Tara Keating Brooks, et al., Appellants,v.Robert S. April, M.D., et al., Respondents.BriefN.Y.June 5, 2018 8874995v.1 COURT OF APPEALS OF THE STATE OF NEW YORK ------------------------------------------------------------- X Tara Keating Brooks and Christopher Brooks, Plaintiffs-Appellants, -against- Robert S. April, M.D. and Robert S. April, M.D., P.C., Defendants-Respondents. : : : : : : : : Index no.: 805144/13 Rule 500.1(f) Corporate Disclosure Statement ------------------------------------------------------------- X Judy C. Selmeci, an attorney duly admitted to practice law before the courts of the State of New York, affirms under penalty of perjury as follows: 1) I am a member of the firm of Wilson, Elser, Moskowitz, Edelman & Dicker, counsel for defendants-respondents Robert S. April and Robert S. April, P.C. 2) The within statements are submitted in response to this court’s Rule 500.1(f) requiring corporate disclosures from parties that are businesses. [continued on next page] 8874995v.1 3) Defendant-respondent Robert S. April, M.D., P.C. is not a publicly- held corporation. It has no subsidiaries or affiliates. Dated: New York, New York March 16, 2018 Respectfully submitted, Wilson, Elser, Moskowitz, Edelman & Dicker LLP By: Judy C. Selmeci Attorneys for defendants-respondents Robert S. April and Robert S. April, P.C. 150 East 42nd Street New York, New York 10017-5639 (212) 490-3000 File No.: 00703.26347 To: Kelner and Kelner Attn: Gerard K. Ryan, Jr. Attorneys for the plaintiff-appellant 140 Broadway, 37th floor New York, NY 10005 (212) 235-1027 March 16, 2018 Judy C. Selmeci 212.915.5159 (direct) Judy.Selmeci@wilsonelser.com 8875697v.1 By overnight delivery Court of Appeals of the State of New York 20 Eagle Street Albany, New York 12207 Attn: The Justices of the Court Re: Brooks v. April APL-2017-00234 To the Honorable Court: We represent defendants-respondents Robert S. April, M.D. and Robert S. April, M.D., P.C. In response to the plaintiffs-appellants’ letter brief we submit the within response. -- Preliminary Statement The plaintiffs’ theory of the case is that the patient’s AVM should have been diagnosed before it bled. What the plaintiffs continue to overlook is that the only way it would have been possible to make this diagnosis is with conventional angiography which (apart from being invasive and risky) was outright contraindicated prior to the bleed. There is no dispute between the experts about the indications for this test in that the plaintiff’s expert not once opined that it was indicated. ELSER WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 150 East 42nd Street • New York, NY 10017 • p 212.490.3000 • f 212.490.3038 Albany • Atlanta • Austin • Baltimore • Beaumont • Boston • Chicago • Dallas • Denver • Edwardsville • Garden City • Hartford • Houston • Indiana • Kentucky Las Vegas • London • Los Angeles • Miami • Michigan • Milwaukee • New Jersey • New Orleans • New York • Orlando • Philadelphia • Phoenix • San Diego San Francisco • Sarasota • Stamford • Virginia • Washington, DC • West Palm Beach • White Plains wilsonelser.com - 2 - 8875697v.1 There is no merit to the plaintiffs’ claim that the possibility of making the diagnosis based on an MRI is open to debate. It is not. The record demonstrates unequivocally that the patient’s AVM was micro-occult (which is to say, it could not be seen on non-invasive imaging due to its small size, a phenomenon also referred to as being “MRI-occult.”) No amount of verbal gymnastics on the plaintiffs’ part and certainly no selective reading of the record by their expert can overcome this fact. In the final analysis, since no question of fact was raised about the angiogram being indicated, all of the plaintiffs’ theories fall for lack of proximate cause. That is, without the ability to perform the test that would have diagnosed the patient’s condition, the discussion about other treatment issues (none of which are claimed to have caused any harm) are entirely irrelevant. -- Correction of the Facts We will not here recount all facts of the case but critical omissions in the plaintiffs’ letter brief must be addressed. The plaintiffs omit mention of the fact that the May 2011 consultation involved another round of imaging. The timing of the consultation is significant: it had been scheduled precisely to allow time for the prior bleed to resolve sufficiently so that the non-invasive radiological images would yield useful results. - 3 - 8875697v.1 This much is described in Dr. Maksim Shapiro’s1 May 20, 2011 consultation note. (R. 931, stating that “[the patient] is being appropriately followed to obtain delayed MRI/MRA to evaluate for [certain suspected conditions] following resolution of the hematoma.”) And so, on May 24, 2011, the patient underwent a combined MRI and MRA examination once again. (R. 933). The May 2011 MRI/MRA did not show the AVM. Of course, this MRI was six months after the bleed, which is to say it was well after the weeks-long window needed for the bleed to clear up sufficiently to allow the tissues to be evaluated on MRI. The omission of the May 2011 studies from the recitation of the facts renders the plaintiffs’ presentation misleading. This is particularly true in view of the fact that the plaintiffs’ theory on this appeal has evolved to an attempt to deny the evident truth that MRIs could not show this AVM. To make room for this theory, the plaintiffs argue now that the MRIs performed within weeks of the bleed are not proof of the micro-occult nature of the AVM because during this time the unresolved bleed was still obscuring the it. But this argument holds absolutely no water in view of the radiology studies done many months later, when the bleed had 1 Dr. Shapiro, of NYU, is one of the physicians who treated the patient after Dr. April and whose care the patient has not challenged in this action. - 4 - 8875697v.1 resolved. The fact that the May 2011 MRI also did not show the AVM absolutely proves that the AVM was micro-occult. It is only through the omission of these facts that the plaintiffs can even attempt to mount a challenge to the micro-occult nature of the AVM. In this regard, the plaintiffs also omit mention of the fact that during the May 2011 consultation, once the new MRI/MRA results were obtained, Dr. Shapiro described at length his concern that in view of the many unremarkable MRI studies by this date, the patient may have an “MRI-occult vascular malformation.” (R. 932). It must be observed in connection with this consultation that neither the radiologist who interpreted the May 2001 MRI/MRA, nor Dr. Shapiro himself indicated that there continued to be obstruction from the bleed impeding evaluation of the vasculature. (R. 932, 933). Instead, knowing now that something had bled within the patient’s brain and realizing that whatever it is, it is too small to be seen on an MRI, Dr. Shapiro recommended that an angiogram be performed. (R. 932). It warrants a reminder here that the patient’s history by this time included the bleed, thus the index of suspicion for a malformation as well as the risk-benefit analysis of an angiogram had shifted significantly since Dr. April’s treatment. (R. 935, containing the notations regarding the informed consent conversation with the patient relating to the angiogram which included discussion of risks such as - 5 - 8875697v.1 “stroke, intracranial hemorrhage, vascular injury to the cervical or femoral vessels and groin hematoma,” see also R. 1047). The plaintiffs are now attempting to distance themselves from their expert’s concession with regard to the adequacy of the later imaging studies. The plaintiffs think it a misrepresentation to state that their expert accepted that after a few weeks the bleeding would have cleared up enough to allow for meaningful non-invasive images to be taken. But this is precisely what the expert said! (R. 1007, stating that “[the patient] was advised to undergo further studies over several weeks allowing time for the resolution of the hemorrhage.”) The plaintiffs attempt to spin this statement now, saying that these words were merely lifted by the expert from the records of the subsequently treating physicians and are not the expert’s own. The problem with this argument is that there is a way to indicate when another’s words are being repeated and the plaintiffs’ expert is fully familiar with it: it’s called quotation marks and the plaintiffs’ expert uses them in the very same paragraph where the expert concedes that the bleed would clear up in weeks, allowing for imaging. Following this very concession, the expert quotes the findings of the angiogram. (R. 1008). The language of the angiogram report that he lifts is within quotes and is undoubtedly not the expert’s – but the words outside the quote, absent qualifications, quotation marks, attribution or any notes calling into question their accuracy are not ones with which the expert has taken issue. - 6 - 8875697v.1 (R. 1007). Even if the idea was not the expert’s to start, the expert certainly has taken ownership of it. The plaintiffs cannot now deny they were part of the opinion which the expert affirmed under the penalties of perjury. The plaintiffs’ characterization of their own expert’s submission bears further supplementation. The plaintiffs insist that their expert made the case for the AVM having been symptomatic even prior to the bleed on November 30. But what the plaintiffs omit is that not once does their expert say that the AVM was diagnosable with non-invasive imaging (such as MRIs, MRAs and CTs) during that time (or, for that matter, ever). Undoubtedly, the plaintiffs will balk at this statement, but it is true. We invite the Court to view the plaintiffs’ expert’s statements line-by-line to confirm it. (R. 1002-1021). The closest the plaintiffs’ expert comes to making a statement about the possibility of detecting the AVM with non-invasive testing is this: “had an MRI/MRA or CTA or conventional angiogram been performed” the micro AVM would have been diagnosed. (R. 1019, emphasis added). It is undisputed that an angiogram would have shown the AVM prior to the bleed. (The issue lies in whether the angiogram was indicated). It is the first three tests, all stated in the alternative that create the problem with the expert’s opinion. There is conclusive proof in the record that neither a CT, nor an MRI, nor an MRA would ever have shown the AVM because it was micro-occult. (R. 932-933). Thus, while the whole - 7 - 8875697v.1 of the plaintiffs’ expert statement to the effect of “either non-invasive or invasive testing would have identified the AVM” is true, this is so only because the second half of the disjunctive is true. The first is demonstrably false, especially in view of the May 2011 MRI/MRA results. (R. 933). Incidentally, the plaintiffs object to the Appellate Division’s literal interpretation of their own experts’ words, complaining that the court resolved the meaning of their affidavit by… well, reading it. (Pl. let. br. at 14, stating that “[t]he court below erred in resolving this matter in favor of the defendants relying on a rule of grammar to do so.”) The thing is that it is not so much the rule of grammar that compels the conclusion as to the expert affidavit’s meaning. Rather, the plaintiffs’ expert made it quite clear that he was talking about invasive and non- invasive tests in the alternative by repeatedly using the word “or.” Of course, if a court were to decide a case based on a rule of grammar, that would not be out of the ordinary either. O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017) (holding that for lack of an Oxford comma, truck drivers’ entitlement to $5 million was lost). In any event, the conclusion is unavoidable that if it was not possible to diagnose the AVM with non-invasive imaging then any failure to order non- invasive imagining, even if established, was not the proximate cause of the alleged failure to diagnose the AVM. - 8 - 8875697v.1 This takes us to issue of whether invasive imaging (that is, the angiogram) should have been ordered prior to the bleed. On this issue too, the plaintiffs’ recitation of the expert’s submissions contains significant omissions. The plaintiffs’ expert opined repeatedly and specifically about the types of testing which he believed were indicated and why. With near universality, the plaintiffs’ expert claimed that there were indications for performing MRIs and a CT (that is, noninvasive testing). (R. 1012, 1014, 1015, 1016, 1017, 1018). There is but one exception to this pattern and it comes at page 1011 of the record where the expert claimed that “[Dr. April] deviated from the accepted standard of medical care in not ordering indicated tests which would have been dictated by proper performance of differential diagnosis, specifically including cerebral MRI and MRA or CTA or conventional cerebral angiography.” (R. 1011). According to the plain wording of the plaintiffs’ expert’s opinion, performing any of these tests would have satisfied the standard of care. (And Dr. April did, of course, order a CT. [R. 782, 783]). With respect to the plaintiffs’ expert submission, one final omission must be observed. The plaintiffs remind the Court that it is their (and their expert’s) view that Dr. April failed to identify sufficient differential diagnoses. The plaintiffs’ expert in this regard offered a long list of conditions which, according to the expert, could have been part of a differential diagnoses. (R. 1009-1011). Except not; immediately after offering the list, the plaintiffs’ expert went on to add that in - 9 - 8875697v.1 reality not all of the items would properly have qualified as differentials because “much of [the list] can be eliminated or rendered medically unlikely by basic history, physical and neurologic examination, indicated work up and appropriate clinical focus.” (R.1011). The plaintiffs’ expert never once specified which among the potential differentials would have survived the elimination through these methods. So, while an AVM is on the plaintiffs’ expert’s list of things that may or may not have been proper differentials, ultimately, the expert failed to opine that an AVM should actually have been suspected prior to the bleed. (R. 1011). -- There are no Questions of Fact In making their prima facie showing, the defendants offered their expert’s observation that no MRI could “see” the AVM which is to say that the AVM was micro-occult. (R. 56). The plaintiffs’ case now comes down to the accuracy of this claim. Contrary to the plaintiffs’ assertion, the Appellate Division did not decide questions of fact in the defendants’ favor on the micro-occult nature of the AVM. Instead, there are no contested facts in this regard. The fact that the AVM could not be seen on MRI or MRA is uncontestable fact, the plaintiffs’ protestation to the contrary notwithstanding. This is so because the record conclusively establishes it. That the AVM was micro-occult is not a matter of expert opinion, subject to a credibility determination by a jury. Instead, it is medical fact. As the circumstances - 10 - 8875697v.1 and medical reports concerning the May 2011 MRI/MRA show, the bleed which occurred 6 months prior no longer obscured MRI images. Yet, the AVM still could not be seen. It was during this time that the micro-occult nature of the patient’s abnormality came to be recognized by the then-treating physician and it was then that the recommendation for an invasive angiogram was made. (R. 932-933). Where the record speaks clearly on an issue of fact, courts must reject an expert opinion to the contrary. McCarthy v. St. Joseph’s Med. Ctr., 16 A.D.3d 243, 244 (1st Dep’t 2005) (holding that where “[the] [p]laintiff’s expert’s opinion … is not supported ‘with scientific data or other medical facts’” it is insufficient to raise a question of fact in opposition to a motion for summary judgment), quoting Carrera v. Mount Sinai Hosp., 294 A.D.2d 154 (1st Dep’t 2002). Once it is accepted, as it must be, that the AVM could not be seen on non- invasive imaging, it is impossible to escape the conclusion that any departures concerning an alleged failure to order such tests must be resolved in the defendants’ favor on summary judgment. This is so even if there are contested issues of fact with respect to whether an MRI or MRA or CT or CTA should have been ordered prior to the patient’s bleed on November 30. The reason that the defendants are entitled to this relief, even despite questions concerning a departure, is because the micro-occult nature of the AVM means there is no proximate causation. That is, whether Dr. April ordered an MRI (or MRA, CT or CTA) or - 11 - 8875697v.1 not, the AVM was not going to be seen. The alleged failure to order these tests thus being inconsequential, proximate causation is lacking. Here we observe that while the plaintiffs’ expert opined that the standard of care required that an MRI be ordered given the patient’s presentation prior to November 30, the plaintiffs’ expert did not once opine that if that MRI had come back normal then an angiogram would have become indicated. In fact, the plaintiffs’ expert did not once opine that specifically an angiogram (rather than one of a collection of tests) would have been indicated under any circumstances, prior to November 30. Because the plaintiffs’ expert has not stated that the standard of care would have required an angiogram, the plaintiffs have quite evidently failed to overcome the defendants’ expert’s opinion which states plainly that not only was an angiogram not indicated but that it was outright contraindicated given the patient’s presentation. (R. 56). Of course, the plaintiffs’ failure to counter the defendants’ prima facie showing in this regard entitles the defendants to summary judgment. David v. Hutchinson, 114 A.D.3d 412 (1st Dep’t 2014) (holding that summary judgment was warranted where the plaintiff’s expert failed to refute the defendants’ point that the testing that would have revealed the plaintiff’s condition was not indicated). The plaintiffs’ expert unquestionably opined that other departures occurred, but these become irrelevant in the final analysis as there is a complete absence of - 12 - 8875697v.1 proximate causation in connection with them. Specifically, the plaintiffs think that the “head shaking” test should not have been done, that the medications given were contraindicated and that the history Dr. April took was not adequate. (R. 1009- 1012). But the plaintiffs do not (and never have) argued that any damages flowed from these alleged departures. Certainly, they had nothing to do with whether the AVM could be diagnosed prior to the bleed. Thus, once again, regardless of whether a question of fact exists for these claimed departures, the defendants are entitled to summary judgment for lack of proximate cause. Koeppel v. Park, 228 A.D.2d 288, 290 (1st Dep’t 1996) (holding that “a plaintiff must show not only that the doctor deviated from accepted medical practice but also that the alleged deviation proximately caused the patient’s injury”) (citations omitted). As to the plaintiffs’ claim that Dr. April deviated from the standard of care with respect to a failure to arrive at a differential diagnosis, two observations must be made. First, the plaintiffs’ expert failed to state that the differential diagnosis should have been the AVM (in that the expert listed this possibility but then hastily added that it may or may not have been subject to exclusion also). (R. 1101). Second, it must be noted that proximate causation is absent as to this allegation as well. This is because the defendants established (and the plaintiffs failed to refute) that the AVM could not be diagnosed prior to the bleed during Dr. April’s treatment. (This is so, of course, because non-invasive testing would not have - 13 - 8875697v.1 revealed it and invasive testing was not indicated). Since a differential diagnosis of an AVM could thus never have been confirmed by Dr. April, the failure to consider this tentative, alternative diagnosis is in no way the cause of the patient’s ultimate course. On the plaintiffs’ claim that a neurosurgical consultation should have been obtained, it must be observed that the plaintiffs’ expert opined only that this consultation should have followed diagnosis of the AVM. (R. 1012, claiming that Dr. April “not making a precise diagnosis [of] clinical manifestation of a cerebral AVM … led to a further deviation [in] the failure to obtain indicated consultation (neurosurgical).”) Since the diagnosis could not have been made during Dr. April’s treatment, however, the referral would never have become due. Lastly on the issue of departures, we note that it is undisputed that the patient’s bleed occurred on November 30 when she experienced the sudden onset of an intense headache and other severe symptoms. (R. 1019, where the plaintiffs’ expert states that, in his opinion, a “timely diagnosis and treatment” that would have avoided the bleed could have been achieved up to November 30). As it is the plaintiffs’ claim that the defendants’ departure consists of the failure to achieve early detection of the AVM such that interventions could have prevented the bleed, any claims of alleged departures on November 30 and beyond lack proximate cause. - 14 - 8875697v.1 -- The Appellate Division Majority Got it Right In addition to finding that the plaintiffs failed to raise a question of fact for all of the reasons already stated, the majority relied on Montilla v. St. Luke’s- Roosevelt Hosp., 147 A.D.3d 404, 407 (1st Dep’t 2017). In Montilla the plaintiff’s expert formulated his opinion without taking into account critical data in the medical record. In Montilla that data was a blood pressure reading taken just before the plaintiff’s injury. The reading was high and it undermined the plaintiff’s expert’s narrative that the patient’s blood pressure had been stable prior to the relevant events. Although the dissent here resisted the applicability of the Montilla case, the reality is that it is very much on point. The plaintiffs’ expert here ignored not a blood pressure reading but an equally unequivocally documented medial fact: the patient’s AVM was micro-occult. The patient’s then-treating neurologist so concluded (R. 932) based on the MRI readings taken when the prior bleed was no longer obstructing the images. (R. 933). The plaintiffs’ failure to reckon with this fact puts this case squarely on point with Montilla. And like the plaintiff in Montilla, these plaintiffs too have failed to raise a question of fact. - 15 - 8875697v.1 -- Conclusion Given that the plaintiffs’ expert’s contradicts the medical record (on the micro-occult nature of the MRI), fails to address and counter the defendants’ prima facie showing (on the fact that an angiogram was contraindicated prior to the bleed) and otherwise offers opinions that are insufficient to raise a question of fact (in that there is no proximate clause flowing from the alleged remaining departures) and in view of the defendants’ prima facie showing of their entitlement to summary judgment, the defendants’ motion must be granted. * * * For these reasons it is respectfully requested that this court affirm the Appellate Division’s order on appeal. Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Judy C. Selmeci cc: Kelner and Kelner Attn: Gerard K. Ryan, Jr. Attorneys for the plaintiffs-appellants 140 Broadway, 37th floor New York, NY 10005 (212) 235-1027 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 500.11(m) that the foregoing letter was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the letter, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by § 500.1(h) is 3,426. Dated: March 16, 2018 Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Judy C. Selmeci
