Mokhtari would have to be opened again to remove
`
`the masses (A351-354). Ms. Mokhtari agreed to move ahead with the surgery, but
`
`was warned by Dr. Roche that she (Dr. Roche) might need to also remove Ms.
`
`Mokhtari’s uterus, depending on what she found during surgery (A354-355). Ms.
`
`Mokhtari learned, after the surgery, that her uterus had been removed during the
`
`September 28, 2016 surgery at MSK (A354-455).
`
`44.
`
`In July, 2017, Ms. Mokhtari was diagnosed with a hernia that had
`
`developed because her stomach had been degraded by the multiple surgeries she had
`
`undergone since her bowel perforation. Dr. Brady, a surgeon at MSK, repaired the
`
`hernia (A367-369).
`
`45. Since that surgery, Ms. Mokhtari has addressed her early menopause
`
`with hormone replacement therapy, and nutrition therapies (A371-377). She has
`
`
`
`11
`
`

`

`been unable to work the same hours she did before her bowel perforation (A381-
`
`388). She and her husband, Plaintiff-Respondent Adam Peterson, are no longer as
`
`intimate as they once were (A501-504; 1050-1053).
`
`ARGUMENT
`
`POINT 1
`
`The Decision by the Lower Court Denying Summary Judgment Dismissal of
`Plaintiffs-Respondents’ Claims of Medical Malpractice Against Defendants-
`Appellants Was Proper, and Was Based on the Evidence Before It, Which
`Included Two Diametrically Opposed Expert Affidavits.
`
`A defendant moving for summary judgment dismissal has the burden of
`
`making a prima facie showing that he is entitled to judgment as a matter of law,
`
`offering sufficient proof to demonstrate the absence of any material issues of fact.
`
`Matter of Eighth Judicial Dist. Asbestos Litigation v. Beazer East, Inc., et al, 33
`
`N.Y.3d 488, 496 (2019); Simpson v. Edghill, 169 A.D.3d 737, 738 (2d Dept.
`
`2019). If the moving party meets that initial burden, the burden shifts to the
`
`plaintiff, who must put forth evidentiary proof in admissible form showing the
`
`existence of material questions of fact which require a trial of the action. Matter of
`
`Eight Judicial Dist. Asbestos Litigation, 33 NY3d at 496; Jacobsen v. New York
`
`City Health & Hosps. Corp, 22 NY3d 824, 833 (2014). Summary judgment
`
`dismissal is not appropriate in medical malpractice actions where there are
`
`conflicting opinions by the parties’ medical experts. Simpson, 169 A.D.3d at 738;
`
`see also Open Door Foods, LLC, v. Pasta Machines, Inc., 136 A.D.3d 1002, 1005
`
`
`
`12
`
`

`

`(2d Dept. 2016) (inappropriate to grant summary judgment motion where there are
`
`conflicting inferences or issues of credibility regarding material facts).
`
`
`
`Here, Defendants-Appellants moved for summary judgment dismissal of
`
`Plaintiffs-Respondents’ action for medical malpractice, based primarily on the
`
`Physician Affidavit of Defendant-Appellant, Wasik Ashraf, D.O. (A32-42). Setting
`
`aside, for the moment, any concerns that a court might have about the defendant in
`
`a medical malpractice action serving as his own expert witness, Dr. Ashraf’s
`
`affidavit presented a version of events that was in conflict with the testimony of
`
`both Plaintiffs-Respondents and was largely freed from any grounding in the
`
`medical records, due to the poor-to-non-existent maintenance of records by the
`
`Defendants-Appellants (see Plaintiffs’ Affirmation in Opposition, A1270-1271).
`
`
`
`Despite these inherent weaknesses, and despite the obvious credibility
`
`issues, Justice Brown found that Defendants-Appellants met their initial burden,
`
`because he took the affirmative step of moving on to a review of Plaintiffs-
`
`Respondents’ papers, and particularly, the affidavit by their expert physician,
`
`Dharmesh Vyas, M.D. Where Dr. Ashraf claimed, in his affidavit, that he had
`
`done everything right while treating Ms. Mokhtari and absolved himself of all
`
`responsibility for her injuries, Dr. Vyas painted a starkly different picture,
`
`identifying several departures from the standard of care committed by Dr. Ashraf,
`
`and causally connecting those departures to Ms. Mokthari’s injuries. In analyzing
`
`
`
`13
`
`

`

`the evidence presented pursuant to a summary judgment motion, the court must
`
`view it in the light most favorable to the non-moving party and must draw every
`
`available inference in the non-moving party’s favor. Matter of the Eighth Judicial
`
`District Asbestos Litigation, 33 N.Y.3d at 496; Greco v. Boyce, 262 A.D.2d 734
`
`(3d Dept. 1999).
`
`
`
`Accordingly, Justice Brown found that Dr. Ashraf’s opinions were
`
`contradicted by the plaintiffs’ expert, creating a conflict of views that required
`
`resolution by a finder of fact (A8-9). Under these circ*mstances, Justice Brown’s
`
`denial of the summary judgment motion was not only entirely proper, but also
`
`mandated by case law.
`
`POINT 2
`
`(a) Defendants-Appellants Are Not Entitled to Partial Summary Judgment
`Concerning Malpractice Committed on February 4, 5, 6, 7, 10 and 11, Because
`They Failed to Raise the Claim in Their Motion for Summary Judgment,
`Rendering It Unpreserved for This Court’s Review.
`
`Defendants-Appellants claim they are entitled to summary judgment for the
`
`
`
`acts of malpractice claimed against them on February 4, 5, 6, 7, 10 and 11 because
`
`the plaintiffs “failed to address most of these dates in their opposition to summary
`
`judgment on them” (Defendants-Appellants’ Brief, p. 11). Defendants-Appellants
`
`are incorrect, for two reasons.
`
`
`
`First, they have made this argument for the first time in their brief. They
`
`never requested partial summary judgment with regard to February 4, 5, 6, 7, 10
`
`
`
`14
`
`

`

`and 11 in their motion for summary judgment. An undeveloped and generalized
`
`paragraph touched on the concept (see defendants’ Affirmation in Support,
`
`paragraph 49, A27), claiming that while the claims of negligence were said to have
`
`taken place from February 4, 2016 to February 11, 2016, “the claim is much more
`
`limited in time,” and that any claim against Dr. Ashraf that might survive their
`
`motion had to be “limited to the care and treatment of February 8, 2016.” This
`
`argument is quite different from that made now in Defendants-Appellants’ brief.
`
`Because it was not raised in the court below, it is not preserved, and should not be
`
`considered by this Court.
`
`(b) Plaintiffs Addressed the Allegations of Medical Malpractice
`Linked to the Dates of February 8, 2016, through February 11, 2016, Showing
`Departures from the Standard of Care Throughout, All of Which Caused or
`Contributed to Ms. Mokhtari’s Colon Perforation, So That No “Partial
`Summary Judgment” With Regard to Any of Those Dates Is Warranted.
`
`
`Second, at least with regard to the dates specifically addressed by plaintiff’s
`
`expert orthopedic surgeon, Dr. Vyas—February 8, 2016 through February 11,
`
`2016—plaintiffs did address them, and did prove that Dr. Ashraf departed,
`
`multiple times, from the appropriate standard of care, so that no grant of summary
`
`judgment dismissal, partial or otherwise, was appropriate.
`
`Defendants-Appellants have conceded that the events of February 8th and 9th
`
`of 2016 were sufficiently opposed in Plaintiffs’ opposition to their motion for
`
`summary judgment, leaving February 10th and 11th of 2016 for examination. By
`
`
`
`15
`
`

`

`February 10, 2016, two days had passed since Dr. Ashraf prescribed the Doc-U-
`
`Lace stool softener after learning that his patient, taking opioid medication he had
`
`prescribed on February 4, 2016, had not moved her bowels since then, and was
`
`experiencing significant stomach pain (see Plaintiffs’ Affirmation in Opposition,
`
`A1264, 1265; see Expert Affirmation of Dharmesh Vyas, M.D., paragraphs 6 & 7,
`
`A1278, 1279) Dr. Ashraf had departed from the standard of care (on February 8,
`
`2016) by failing to provide any follow-up instructions to Ms. Mokhtari regarding
`
`next steps. “He said nothing about whether she should call him back, call another
`
`doctor, or go to an emergency room if she remained constipated over the next one
`
`or two days…[and] should have instructed her to come to his office, or go to an
`
`emergency room if the stool softener did not quickly resolve the problem”
`
`(A1279). February 10, 2016 was within the time period articulated by Dr. Vyas
`
`during which a patient in Ms. Mokhtari’s circ*mstances should have been followed
`
`more closely by her surgeon, and should have been instructed regarding steps to
`
`take if the stool softener did not provide an immediate change in symptoms.
`
`February 10, 2016 is also the date when Dr. Cuartas, a colleague of Dr.
`
`Ashraf’s who also worked for OSM, prescribed additional opioids—the medication
`
`causing her constipation--to Ms. Mokhtari without consulting Dr. Ashraf, and
`
`without examining or even speaking to Ms. Mokhtari (A304; 1159-1167). Even
`
`worse, the “records” maintained by OSM for February 10, 2016 regarding the new
`
`
`
`16
`
`

`

`prescription of opioids contain no mention of Ms. Mokhtari’s inability to move her
`
`bowels going back to the day of her surgery on February 4, 2016 (A1164; see
`
`Expert Affirmation of Dharmesh Vyas, M.D., paragraph 12, A1280).
`
`This unfortunate and preventable failure to properly keep records and to
`
`communicate among physicians treating the same patient was also a departure
`
`from the standard of care (see Expert Affirmation of Dharmesh Vyas, M.D.,
`
`paragraph 13, A1280, 1281). The failure in communication “resulted in giving
`
`plaintiff more of the medication that was already obstructing her bowel, which
`
`contributed to her bowel rupture” (A1281).
`
`February 10, 2016 was also another day during which Dr. Ashraf made no
`
`efforts to contact Ms. Mokhtari or her husband to find out whether she had moved
`
`her bowels or had had any relief from her stomach pain (A1158-1159), despite
`
`having been made fully aware of Ms. Mokhtari’s complaints just two days earlier,
`
`when he spoke to her over the telephone.
`
`With regard to February 11, 2016, there was not much time available for Dr.
`
`Ashraf to continue failing his patient, since she was rushed to the hospital in the
`
`early morning hours after experiencing what felt like an explosion in her gut that
`
`set off hours of excruciating pain and manifested itself to medical staff at St.
`
`Luke’s Hospital as a bowel rupture (A309-319; see Plaintiffs’ Affirmation in
`
`Opposition, paragraphs 38-41, A1267). She had been waiting to hear back from
`
`
`
`17
`
`

`

`Dr. Ashraf after reaching out to him again on February 10, 2016, as her symptoms
`
`worsened (A305-308; Plaintiffs’ Affirmation in Opposition, paragraph 36, A1266,
`
`1267).
`
`Despite the impediments to Defendants-Appellants’ claims, Plaintiffs-
`
`Respondents concede, based on the affirmation of their expert orthopedist, that all
`
`claims alleged to have occurred between February 4, 2016, and February 7, 2016,
`
`should be dismissed.
`
`POINT 3
`
`Dr. Ashraf and OSM Departed from the Orthopedic Standard
`Of Care in Treating Plaintiff-Respondent from February 8, 2016 Through
`February 11, 2016, and Their Departures Directly Caused Her Injuries.
`
`All of the credible evidence in this case shows that Dr. Ashraf and his fellow
`
`employees at OSM departed from the orthopedic standard of care when treating
`
`Plaintiff-Respondent, Parinaz Mokhtari, and that those departures caused her colon
`
`to perforate, necessitating multiple painful and deforming additional surgeries. The
`
`departures were fully articulated in the expert affirmation of orthopedic surgeon,
`
`Dharmesh Vyas, M.D., who unlike Dr. Ashraf, is board certified by the American
`
`Board of Orthopedic Surgery, has authored numerous scholarly articles in the field
`
`of orthopaedics, and teaches medical students at a major metropolitan medical
`
`center (A1277). Also unlike Dr. Ashraf, Dr. Vyas is not a defendant in this case.
`
`He has performed multiple orthopedic surgeries over the years, on shoulders,
`
`
`
`18
`
`

`

`knees, and hips, and has prescribed narcotic pain medication to them post-
`
`operatively. Unlike Dr. Ahsraf, Dr. Vyas always monitors such patients closely
`
`because of the possibility of complications due to opioid-induced constipation
`
`(A1278).
`
`Defendants-Appellants start their effort to portray Dr. Ashraf as a competent
`
`physician by attempting to mislead this Court about an allegedly new theory of the
`
`case raised by Plaintiffs in their opposition to the motion for summary judgment.
`
`Like most of the arguments in Defendants-Appellants’ brief, this is unpreserved,
`
`because defendants never raised the issue in the lower court. However, it is also
`
`without merit. Defendants-Appellants cite to plaintiffs’ expert orthopedist’s
`
`affirmation, in which he opines that “Dr. Ashraf should have instructed her to
`
`come to his office, or go to an emergency room, if the