1.         I am a physician licensed to practice medicine in the states of New York and New Jersey, and I am board-certified and re-certified in anesthesiology. I graduated from [medical school] in 1981 with an M.D. degree and completed my residency in anesthesiology at the [anesthesia residency program] in New York City. Presently, I am a Clinical Assistant Professor of Anesthesiology at [medical school], and I practice as an attending physician at [Hospital] and [Hospital]. I am also an anesthesiology consultant for the Office of the Chief Medical Examiner of [City]. I have over 30 years of experience practicing, as well as instructing medical students, residents, and fellows in the field of anesthesiology. I am, therefore, fully familiar with the anesthesiology standards of care as they related to the treatment at issue and the allegations concerning same.

2.         This expert affirmation is submitted in support of the instant motion for summary judgment by Dr. R. The bases for my opinions, all of which are made with a reasonable degree of medical certainty, are my professional knowledge and experience in the field of anesthesiology, as well as my review of the pleadings, the Verified Bills of Particulars, all Supplemental Verified Bills of Particulars, the deposition transcripts of the plaintiff, Dr. R, and Dr. K, all pertinent medical records, including the records of [Hospital], and all other documents exchanged in discovery not otherwise specifically enumerated above.

3.         This is an action sounding in medical malpractice wherein the patient alleges that during his February 4, 2013 admission to [Hospital] for a thyroidectomy for thyroid cancer, Dr. K and Dr. R failed to properly secure the patient's left lower extremity both preoperatively and intraoperatively. More particularly, the patient's material allegations are that Dr. K’s and Dr. R’s failure to properly secure his leg ultimately allowed it to hang off the surgical table. The patient alleges that his hanging leg went unnoticed and was not timely repositioned. The patient also alleges that Dr. R negligently failed to use muscle relaxants/paralytic agents during anesthesia in order to prevent him from shifting intraoperatively. The patient further alleges that as a result of said mal-positioning, he suffered neurological damage which manifested as, inter alia, paresis of his left lower extremity, paresthesia/hypesthesia/hyperthesia of his left lower extremity, sciatic nerve injury, the need for six (6) months of physical therapy, pain in his left lower extremity, and other associated foot/leg injuries causing difficulty with ambulation.

4.         It is my opinion, to a reasonable degree of medical certainty, that Dr. R did not depart from good and accepted practice in any respect in the treatment he rendered to the patient. Initially, it is my opinion that Dr. R did not depart from the standard of care with regard to positioning the patient, protecting the patient from pressure related complications, and securing the patient in order to maintain proper positioning and protection.

5.        Dr. R’s anesthesia record notes that general anesthesia, intravenously induced through the patient's left forearm, began at 0845 and ended at 1700 – a duration of approximately nine (9) hours. Significantly, the notes indicate that foam pillows for the patient's arms, and foam tubes for padding, were used and confirmed with the surgeon, Dr. K. The anesthesia record also indicates that a nerve integrity monitoring endotracheal tube was placed by Dr. R and that the patient was positioned with a thyroidectomy inflatable cushion under his back shoulder blades, as per the surgeon's requirements. The patient's arms were subsequently padded and tucked at his sides with sled-type supports which connect to the operating room table. In addition, the patient's lower extremities were also extensively padded. Specifically, the patient's heels were also individually padded out of an abundance of caution, due to the extreme weight of the patient's legs, which was a direct consequence of his severe lower body elephantiasis and bilateral lower extremity lymphedema. Additionally, two (2) "safety belt" style body straps were utilized to maintain the padded position into which the patient was placed. Typically, only one (1) such strap is used. This was done out of an abundance of caution and in excess of requirements under the prevailing standard of care. Once the patient was adequately positioned, the operating room table was placed into a "beach chair" configuration in order to elevate the patient's lower extremities and minimize any possible increased venous stasis and venous congestion which would be expected to unavoidably occur as a direct result of the patient having to remain in this position on the operating room table for nine (9) hours, which was the duration of the thyroid cancer surgery the patient underwent on that day.

The patient was then draped in the usual sterile fashion; antibiotics and steroids were administered, and Dr. K proceeded with the surgery. The operative report documents that during the procedure, the patient's left lower extremity had to be repositioned when the circulating nurse observed that it was "wearing off the table" (according to Dr. K’s deposition testimony, "wearing" was an erroneous transcription by his dictation service of the word "leaning" or "veering"; see Exhibit J, 55:23-56:11). The surgery was briefly interrupted and the patient's leg was repositioned. In addition, a third body strap was placed circumferentially over the distal segment of the patient's lower extremities before further proceeding with surgery, out of an abundance of caution.

7.         It is also important and necessary to consider the patient's body habitus at the time he presented for surgery, as it relates to the patient's claims herein. Not only was he morbidly obese, with a BMI of 56 (a BMI of 40 or greater is considered morbidly obese), but he also suffered from lower extremity elephantiasis and very severe bilateral lower extremity lymphedema (swelling) of his legs, which is plainly apparent from the photographs taken by Dr. K after the patient was positioned on the operating table, and is clearly documented in the patient's preoperative medical records, as well. Although the patient's morbid obesity and the massive pre-existing swelling of both of his legs complicated the pre-operative preparation of the patient for surgery and made the positioning more difficult, it is my opinion, to a reasonable degree of medical certainty, that Dr. R and the other members of the surgical team prospectively took all reasonable and appropriate measures to position, pad and secure the patient preoperatively and intraoperatively. A review of the [Hospital] records, as well as the photographs taken by Dr. K after the patient was positioned, padded, and secured, supports this determination and conclusion. Based on documentation within the medical records, and as shown in the photographs, the patient's legs were amply padded in an attempt to prevent pressure related complications. Moreover, the patient's trunk and legs were circumferentially strapped with padded "safety belt" style straps in order to secure the patient, and maintain appropriate positioning on the operative table for surgery by Dr. K for the duration of the nine (9) hour procedure. It was appropriate and exemplary for the surgical team to place two straps to secure the trunk and the legs. Based on the photographs, both straps were properly placed to maximize patient protection and maintain appropriate positioning to the extent possible. Based upon the photos, the straps were applied with appropriate padding and tension, again to maintain positioning to the extent possible. Based upon the photos, it appears that the patient's legs were properly padded, positioned and strapped and that there were no additional measures which reasonably could have been taken pre-operatively to prevent his legs from migrating during surgery. As mentioned above, a third strap was also placed circumferentially over the patient's distal lower extremities intraoperatively out of an abundance of caution. It is therefore my opinion that Dr. R and the surgical team prospectively exercised appropriate and sound medical judgment in compliance with the standard of and did not depart from any accepted practices in the pre-operative positioning, padding, and securing of the patient.

8.         It is further my opinion that the patient was properly monitored intraoperatively and that the movement of his left leg was promptly appreciated and that the leg was promptly repositioned in accordance with the standard of care. It should be initially noted that once the patient was positioned and sterile drapes applied for surgery, the drapes could not be removed in order for anyone in the operating room to directly visually monitor the positioning of the patient's legs. Moreover, both Dr. R and RN Ms. B independently testified during their examinations before trial that the patient's positioning was re-checked intraoperatively every 15 minutes. Not only does this frequency of observation supersede the standard of care, but it also served to ensure that the patient's leg could never have been out of proper position for a period of time exceeding fifteen (15) minutes. This is an insufficient time course for any peripheral nerve injury – whether by compression or stretch – to have possibly occurred. It is further my opinion that the standard of care absolutely does not require the anesthesiologist or operating room team to document the intraoperative ongoing checking of the positioning of the patient's lower extremities. More importantly, the absence of such documentation in the hospital record cannot be used to demonstrate, deduce, or prove that the timely checking of positioning by the surgical team did not transpire. Once the patient's lower leg was found to be out of alignment, it was immediately and promptly re-positioned in accordance with the standard of care.

9.         The patient's claim that Dr. R departed from accepted medical practice in not administering a muscle relaxant or paralytic agent during the subject surgery is similarly erroneous. When a patient undergoes thyroid surgery, the surgeon needs to be able to monitor and identify the recurrent laryngeal nerves to his satisfaction in order to protect them from an injury which would, in turn, paralyze the patient's vocal cords and directly affect his ability to properly phonate and safely swallow liquids and foods. Intraoperative palpation by the surgeon of a recurrent laryngeal nerve with a surgical electrode causes the muscles of the vocal cords to react, thereby informing the surgeon in a feedback loop of the identities of the anatomic structures he is observing in the operative field. The use of a muscle relaxant or paralytic agent would prevent the vocal cords from responding normally when a recurrent laryngeal nerve is stimulated by the surgeon. Therefore, muscle relaxants or paralytics are contraindicated in thyroid surgery when a nerve integrity endotracheal tube is used, as was the case here. Therefore, the decision not to administer these medications was a surgical requirement and not a departure from accepted practice. Additionally, the absence of muscle relaxants/paralytic agents as a component of the pharmacologic regimen does not in any manner increase the risk to the patient of experiencing nerve injury, as general anesthesia can be safely and effectively maintained without the utilization of muscle relaxants/paralytic agents.

10.       The anesthesia care rendered by Dr. R and the rest of the surgical team was exemplary. They clearly took the patient's unique and clinically challenging body habitus into specific consideration in padding, securing, and monitoring the patient, and took all reasonable steps to ensure that the patient did not sustain injury intraoperatively. Therefore, it is my opinion, to a reasonable degree of medical certainty, that Dr. R did not depart from the standard of care with regard to the positioning, padding, securing, or monitoring of the patient. Moreover, in the absence of any departure on his behalf, the care rendered by Dr. R was not a cause of neurological injuries alleged by the patient. Although the patient alleges that he sustained injury as a result of prolonged mal-positioning of his leg, it is my opinion, to a reasonable degree of medical certainty, that the type of injury alleged by the patient was the unavoidable result of his morbid obesity and massive lymphedema in the absence of any departures from accepted practice in positioning, padding, securing or monitoring him before and during the surgery at issue.

For all of the reasons stated above to a reasonable degree of medical and surgical certainty, I respectfully submit that Dr. R’s instant application should be granted in its entirety and the case against him should be dismissed.