2018 02:55 pm

SUPREME COURT OF THE CITY OF NEW YORKCOUNTY OF KINGS----------------------------------------------------------------------- X

OLGA BEKKER, as Administratrix of the Estate of

LIDIYA KANEVSKY ' . AFFIRMATION INPlamtiff '

SUPPORT OF MOTION FORSUMMARY JUDGMENT

v.Index No.: 506541/15

JEFFREY BERGMAN, M.D., VALERIYA

VAYNSHTEYN, M.D. and NEW YORK CITY HEALTH

& HOSPITALS CORPORATION

Defendants.

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I, Jonathan Waldauer, an attorney admitted to practice law before the Courts of

the State of New York, affirm the following to be true under the penalties of perjury:

1. I am an Associate Counsel in the Office of Andrea Cohen, Acting General

Counsel of the NYC Health + Hospitals. This office represents all of the defendants, Jeffrey

Bergman, M.D., Valeriya Vaynshteyn, M.D. and New York City Health & Hospitals Corporation,

in this matter.

2. I am fully familiar with the facts and circumstances of this case by virtue of

my review of the file maintained by this office.

3. This affirmation is submitted in support of thedefendants'

motion for

summary judgment and dismissal of the plaintiff's Complaint.

4. The plaintiff alleges that the defendants committed medical malpractice

during the decedent Lidiya Kaneysky's Coney Island Hospital (CIH) admission from June 9, 2014

through June 20, 2014. The plaintiff claims that the defendants failed to diagnose and treat Ms.

Kaneysky's cardiac issues, among other identical, broad, and nonspecific allegations of negligence

against the defendants, which was a proximate cause of Ms. Kanevsky s injuries and death.

FILED: KINGS COUNTY CLERK 03/27/2018 02:55 PM INDEX NO. 506541/2015

NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 03/27/2018

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5. The plaintiff's claims are without merit and this case should be dismissed

with prejudice against all of the defendants. As expert Dr. Stanley Schneller states, at the time of

Ms. Kaneysky's admission to CIH, she was an elderly and infirm woman who suffered from

"numerous ailments, illnesses, comorbidities, and underlying chronic medicalconditions."

Exhibit

A at $38. The defendants properly treated all of her complaints and appropriately cared for her

during her 11 day admission and her death "was the natural sequala of her illness and not the result

of any alleged malpractice on the part of thedefendants."

Id.

EXHIBITS

6. The exhibits attached to this motion are as follows:

Exhibit A - Expert Affirmation of cardiologist Dr. Stanley Schneller

Exhibit B - Plaintiffs'Plaintiffs Summons and Complaint

Exhibit C - Defendants'Answers

Exhibit D - Plaintiffs'Plaintiffs Bills of Particulars

Exhibit E - Note of Issue

Exhibit F - Lidiya Kaneysky's Coney Island Hospital Records on DVD

Exhibit G - Plaintiff's EBT transcript

Exhibit H - Dr. Vaynshteyn's EBT transcript

Exhibit I - Dr. Bergman's EBT Transcript

Exhibit J - Lidiya Kanevksy's records from Dr. Elvira Kamenetsky and

Dr. Aleksey Kamenetsky

Exhibit K - Lidiya Kanevksy's records from Dr. Ruvim Krumpkin

Exhibit L - Lidiya Kanevksy's records from Dr. Calogero Gambino

Exhibit M -Autopsy Report



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PROCEDUAL HISTORY

7. On May 27, 2015, the plaintiffs filed a Summons and Complaint. Exhibit B.

8. On June 25, 2015, all of the defendants served Answers to the plaintiffs

Complaint. Exhibit C.

9. On or about August 21, 2015, the plaintiffs served Verified Bills of

Particulars as to all defendants. Exhibit D.

10. On November 27, 2017, the plaintiff filed the Note of Issue. Exhibit E.

FACTS

11. On June 9, 2014, at 11:10 a.m., EMS found Lidiya Kaneysky, 85, at home,

unresponsive in severe respiratory distress in arterial fibrillation (A-fib) with an inconsistent pulse.

She was intubated and transported to Coney Island Hospital (CIH). Exhibit F.

12. Ms. Kaneysky arrived in the emergency room at CIH at 11:55 a.m. with her

daughter, the plaintiff Olga Bekker. Ms. Kaneysky had a significant past medical history,

including, smoking, multiple previous episodes of deep vein thromboses (DVTs), recently

fractured left arm and left leg suffered in a motor vehicle accident in January 2014, dementia,

chronic kidney insufficiency, mild aortic senosis, severe mitral regurgitation, severe pulmonary

hypertension, chronic obstructive pulmonary disease (COPD), and moderate to severe Alzheimer's

disease. Exhibit F, J, K, L. She received home health aide services seven days a week for 12 hours

per day. Exhibit G at p. 11-12.

13. Ms. Kaneysky underwent pulmonary, cardiac, and infectious disease

consultations in the ED. Tests revealed A-fib and cardiac ischemia, but cardiac enzymes were

normal. Chest x-ray revealed pulmonary congestion and possibly pulmonary embolism. Doppler

revealed multiple, acute bilateral DVTs in thighs. Urinalysis was positive for urinary tract infection

(UTI) and she was started on broad spectrum antibiotics. Blood tests revealed acute kidney injury

and elevated WBC. Arterial blood gases revealed metabolic acidosis. Differential diagnosis was



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respiratory failure due to aspiration, seizures, syncope, and/or pulmonary embolism. Exhibit F.

Chest CT with contrast could not be performed due to chronic kidney insufficiency. Exhibit H at

p. . 27-28.

14. Cardiology assessment was respiratory failure due to apnea and possible

aspiration, metabolic acidosis, abdominal pain and vomiting, and a-fib with rapid ventricular rate

and wide complete tachycardia, maximum of seven to eight beats. Plan was to continue beta

blockers to control A-fib and titrate if blood pressure was stable, serial cardiac enzymes and EKGs,

echocardiogram, electrolyte monitoring, diuretics as needed, chest x-ray, ICU evaluation, and IV

heparin. Exhibit F.

15. At 11:40 p.m. on June 9, Ms. Kaneysky was admitted to the medical

intensive care unit (MICU). Head CT revealed atrophy and chronic ischemic changes, old lacunar

infarct, but no acute injury. Exhibit F.

16. On June 10, neurology diagnosed Ms. Kaneysky with anxiety and dementia.

Chest x-ray revealed enlarged heart, dilated and calcified aorta, and new density in right lower

lung. G-tube was placed for feedings. Ms. Kaneysky was placed in restraints because she was

confused and pulling out lines. Renal ultrasound revealed bilateral chronic cysts without

hydronephrosis. Family decided against tPA for leg DVTs. WBC count normalized. Troponin

increased to 0.293 before decreasing to 0.27 on June 10. CK remained normal. Urine cultures were

positive for E. coli and IV ciprofloxin was started based on sensitivities and all other antibiotics

were discontinued. Exhibit F.

17. On June 11, head CT revealed no obvious acute process or change. Chest

x-ray revealed worsening of right perihilar infiltrate and decrease in right lower lobe atelectasis.

Ms. Kaneysky was still in A-fib. Cardiac echo revealed left ventricle ejection function at 55-60%

with abnormal relaxation in diastolic function, pulmonary artery systolic pressure of 53 mmHg,

and trace pericardial effusion. The study was noted to be "suggestive of submassivePE."

Heparin



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was continued and Coumadin started. Ms. Kaneysky was extubated and placed on continuous

oxygen. Exhibit F.

18. On June 12, Ms. Kaneysky experienced episodes of hypertension and

tachycardia overnight and her medications were adjusted. She was alert, but confused at times, and

remained in restraints. Exhibit F.

19. On June 13, Ms. Kaneysky was still in a-fib. She was transferred to a

medicine floor and taken out of restraints. Her oxygen saturation on room air was extremely low.

Exhibit F.

20. On June 14, defendant medicine resident Dr. Jeffrey Bergman documented

that Ms. Kaneysky reported nausea and abdominal pain, but was eating well and felt better overall.

This is Dr. Bergman's initial involvement with Ms. Kaneysky's care. She denied SOB and moved

all extremities. Dr. Bergman noted Ms. Kaneysky kept removing her nasal cannula and he ordered

that she be placed back in restraints. The proper dose of Coumadin (anticoagulation) was still being

determined. Diagnosis was likely hypoxia secondary to pulmonary embolism. Exhibit F.

21. On Sunday, June 15, Heparin was discontinued and Coumadin was

continued. Exhibit F.

22. On June 16, defendant medicine attending Dr. Valeriya Vaynshteyn was

transferred Ms. Kaneysky's case. Exhibit H at p. 17. Ms. Kaneysky was unable to provide a

medical history and could only answer yes or no questions. Id. at p. 22. Dr. Vaynshteyn noted that

Ms. Kaneysky looked "acutelyill"

and complained of nausea. Her extremities showed bilateral

chronic trophic changes and mild edema. She was saturating at 93% on nasal cannula and 84% on

room air. INR was elevated and Coumadin was held. Chest x-ray revealed bilateral perihilar

infiltrates. Diagnoses were A-fib, PE, renal failure, and altered mental status. Exhibit F.

23. On June 17, Dr. Bergman, working under the supervision of Dr.

Vaynshteyn, (Exhibit Iat p. 17-18) noted crackles at bilateral bases and rhonchi in right upper lung



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field. Dr. Bergman again had to reapply Ms. Kaneysky's oxygen mask, "which was again around

neck.herneck."

She was saturating at 86% on room air. She exhibited bilateral edema in extremities,

right worse than left. Dr. Bergman documented diastolic heart failure with worsening pulmonary

vascular congestion and discontinued fluids. Creatinine was trending down with gentle hydration.

Dr. Bergman noted INR was therapeutic, but proper dose of Coumadin had still not been

established. He ordered a rehab consult, performed that day, and which recommended physical

and occupational therapy. Dr. Vaynshteyn noted crepitation over lung bases on exam. Exhibit F.

24. On June 18, Dr. Vaynshteyn noted mild edema in extremities. INR was

therapeutic. Blood pressure was uncontrolled so Dr. Vaynshteyn increased hydralazine and added

Lasix. Exhibit F.

25. On June 19, Dr. Bergman noted Ms. Kaneysky was being treated for COPD

and heart failure. He further documented that her oxygen saturation on room air was 84% and that

she required continuous oxygen. INR was sub-therapeutic. Chest x-ray revealed new right pleural

effusion, right lower lobe density possible representing consolidation or atelectasis, and left lung

base linear atelectasis. Dr. Vaynshteyn noted BP was still elevated and increased hydralazine.

Exhibit F.

26. Dr. Bergman repeatedly told Ms. Bekker that her mother would die if she

did not maintain her oxygen mask. Exhibit I at p. 28.

27. On Friday, June 20, INR was still sub-therapeutic and Coumadin was

increased. The plan was to delay discharge until the proper dose of Coumadin could be established,

but Ms. Bekker wanted her mother discharged that day and signed a Refusal of Treatment form

documenting the disagreement with hospital staff. Exhibit F.

28. On the day of discharge, Dr. Vaynshteyn spoke with non-party resident Dr.

Pongrattanaman and said that Ms. Kaneysky was not cleared for discharge. Exhibit H at p. 45-46.

Dr. Pongrattanaman told Dr. Vaynshteyn that Ms. Bekker was adamant about taking her mother



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home that day. Dr. Vaynshteyn then spoke directly with Ms. Bekker and said that her mother

should remain in the hospital. Ms. Bekker responded, "I am taking her homeanyway."

Id.

29. To accommodate the family, Dr. Vaynshteyn ordered Lovenox injections

for three days to be given by Ms. Bekker. Nursing staff instructed her on the proper way to

administer the injection. Dr. Vaynshteyn continued Coumadin, blood pressure medications, and

continuous oxygen supplementation. She also recommended chest x-ray in two to three weeks.

Ms. Kaneysky was to follow with her primary care physician on June 23 for INR monitoring and

Coumadin refills. Ms. Bekker also reported that she had a machine at home to monitor INR.

Appointments were scheduled for the cardiology clinic on June 30 and pulmonary clinic on July

7. Exhibit F.

30. On June 20, at approximately 2:30 p.m., Ms. Kaneysky was discharged

from Coney Island Hospital and transported home by ambulance. Dr. Bergman testified that just

before Ms. Kaneysky was discharged:

I went to the room to say goodbye to the patient and the daughter,

where once again I saw the patient without her oxygen on. Again, I

firmly spoke to the daughter, telling her that if she doesn't have her

oxygen on, she will die.

Exhibit Iat p. 28-29.

31. At 3:12 p.m., EMS found Ms. Kaneysky at home unconscious, apneic,

pulseless, and in cardiopulmonary arrest for at least five minutes. She could not be revived and

was pronounced dead at Coney Island Hospital at 4:12 p.m. on June 20, 2014. Exhibit F.

32. Private autopsy, performed the day after Ms. Kaneysky's death, revealed

COPD and the cause of death was listed as hypertensive and atherosclerotic cardiovascular disease

with prior myocardial infarction and congestive heart failure. There was no evidence of acute or

recent myocardial infarction. Exhibit M.



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STANDARD OF REVIEW

33. The party moving for summary judgment must make a prima facie showing

of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the

absence of any material issues of fact. See CPLR § 3212(b); see also Alvarez v. Prospect Hosp.,

68 N.Y.2d 320 (1986) (citing Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985);

Zuckerman v. City ofNew York, 49 N.Y.2d 557 (1980)). The moving party may submit deposition

transcripts, documents, and other proof annexed to an attorney's affirmation in support of its

motion. Olan Farrell Lines, 64 N.Y.2d 1092 (1985). Once the movant has submitted sufficient

proof, the burden shifts to the opposing party to demonstrate a material issue of fact that must be

determined by a jury. Zuckerman, 49 N.Y.2d at 562.

34. To sustain a claim for medical malpractice, the plaintiff must demonstrate

both a departure from accepted medical practice and that such departure was a proximate cause of

the plaintiff's injury. Mosezhnik v. Berenstein, 33 A.D.3d 895 (2d Dep't 2006); Amsler v. Verrilli,

119 A.D.2d 786 (2d Dep't 1986). "General allegations of medical malpractice, merely conclusory

and unsupported by competent evidence tending to establish the essential elements of medical

malpractice, are insufficient to defeat [a motion for] summaryjudgment."

framer v. Rosenthal,

224 A.D.2d 392 (2d Dep't 1996). An affirmation or affidavit of a physician is generally necessary

to establish acceptable medical malpractice. Mosberg v. Elahi, 80 N.Y.2d 941 (1992).

35. Further, a physician is not a guarantor of a good result, and the mere

happening of an injury is not proof of a departure from accepted medical practice. See Nabozny v.

Cappelletti, 267 A.D.2d 623 (3d Dep't 1999); Saliaris v. D'Emilia, 143 A.D.2d 996 (2d Dep't

1988); Henry v. Bronx Lebanon Med. Center, 53 A.D.2d 476 (1st Dep't 1976). It is well settled

that "a doctor is not liable in negligence merely because a treatment, which the doctor as a matter

of professional judgment elected to pursue, provesineffective."

Nestorowich v Ricotta, 97 N.Y.2d



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393, 398 (2002). Liability is imposed "only if the doctor's treatment decisions do not reflect his or

her own best judgment, or fall short of the generally accepted standard ofcare."

Id. at 399.

ARGUMENT

36. It is difficult, if not impossible, to determine from the plaintiff's Bills of

Particulars and the defendant depositions the specific claims of medical malpractice that the

plaintiff is asserting and to which of the defendants those claims apply. Ms. Kaneysky was

admitted to CIH on June 9, 2014, but defendant medicine resident Dr. Bergman first treated her

on June 14, 2014, did not author the discharge note, and did not clear her for discharge. Similarly,

defendant medicine attending Dr. Vaynshteyn's first evaluation of Ms. Kaneysky was on June 16,

2014, was not involved in Ms. Kaneysky's admission to CIH, or her transfer to a medicine floor.

Also, no witnesses other than the named defendants were deposed by the plaintiff. Despite the

obvious differences in the care and treatment provided by the defendants and the plaintiff's failure

to identify hospital witnesses, the plaintiff's claims against all of the defendants are identical.

37. Nonetheless, generally, it appears that the plaintiff is claiming that during

Ms. Kanvesky's 11 day CIH admission the defendants failed to diagnose and treat various

conditions, which were found during the autopsy. However, such claims are inconsistent with the

medical chart and the treatment prescribed by the defendants. Based on Dr. Stanley Schneller's

expert affirmation, thedefendants'

treatment of Ms. Kaneysky, "at Coney Island Hospital from

June 9 to 20, 2014, conformed in all respects to good and accepted medical practice and that the

departures alleged by the plaintiff were not a proximate cause of Ms. Kaneysky's alleged injuries

and/ordeath."

Exhibit 2 at $4. As such, the defendants are entitled to summary judgment and

dismissal of the complaint with prejudice.

38. It is uncontroverted that on June 9, 2014, Ms. Kaneysky "presented

critically ill with an extremely high mortalityrate."rate. Id. at $30. It is further uncontroverted that prior

to arriving at CIH, she had been found at home by emergency medical services, unresponsive, with



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a fast and irregular heart rate and in severe hypoxia. She had suffered from multiple comorbidities

for many years, including dementia, congestive heart failure, COPD, and recent traumatic fractures

of her arm and leg. She was unable to care for herself and received near continuous home health

aide care. Id.

39. Despite Ms. Kaneysky severely compromised health, Dr. Schneller states

that the defendants treated her appropriately, even "admirably, saving [her]life."

Id. Dr. Schneller

continues, "[t]he defendants appropriately diagnosed Ms. Kaneysky with bilateral DVTs and

suspected pulmonary embolism, and started her on anticoagulation. She was timely diagnosed with

a UTI and properly treated withantibiotics."

Id. Dr. Schneller states that "[s]he was appropriately

worked up for possible acute myocardial infarction, which was properly ruled out. She was

appropriately diagnosed with congestive heart failure and properly treated with diuretics,

anticoagulants, and anti-hypertensives. Her aspiration pneumonia, acute hypoxic respiratory

failure, and underlying COPD were properly diagnosed and treated, initially with intubation,

diuretics, and serial chest x-rays, and later with continuous oxygen via nasalcannula."

Id.

40. Dr. Schneller continues, "[d]espite the appropriate advice that [Ms.

Kaneysky] remain in the hospital, upon Ms. Bekker's insistence and signed refusal of treatment,

the defendants appropriately discharged Ms. Kaneysky with home oxygen and anticoagulation,

which was in accordance with the standard ofcare."

Id. Further, it is Dr. Schneller's opinion to a

reasonable degree of medical certainty that "the defendants did not fail to diagnose cardiomegaly

with bi-ventricular dilatation, three vessel coronary artery disease, congestive heart failure, marked

swelling and pitting edema of her ankles, and pleural effusions and abdominal ascites. On the

contrary, all of these conditions were noted in the chart and treated appropriately and in accordance

with the standard ofcare."

Id.

41. In essence, Dr. Schneller states that the defendants properly diagnosed and

treated each of the findings in the autopsy report and in the plaintiff's Bills of Particulars. Id. As

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such, the evidence shows that the defendants were aware of Ms. Kaneysky's comorbidities and the

reasons for her compromised health and treated her in accordance with the standard of care. The

defendants have therefore established prima facie basis for judgment as a matter of law and

dismissal of the plaintiff's Complaint.

42. More specifically, the plaintiff alleges in the Bill of Particulars that the

defendants failed to provide proper cardiac care, although, again, there are no specifies as to the

cardiac condition or conditions that were mistreated or which of the defendants committed the

alleged malpractice. Nonetheless, Dr. Schneller states that "the cardiology care she received was .

. . appropriate and in accordance with the standard ofcare."

Id. at $33.

43. Further, Dr. Schneller states that Ms. Kaneysky "did not suffer an acute

myocardialinfarction"

before or during the admission to Coney Island at issue. Id. at $32. Dr.

Schneller explains that there were no invasive procedures available to treat Ms. Kaneysky's

cardiac issues due to her advanced age and comorbidities. Id. Further, all of the medical

interventions for an acute MI and/or congestive heart failure were already prescribed, such as,

"diuretics to decrease blood volume and lessen stress on the heart, anticoagulation to increase

blood flood and minimize the impact of narrowed and hardened vasculature, cardiac monitoring

for early detection of arrhythmia, and oxygen supplementation for maximumoxygenation."

Id. at

$34. As such, the plaintiff's claims of improper cardiac treatment are without merit.

44. Lastly, it is Dr. Schneller's expert opinion that Ms. Kaneysky's death was

due to natural and unpreventable causes, Id. at $38, and that the alleged injuries were not caused

in whole, or in part by thedefendants'

alleged negligence. Id. at ¶¶33-37.

45. Dr. Schneller posits three possible causes of death, (1) hypoxia, (2) sudden

aspiration, and/or (3) lethal arrhythmia. Id. Dr. Schneller states that the defendants diagnosed and

treated all of the underlying causes of these conditions, therefore, Ms. Kaneysky's death was a

natural consequence of "her numerous ailments, illnesses, comorbidities, and underlying chronic

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medicalconditions."

Id. at $38. Dr. Schneller continues, "[t]he defendants properly considered Ms.

Kaneysky's and her family's demands, discharging her despite reservations due to Ms. Kaneysky's

advanced age and precarious health, and put appropriate safeguards in place. Unfortunately, Ms.

Kaneysky suffered an acute and lethal event, which was the natural sequela of her illness and not

the result of any alleged malpractice on the part of thedefendants."

Id.

46. All of the conditions noted in Ms. Kaneysky's autopsy were diagnosed and

treated at CIH during her 11 day admission. The defendants have established that they acted in

accordance with good and accepted standards of care and that none of the allegations of

malpractice caused or contributed to Ms. Kaneysky's injuries and/or death. The defendants have

therefore established that they are entitled to judgment as a matter of law, that their motion for

summary judgment should be granted, and that this case should be dismissed with prejudice.

WHEREFORE, it is respectfully requested that this court issue an Order granting

the defendants summary judgment and dismissing the plaintiff's complaint, and for such other and

further relief as is just and proper.

Dated: New York, New York

March 27, 2018

JONATHAN M. WALDAUER, ESQ

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2018 02:55 pm

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