Roth v VelasquezRoth v Velasquez
Defendants appeal from an order of the Supreme Court, New York County (Kathy J. King, J.), entered April 1, 2025, which denied defendants’ motion for summary judgment dismissing the complaint.
Mendez, J.
Plaintiff commenced this medical malpractice action alleging that on November 10, 2015, defendants New York Presbyterian/Columbia University Medical Center (the hospital) and Dr. Anthony Velasquez, M.D., negligently treated him when they failed to perform a CT pulmonary angiogram (CTPA) to diagnose and treat a pulmonary embolism (PE) when he presented to the emergency department with complaints of chest pain and shortness of breath.
Defendants moved for summary judgment, arguing that they were not negligent and that they did not deviate from the standard of care on November 10, 2015 or proximately cause plaintiff‘s injury. In opposition, plaintiff submitted the expert affirmation of Dr. David A. Mayer, M.D., who opined that defendants departed from the standard of care by failing to properly evaluate and diagnose plaintiff‘s PE during the November 10, 2015 visit. He opined that plaintiff‘s risk of PE, together with the onset of pleuritic chest pain, the EKG findings, and the CT scan findings should have aroused the suspicion of PE and required defendants to perform a CTPA, the gold standard of PE testing. Supreme Court denied defendants’ motions, finding Dr. Mayer‘s affirmation was sufficient to raise issues of fact.
Although the hospital established prima facie entitlement to summary judgment, plaintiff‘s submissions in opposition were sufficient to raise a triable issue of fact, thus requiring denial of the hospital‘s motion (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Initially, plaintiff‘s expert, Dr. Mayer, a general surgeon, possessed the necessary expertise to opine on the applicable standard of care, as he averred that he had diagnosed “thousands of patients with Pulmonary Embolism” during his 40-year career, taught medical students and surgical residents how to diagnose and treat PE, and had extensive experience evaluating and managing patients presenting PE symptoms in an emergency department (see Maikish v Good Samaritan Hospital Med. Ctr., 228 AD3d 513, 513-514 [1st Dept 2024]).
The hospital‘s radiology expert, Dr. Stephen Machnicki, M.D., asserted that no PE was detected based on the radiographic imaging performed on November 10, 2015 and Dr. Mayer did not dispute this assertion. However, notably, the Dr. Machnicki did not further opine that plaintiff‘s PE, even if acute when diagnosed after he returned to the hospital on December 22, 2015, would not have been diagnosed upon the performance of a CTPA on November 10, 2015.
However, Supreme Court should have granted summary judgment dismissing the complaint as against defendant Dr. Anthony Velasquez. The affirmations of Dr. Velasquez‘s experts, the EMS report, the emergency department records, and plaintiff‘s deposition testimony establish Dr. Velasquez‘s entitlement to judgment as a matter of law.
Dr. Velasquez‘s expert, Andrew Wollowitz, M.D., an emergency medicine specialist, noted that plaintiff never complained of chest pain. Dr. Wollowitz opined that Dr. Velasquez did not deviate from the standard of care because he included the possibility of PE and Acute Coronary Syndrome (ACS) in his differential analysis of plaintiff‘s condition and properly determined that given plaintiff‘s lack of complaint of chest pain to the EMS and at the emergency department, neither condition was likely. Moreover, Dr. Wollowitz stated that CPTA, which is not a benign test, subjects patients to additional risks, including renal failure, due to the usage of iodine contrast, and should be used only where necessary.
The examination, by emergency medicine resident Dr. Mark Suguitan, as documented in his notes, revealed that plaintiff had no cough or shortness of breath, and that his cardiovascular and respiratory examinations were normal. Dr. Suguitan‘s notes further documented that plaintiff was experiencing sharp lower right rib/right flank pain that became constant by the time he was admitted to the emergency department. Dr. Suguitan‘s examination and plaintiff‘s symptomology led him to assess plaintiff as potentially having kidney stones.
Dr. Velasquez‘s progress notes state that plaintiff had several days of “intermittent, severe right flank pain.” Upon examination, plaintiff‘s lungs were clear, and cardiovascular testing was within normal limits. Dr. Velasquez‘s examination did not find that plaintiff’ breathing and movement were limited by pain. Based on a review of the records and his examination of plaintiff, he concluded that there was “No chest pain or shortness of breath to suggest PE or ACS.” Although Dr. Velasquez did not fully adopt Dr. Suguitan‘s assessment of kidney stones, he determined that tests were necessary to check for Pyelo, a bacterial infection causing kidney inflammation, and kidney stones, to be followed by a reassessment after the test results.
Dr. Mayer states that plaintiff had no prior history of renal issues or problems with dye tolerance, but he does not address whether a potential kidney infection or kidney stones would be aggravated by the dye used in a CTPA, nor does he address Dr. Wollowitz‘s opinion, which was corroborated by defendant‘s pulmonologist, Amit Uppal, M.D., that the contrast dye in the CTPA could have exposed plaintiff to risk and potentially resulted in renal failure.
Additionally, plaintiff is unable to raise any issues of fact as to whether Dr. Velasquez‘s actions were the proximate cause of his alleged injuries. The CT results were received and reviewed, and the emergency department workup was completed, by the day shift attending physician, Dr. Frank Lovaglio, and the fellow, Dr. Lynn Jiang, after Dr. Velasquez‘s shift had ended. Based on the CT results, a reassessment for PE was made by Dr. Jiang, who made the determination to forgo ordering a CTPA and instead ordered an EKG and D-dimer tests. As a result, plaintiff did not raise an issue of fact as to whether it was probable that Dr. Velasquez‘s conduct diminished plaintiff‘s chance of a better outcome, as the CT results were received, and the final assessments of plaintiff‘s condition were made, by the day shift after Dr. Velasquez‘s shift had ended and prior to plaintiff‘s discharge. Dr. Velasquez saw plaintiff in the emergency department for a limited period between 6:20 a.m. and 8:00 a.m. After signing plaintiff over to the day shift, Dr. Velasquez was not required to wait until plaintiff‘s emergency department workup was completed (see Bello, 233 AD3d at 467-468).
Accordingly, the order of the Supreme Court, New York County (Kathy J. King, J.), entered April 1, 2025, which denied defendants’ motion for summary judgment dismissing the complaint, should be modified, on the law, to dismiss plaintiff‘s complaint as against defendant Anthony Velasquez, M.D., and otherwise affirmed, without costs.
Opinion by Mendez, J. All concur.
Manzanet-Daniels, J.P., Mendez, Pitt-Burke, Higgitt, Hagler, JJ.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: August 6, 2026