        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

343
CA 11-02073
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


BONNIE MORTILLARO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROCHESTER GENERAL HOSPITAL, DEFENDANT,
ILYA ZHAVORONKOV AND DOMINIC CORTESE, DOING
BUSINESS AS ANESTHESIOLOGIST ASSOCIATES OF
ROCHESTER, DEFENDANTS-APPELLANTS.


HIRSCH & TUBIOLO, P.C., ROCHESTER (CHRISTOPHER S. NOONE OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

THE LADUCA LAW FIRM, ROCHESTER (DAVID C. PILATO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered January 7, 2011 in a medical malpractice
action. The order denied the motion of defendants Ilya Zhavoronkov
and Dominic Cortese, doing business as Anesthesiologist Associates of
Rochester, for summary judgment dismissing the amended complaint
against them.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion of defendants
Ilya Zhavoronkov and Dominic Cortese, doing business as
Anesthesiologist Associates of Rochester, in part and dismissing the
amended complaint against them except insofar as it alleges that Dr.
Zhavoronkov failed to conduct a postoperative interview to assess
plaintiff’s anesthesia experience and failed to document the findings
of that interview, and as modified the order is affirmed without
costs.

     Memorandum: Plaintiff commenced this medical malpractice action
seeking damages for injuries she allegedly sustained following a
surgery during which she alleged to have experienced intraoperative
awareness, i.e., waking up from anesthesia during surgery. Defendant
Ilya Zhavoronkov administered the anesthesia for plaintiff’s surgery.
Defendant Dominic Cortese, chief of anesthesiology at defendant
Rochester General Hospital, met with plaintiff approximately four
months after her surgery to discuss her alleged intraoperative
awareness, but he concluded that the memories plaintiff recounted at
that time were consistent only with postoperative events. As a result
of the stress and anxiety allegedly caused by her intraoperative
memories, plaintiff admitted herself for inpatient psychiatric
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                                                         CA 11-02073

treatment that included electroconvulsive therapy (ECT). According to
plaintiff, Dr. Zhavoronkov was negligent in failing to administer
anesthesia properly; failing to monitor her anesthesia during surgery
and her recovery from the anesthesia after surgery; failing to conduct
a postoperative interview to assess her anesthesia experience; and
failing to document the findings of that interview. Also according to
plaintiff, Dr. Cortese was negligent in failing to include Dr.
Zhavoronkov in his postoperative meeting with plaintiff; failing to
validate her claim of intraoperative awareness at that time; and
failing to prevent her psychiatrist from subjecting her to ECT.

     Dr. Zhavoronkov and Dr. Cortese, doing business as
Anesthesiologist Associates of Rochester (hereafter, defendants),
appeal from an order denying their motion for summary judgment
dismissing the amended complaint against them. We conclude that
Supreme Court erred in denying that part of the motion with respect to
Dr. Cortese. We further conclude that the court erred in denying that
part of the motion with respect to Dr. Zhavoronkov, except insofar as
plaintiff alleges that he failed to conduct a postoperative interview
to assess plaintiff’s anesthesia experience and failed to document the
findings of that interview. We therefore modify the order
accordingly.

     “The proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law, tendering
sufficient evidence to eliminate any material issues of fact from the
case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see
Zuckerman v City of New York, 49 NY2d 557, 562). “Once [that] showing
has been made . . ., the burden shifts to the party opposing the
motion for summary judgment to produce evidentiary proof in admissible
form sufficient to establish the existence of material issues of fact
which require a trial of the action” (Alvarez v Prospect Hosp., 68
NY2d 320, 324; see Zuckerman, 49 NY2d at 562). “In a medical
malpractice action, a plaintiff, in opposition to a defendant
physician’s summary judgment motion, must submit evidentiary facts or
materials to rebut the prima facie showing by the defendant physician
that he [or she] was not negligent in treating plaintiff so as to
demonstrate the existence of a triable issue of fact” (Alvarez, 68
NY2d at 324).

     With respect to Dr. Cortese, defendants met their initial burden
on the motion inasmuch as they submitted the deposition testimony of
Dr. Cortese in which he offered a reasonable explanation for not
including Dr. Zhavoronkov in his postoperative meeting with plaintiff,
i.e., that as an anesthesiologist, he was capable of assessing the
validity of a claim of intraoperative awareness. We therefore
conclude that Dr. Cortese’s failure to include Dr. Zhavoronkov in that
meeting does not constitute medical negligence. With respect to
plaintiff’s allegation that Dr. Cortese was negligent in failing to
validate her claim of intraoperative awareness at their postoperative
meeting, defendants’ expert opined in his affidavit that Dr. Cortese
had a valid basis for that determination, and plaintiff’s expert
failed to respond to that opinion. In addition, defendants submitted
the affidavit of plaintiff’s treating psychiatrist, who stated that
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                                                         CA 11-02073

she would have treated plaintiff with ECT regardless of whether Dr.
Cortese had concluded that plaintiff experienced intraoperative
awareness. Thus, defendants established that Dr. Cortese could not be
found liable for failing to prevent plaintiff from undergoing ECT, and
plaintiffs failed to raise a triable issue of fact in opposition (see
generally Zuckerman, 49 NY2d at 562).

     With respect to Dr. Zhavoronkov, we conclude that, through the
affidavit of their expert, defendants met their initial burden of
establishing that Dr. Zhavoronkov did not depart from the applicable
standard of care in either his administration of anesthesia to
plaintiff or his intraoperative and postoperative monitoring of
plaintiff’s reaction to anesthesia. Plaintiff failed to raise a
triable issue of fact in opposition inasmuch as her expert failed to
dispute those conclusions. Indeed, plaintiff’s expert conceded that
Dr. Zhavoronkov’s administration of anesthesia and conduct during
surgery satisfied the requisite standard of care.

     Even assuming, arguendo, that defendants met their initial burden
on that part of their motion concerning Dr. Zhavoronkov’s performance
of a postoperative interview of plaintiff to assess her anesthesia
related experience and his documentation of such an interview, we
conclude that plaintiff submitted sufficient evidence to raise a
triable issue of fact with respect thereto (see generally Zuckerman,
49 NY2d at 562). Although Dr. Zhavoronkov testified at his deposition
that he spoke to plaintiff after her surgery, that testimony was based
on surgical records noting that such an interview took place inasmuch
as he also testified that he had no specific recollection of
plaintiff’s surgery. We note that the portion of the surgical records
relevant to a postoperative interview included in the record is
illegible. In addition, plaintiff testified at her deposition that
she never spoke to Dr. Zhavoronkov after her surgery.




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
