Tara Keating Brooks, et al., Appellants,v.Robert S. April, M.D., et al., Respondents.BriefN.Y.June 5, 2018New York County Clerk’s Index No. 805144/13 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT TARA KEATING BROOKS and CHRISTOPER BROOKS, Plaintiffs-Respondents, against ROBERT S. APRIL, M.D. and ROBERT S. APRIL, M.D., P.C., Defendants-Appellants. >> >> To Be Argued By: Judy C. Selmeci BRIEF FOR DEFENDANTS-APPELLANTS WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Attorneys for Defendants-Appellants 150 East 42nd Street, 23rd Floor New York, New York 10017 212-490-3000 judy.selmeci@wilsonelser.com Of Counsel: Judy C. Selmeci Printed on Recycled Paper i TABLE OF CONTENTS Page Table of Authorities ................................................................................................. iii Preliminary Statement ................................................................................................ 1 Question Presented ..................................................................................................... 2 Statement of Facts ...................................................................................................... 2 --- Brooks’ Micro AVM ................................................................................. 2 --- Brooks’ Fall ............................................................................................... 4 --- Brooks’ Treatment with Dr. April ............................................................. 5 --- Brooks’ Subsequent Treatment ................................................................. 7 --- The Summary Judgment Motion ............................................................... 9 --- Brooks’ Opposition ................................................................................. 10 --- The Reply ................................................................................................ 15 --- The Order on Appeal ............................................................................... 15 Argument.................................................................................................................. 16 Point I Summary Judgment Must be Granted Because There is no Proximate Cause ......................................................................... 16 --- The AVM was MRI-Occult, Therefore the Alleged Failure to Order Non-Invasive Testing is not the Proximate Cause of it Going Undiagnosed .................................. 17 --- Proximate Causation is Lacking after the November 30 Bleed ........................................................................................ 21 ii Point II There is no Departure Vis-à-vis the Claim that an Angiogram would have Found the Micro AVM ............................. 22 Conclusion ............................................................................................................... 23 Printing specifications Statement ............................................................................. 24 iii TABLE OF AUTHORITIES Page(s) Cases Bacani v. Rosenberg, 74 A.D.3d 500 (1st Dep’t 2010) ......................................................................... 18 Calogerakos v. City of New York, 22 A.D.3d 407 (1st Dep’t 2005) ......................................................................... 21 David v. Hutchinson, 114 A.D.3d 412 (1st Dep’t 2014) ....................................................................... 22 Foster-Sturrup v. Long, 95 A.D.3d 726 (1st Dep’t 2012) ............................................................. 19, 20, 21 Holmes v. Bronx Lebanon Hosp. Center, 128 A.D.3d 596 (1st Dep’t 2015) ........................................................... 18, 19, 21 Joseph v. City of New York, 74 A.D.3d 440 (1st Dep’t 2010) ......................................................................... 22 Koeppel v. Park, 228 A.D.2d 288 (1st Dep’t 1996) ........................................................... 17, 20, 21 7789881v.1 Preliminary Statement This brief is submitted in behalf of Robert S. April, M.D. and Robert S. April, M.D., P.C. who respectfully request that this court reverse the trial court’s June 30, 2016 order (New York County, Lobis, J., J.S.C.) which denied the defendants’ motion for summary judgment. Proximate causation is lacking in this medical malpractice case. Plaintiff Tara Keating Brooks had a congenital malformation that could not be seen on non-invasive imaging. Even if it were established that such testing should have been performed, since it would not have diagnosed the abnormality, the defendants are entitled to summary judgment for lack of proximate causation. It is conceded that an angiogram (which is an invasive and dangerous test) would have revealed the abnormality. But Brooks’ expert does not opine that an angiogram was indicated! He merely states that “had an MRI/MRA or CTA or conventional angiogram been performed” (R. 1019) then the abnormality would have been diagnosed. But the record shows unmistakably that an MRI/MRA would not have diagnosed the abnormality (because these tests were in fact performed and did not diagnose the it). Only an angiogram would have been diagnostic and Brooks’ own expert does not opine that this test was required. Given this reality, the trial court erred in denying the defendants’ motion for summary judgment. 2 7789881v.1 Question Presented Question : Where indicated testing would not reveal a medical problem and testing that would reveal it was not indicated, must summary judgment be granted? Yes. Proximate causation is lacking. Statement of Facts --- Brooks’ Micro AVM Well before any of the events at issue and, in fact, since the time of her birth Brooks had a congenital abnormality in the vessels of brain. (R. 52). Specifically, Brooks had what is known as a cerebral arteriovenous malformation or “AVM.” (R. 1008). An AVM is not a single “thing” it is the name given to an area of the brain that has abnormal vasculature. (R. 1008). In a normal brain oxygen-rich blood flows through arteries which then become progressively smaller vessels, eventually flowing into tiny vessels called capillaries. (R. 1019). The oxygen rich blood passes through the capillaries’ walls to “feed” the surrounding tissue. (R. 1019). Once blood is depleted of oxygen, it travels back through progressively larger veins until it reaches the heart. (R. 1019). In rare instances, some of the smaller vessels do not form. (R. 1008). As a result, the area where these small vessels are missing is deprived of normal blood flow. (R. 1019). The affected tissue cannot not draw blood from the missing capillaries. (R. 1019). Instead, blood flows directly from arteries to veins and the surrounding tissue is deprived of oxygen. (R. 1019). 3 7789881v.1 One consequence of this abnormal structure is that the arteries and other larger vessels in the affected area are under abnormally high pressure. (R. 1019). Because of the high pressure, blood can leak from them - that is, they can bleed. (R. __). Unlike an aneurysm or other similar malformation, when these bleeds occur, the abnormality does not go away (that is, it does not “burst” like an aneurism would). Instead, the area of abnormal vasculature, the AVM, remains in place and can be diagnosed, including after the bleed occurs (R. 951) – with the right imaging studies. Brooks’ brain had a small AVM. A very small AVM. A micro AVM. It was so small that it could not be seen on non-invasive diagnostic imaging such as an MRI, MRA and CTs. (R. 932). This is not speculation; all of these tests were done in this case (some, admittedly, after Brooks’ micro AVM bled, after her treatment with Dr. April). (R. 854-865, 872-883, 933). The non-invasive tests did not “see” this area of malformation. (R. 931). This is not a matter of the radiologists not having noticed it on the images taken and having omitted it from their reports. The AVM simply does not show up on any of the non-invasive images. This phenomena is not unknown. In fact, it has a name; Brooks’ micro AVM was “MRI occult.” (R. 932). The only test that ever showed Brooks’ micro AVM was an angiogram. (R. 935). 4 7789881v.1 An angiogram is an invasive test. It involves threading a catheter from the patient’s thigh, through her vascular system, up and into her brain. (R. 51). The catheter releases dye directly to the area under examination. (R. 51). Images are then taken which allow for a very detailed examination. (R. 51). This invasive test has significant risks, ranging from stroke and renal failure. (R. 52). This is not surprising since (unlike non-invasive testing like MRIs, MRAs and CTs) an angiogram involves actual invasion of the patient’s body. It was with this angiography and only with this test that Brooks’ micro AVM was or could be found. (R. 935). The finding was not made until well after Brooks’ treatment with Dr. April. (R. 935). Until then no one knew that Brooks had this abnormality. --- Brooks’ Fall Well before the revelation of the micro AVM, on October 23, 2010, Brooks (unaware of her vascular malformation) was tossing a football around with her family at Giants Stadium. (R. 153). She fell. (R. 153). Her theory of the case now is that she fell because of her AVM. (R. 1004). But at the time, she reported to her physicians that she simply tripped and fell and hit her head. (R. 600). She briefly lost consciousness. (R. 154). She bruised her face pretty badly – in fact she sought a consultation with a dentist thinking she might need to have dental work done (though ultimately she did not). (R. 156). 5 7789881v.1 In the aftermath of her fall and loss of consciousness, Brooks recounts, she had headaches and memory problems and was generally not feeling well to the point where she felt she needed to see a physicians. (R. 157). She got a referral to an internist and ultimately to Dr. April. (R. 152). At this point, two weeks had passed since her fall. (R. 781). --- Brooks’ Treatment with Dr. April On November 2, 2010 Brooks presented to Dr. April., who is a neurologist. (R. 781). She told him what had happened and about her ongoing complaints. (R. 781). Dr. April did an examination (which was normal) and ordered a CT scan. (R. 782, 783). We note here that under Brooks’ theory of the case, Dr. April departed from the standard of care during this examination and the ones that followed. (R. 1011- 1021). These alleged departures include Dr. Books’ performance of a test that involves “shaking” the patient’s head, Dr. April’s allegedly improper notations about a test for a neurological response called the “Babinski sign,” Dr. April’s failure to consider differential diagnoses or the possibility that a neurological abnormality caused Brooks’ fall (and not the other way around) and, at a later visit, prescribing certain medications. (R. 1011-1021). As is explained below, all of these claims are irrelevant to the determination of this appeal. In fact, for the purposes of this appeal (but only that!) we invite this 6 7789881v.1 court to assume that each of the departures claimed by Brooks’ expert occurred. If that were so, this would still be a summary judgment case because none of those departures proximately caused Brooks’ ultimate injuries. The CT that Dr. April ordered was done on the same day. (R. 787). It was normal. (R. 787). Specifically; it did not show the AVM. (R. 787). It also did not show any kind of a bleed so based on this examination Dr. April was able to rule out both that Brooks had had a bleed when she fell, that she had a bleed since her fall and the possibility that she had any kind of ongoing bleeding in her brain. (R. 780). Dr. April informed Brooks of the results and scheduled her for a follow-up exam. (R. 780). Brooks returned on November 8th and reported that she continued to feel unwell and still had headaches. (R. 777). She told Dr. April that she had two more falls in the prior week. (R. 776). Dr. April again examined Brooks, but he did not order further radiological testing. (R. 777). Throughout his treatment of Brooks (and to this day, in fact), it was Dr. April’s opinion that Brooks’ complaints originated with her fall and were due to post-concussion syndrome. (R. 668, 774). Brooks returned to Dr. April on November 15, reporting the same complaints; headaches and being unable to function in her usual way. (R. 775). Dr. April told her that she needed to take time off of work to rest. (R. 775). (And the fact that Brooks did not comply with this directive (R. 195) did not make her 7 7789881v.1 condition any easier to decipher.) Dr. Brooks did not order further radiological testing on November 15. (R. 775). November 30, 2010 was a turning point in Brooks’ condition. Though it was not known at the time, it is evident now that this was the day that her long-present micro AVM caused a bleed in her brain. As a result, Brooks got a severe headache and an interruption in her vision. (R. 196). She called Dr. April whose impression was that Brooks’ symptoms were the result of a migraine. (R. 693). He told Brooks to come in for an examination the next day and to take Aleve and rest in the meantime. (R. 773). Brooks saw Dr. April again on December 1. (R. 773). Dr. April did an EEG (to find any new lesion [R. 773] and detect focal dysfunctions of the brain, including if caused by a bleed) (R. 702). The test was normal. (R. 704). Dr. April, thinking that Brooks was having migraines, gave Brooks non-steroidal anti- inflammatories. (R. 706). The next day, Brooks sought a second opinion from another physician. --- Brooks’ Subsequent Treatment Brooks went to neurologist Dr. Paul-Henri Cesar for a second opinion. (R. 833). Dr. Cesar ordered an MRI. (R. 835). The MRI showed that Brooks had had a brain bleed. (R. 844). Critically, the MRI did not show the AVM (R. 843- 8 7789881v.1 844) (and, recall, the AVM does not go away after a bleed; the abnormal vascular pattern was absolutely still present in Brooks’ brain, but still unseen). The MRI having identified that there had been a bleed and because Brooks had ongoing complaints even after the bleed had started to resolve, the task became to identify the source of the bleeding. To accomplish this, a barrage of other radiology tests were done over the next seven months. None of them showed an AVM! Specifically, in addition to the November 2 CT (R. 778) and December 7 MRI (R. 843), neither of which saw the AVM, Brooks underwent another CT on December 9 (R 860) and on December 10 an MRI (R. 858), an MRA (862) and an MRV (R. 856). She had yet another MRI on May 24. (R. 933). All of them showed what was left of the bleed – but none of them showed the AVM. Of course by now physicians knew there was something in Brooks’ brain causing a bleed (whereas prior to the bleed, it was entirely plausible that the most that was wrong with Brooks was that she had had a concussion from her fall). Ultimately, having exhausted non-invasive options and now with the knowledge that there was something to be found, an angiogram was done – and that test found the micro AVM on June 13, 2011. (R. 935). Brooks underwent surgery to ensure that she would have no further bleeds. (R. 951). She had complications and believes that had the AVM been diagnosed 9 7789881v.1 prior to its rupture, the repair surgery would have been less complicated and less likely to cause damage. (R. 86). It is on this basis that Brooks sued Dr. April for medical malpractice and lack of informed consent. 1 (R. 68). --- The Summary Judgment Motion Dr. April and his practice moved for summary judgment. (R. 18). In support of their application, they submitted the affidavit of Dr. David Kaufman, a neurologist. (R. 42). Dr. Kaufman recounted each encounter Brooks had with Dr. April and opined specifically about each that Dr. April conformed to the standard of care. (R. 42-57, 53-56). Overall, Dr. Kaufman stated, Dr. April’s diagnosis of post-concussion syndrome was entirely reasonable. (R. 53-56). Dr. Kaufman explained that, in his opinion, additional radiology testing was not indicated. (R. 53-56). In fact, Dr. Kaufman opined, an angiography was outright contraindicated prior to Brooks’ bleed. (R. 56). Dr. Kaufman explained that none of the non-invasive tests showed Brooks’ micro AVM (R. 56) and he opined that nothing Dr. April did or did not do was a proximate cause of Brooks’ course. (R. 57). Additionally, Dr. Kaufman pointed out that after the bleed occurred on November 30, Brooks’ course was set and nothing that Dr. April at the December 1 In the motion at issue, Dr. April moved to dismiss the lack of informed consent cause of action. (R. 31). Brooks did not oppose this part of the motion (R. 960) and the trial court granted this aspect of it. (R. 7). This portion of the trial court’s order is not at issue. 10 7789881v.1 1 visit was going to change her ultimate outcome. (R. 56). Thus, proximate causation was lacking for the November 30 call and the December 1 visit. (R. 56). --- Brooks’ Opposition Brooks’ expert identified a host of claimed departures, including such items as the performance of “head shaking” test, even though the expert himself observed that he could not identify any damage such a test could cause. (R. 1011, stating that “[t]he degree of harm to a patient with intracranial bleeding caused by this maneuver cannot be known.”) Indeed, none of the alleged departures could conceivably have any causal relationship to Brooks’ outcome – save the issue of radiology studies. As to those and on the issue of proximate causation, it is Brooks’ theory of the case that “had an MRI/MRA or CTA or conventional angiogram been performed” the micro AVM would have been diagnosed. (R. 1019, emphasis added). This theory is carefully worded in the disjunctive in order to breach the gap to the departures claimed. Such finessed wording cannot obfuscate the reality, however, that Brooks’ expert not once claims that an angiogram was indicated during Dr. April’s treatment of Brooks. (R. 1002-1021). Instead, Brooks’ expert claims only that non-invasive imaging was indicated. Preliminarily, the expert states that Dr. April “deviated from the accepted standard of medical care in not ordering indicated tests which would have been 11 7789881v.1 dictated by proper performance of differential diagnosis, specifically including cerebral MRI and MRA or CTA or conventional cerebral angiography.” (R. 1011). It is critical to note here too the disjunctive; the expert opines only that some of these tests were indicated. As to which ones, why and when, the expert offers the specific theories recounted below. The following are not examples of these specifics but comprise a complete list of every single instance of Brooks’ experts’ opinions with respect to a departure for the alleged failure to order indicated radiology studies; R. 1012, ¶ 4 (continued from prior page): Brooks’ expert claims that an “MRI and MRA should have been obtained” after the EEG by Dr. April was negative (and that these tests would have been required if the EEG had been positive also). There is no mention of an invasive test, such as an angiogram, having been indicated. R. 1014, ¶ 24: Brooks’ expert claims that given Brooks’ “unexplained semiology” Dr. April should already have ordered “an MRI/MRA” but he should 12 7789881v.1 certainly have done so in view of the presence of a positive Babinksi sign. 2 The expert does not claim that an angiogram was indicated either because of the “semiology” or the Babinski reflex. R. 1015, ¶ 26 (continued from prior page): Brooks’ expert again claims that the presence of the Babinski sign required “an MRI/MRA” – but he does not claim that an angiogram was required. R. 1015, ¶ 28: Brooks’ expert opines here that “[a] CT scan does not provide necessary information with respect to vascular structures” thus “an MRI/MRA [is] necessary” to explore the possibility of a vascular anomaly. Not only does the expert not claim here that an angiogram must also be done but he also eliminates the CT element of his disjunctive claim that “had an MRI/MRA or CTA or conventional angiogram been performed … the presence of [Brooks’] AVM would have been revealed.” (R. 1019). 2 The Babinski reflex is present in children under two years of age and involves the upward curling of the big if the bottom of the foot is scratched. (R. 1014). When this reflex is present in adults it can be a sign of a neurological abnormality. There is a note in Dr. April’s chart to the effect that Brooks demonstrated the Babinki reflex on the left side. Dr. April testified that this is a typo. (R. 620). Dr. Kaufman explained in the defendants’ behalf that in no event does a left Babinski sign make sense in this case because given the location of the AVM, if it had caused such an abnormal reflex, that would have been on the right side. (R. 1047). So it really is a typo, argued the defendants. (R. 1047). Brooks hedges on this issue though her expert ultimately concedes that the presence or absence of a Babinski sign “is not critical to the steps dictated by the standard of care [for Brooks’ treatment]” to evaluating what the standard of care required in this case. (R. 1009). Indeed, this is all off the point as none of this has to do with the proximate cause argument outlined throughout. 13 7789881v.1 R. 1016, ¶ 29: Brooks’ expert criticizes Dr. April’s (alleged) reliance on an MRI performed on Brooks years prior and states that given Brooks’ presentation at the time of her visit to Dr. April “MRI/MRA evaluation contemporaneous with [Brooks’] November 2010 complaints was indicated.” Not an angiogram though, apparently. R. 1017, ¶ 30 (continued from prior page): Brooks’ expert opines here that because Brooks fell twice after her initial fall at the stadium, “an MRI/MRA was required.” Again, no mention of an angiogram. R. 1017, ¶ 32: Brooks’ expert opines that Brooks may have had seizure activity and that the suspicion of this “required further diagnostic workup (MRI/MRA).” There is no “angiogram” in that parenthetical. R. 1018, ¶ 34: Given Brooks’ December 7 MRI findings (where the bleed was seen – but not the micro AVM), her expert opines that “it was a departure on Dr. April’s part to fail to order an MRI/MRA commencing on November 2, 2010 and later on November 8, 2010 and November 15, 2010.” That’s a lot but that is all of it. These are the only specific departures with respect to radiology testing which Brooks’ expert claims occurred. Not once does the expert claim that there was an indication to do an angiogram, that an angiogram was required because of a particular finding or even that the absence a particular finding warranted an angiogram. 14 7789881v.1 Critically, Brooks’ expert also does not opine that the angiogram should have followed the non-invasive radiology tests. Specifically, Brooks’ expert does not claim that the standard of care would have required that if the non-invasive radiology findings were normal (in that if they showed no abnormality) then further investigation by invasive testing would have been required. This omission is in stark contrast with the reasoning Brooks’ expert demonstrates with regard to his criticism of Dr. April’s EEG examination. In discussing the EEG, the expert offers, in effect, this assessment; a negative EEG is not diagnostic of anything and a neurologist has an obligation to continue to investigate possible alternative diagnoses. (R. 1012, Brooks’ expert stating that “if the EEG had been … negative, [Dr. April] still would not know [Brooks’] precise diagnosis… [t]hus … MRI and MRA should have been obtained.”) So when it comes to the EEG, Brooks’ expert articulates the full range of possibilities and concludes that they ultimately required, in the expert’s opinion, further and more involved testing in the form of an MRI and MRA. When it comes to Brooks’ expert’s suggestion that an MRI/ MRA should have been done, however, he does not take this route and his silence in this regard is telling. Specifically, he does not say that, for example, if Dr. April had ordered an MRI on November 15 (as Brooks’ expert seems to think he should have) and that if that MRI came back “unremarkable” then Dr. April should have pursued the 15 7789881v.1 possibility of an MRI-occult deformity and should have performed invasive testing immediately and certainly before November 30. With respect to the December 1 visit, Brooks’ expert concedes that by this time the bleed had occurred. (R. 1020, stating that it is “correct” that “the rupture likely occurred when the acute symptoms were reported on November 30.”) Brooks’ expert makes no claim that anything could have been done by then to change Brooks’ course. (R. 1020). --- The Reply On reply, the defendants pointed out the flaw in Brooks’ reasoning; since Brooks’ micro AVM was demonstrably MRI-occult, any alleged failure to order further non-invasive testing was not the proximate cause of her injuries. (R. 1044). --- The Order on Appeal The trial court denied the portion of the defendants’ motion which was to dismiss the medical malpractice cause of action. (R. 16). The court held that Brooks raised questions of fact on possible departures from the standard of care and “concerning whether prior testing could have revealed the existence of the AVM.” (R. 17). For the reasons that follow, this determination was error, thus, the defendants appeal. (R. 3). 16 7789881v.1 Argument Point I Summary Judgment Must be Granted Because There is no Proximate Cause The only alleged departures relevant to the analysis are those relating to radiology testing. Brooks’ theories of other departures (having to do with medications, neurological examinations, differential diagnoses and so on) are irrelevant. This is so because, according to Brook’s own admission, the micro AVM in Brooks’ brain “pursue[d] its natural course” (R. 1012) when it went undiagnosed – this is to say that it was not (as it could not have been) aggravated or changed in any way by anything that Dr. April did or did not do. Brooks’ claim is that the micro AVM’s “natural course” should have been and could have been halted by an earlier diagnosis. Since that earlier diagnosis could only have been made by radiology testing, the only relevant claims relate to that. There are two types of claims with respect to the imaging; one set concerns tests which Brooks’ expert claims were indicated. These are MRIs, MRAs and CTs. All non-invasive testing. The second category is invasive testing (that is, an angiogram). Brooks’ expert does not claim that this test was indicated during Dr. April’s treatment. He does claim – and this is conceded on this appeal – that it would have shown Brooks’ micro AVM. 17 7789881v.1 --- The AVM was MRI-Occult, Therefore the Alleged Failure to Order Non-Invasive Testing is not the Proximate Cause of it Going Undiagnosed At the risk of stating the obvious, if doing A does not resolve problem B then not doing A is not the proximate cause of B continuing. Koeppel v. Park, 228 A.D.2d 288, 290 (1st Dep’t 1996) (holding that “[i]n order to establish a prima facie case of medical malpractice, 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). MRIs, MRAs and CTs were done in this case, including after Dr. April’s treatment ended. They did not show the AVM because it was MRI-occult. There is no claim in this case that the subsequent imaging studies were misread or improperly performed. The AVM was instead genuinely so small that it was invisible to these tests. Thus, even if Dr. April had ordered all of these tests, the result would have been the same - that is, the AVM would not have been seen. So while Brooks’ expert opines that “had an MRI/MRA or CTA or conventional angiogram been performed … the presence of [Brooks’] AVM would have been revealed” (R. 1019) most of this is demonstrably untrue; MRIs were done on December 2, December 10 and May 24 and none showed the AVM. An MRA was done on December 10 and it did not show the AVM. An MRV that day had the same result; no AVM was found. Brooks’ own expert concedes that a CT 18 7789881v.1 “does not provide necessary information with respect to vascular structures” (R. 1015) but, for completeness’ sake we note here that CTs were done on November 2 and December 9 and did not show the AVM. Yet Brooks’ expert claims that her course was proximately caused by Dr. April’s failure to order additional noninvasive testing. This claim (to put it in terms appropriate for publication) lacks “the evidentiary basis for his conclusion.” Holmes v. Bronx Lebanon Hosp. Center, 128 A.D.3d 596 (1st Dep’t 2015). Preliminarily, we note that Brooks’ expert’s opinion is “conclusory because he did not state what the … testing might have disclosed.” Bacani v. Rosenberg, 74 A.D.3d 500, 503 (1st Dep’t 2010). Of course, a conclusory expert opinion is insufficient to defeat the defendants’ entitlement to summary judgment. Id. But the record reveals, of course, what the testing would have shown if it had been ordered by Dr. April. Nothing. It would have shown nothing. Therefore, there is no proximate cause. Holmes v. Bronx Lebanon involved a similar proximate cause issue. In Holmes it was the plaintiff’s claim that had appropriate diagnostic testing been performed during his presentation to the defendant hospital, his appendicitis would have been diagnosed prior to rupture, thereby avoiding more extensive surgery. The defendant hospital argued, however, that when the plaintiff was a patient there, no diagnostic testing could possibly have shown the plaintiff’s developing 19 7789881v.1 appendicitis. In Holmes this was because the inflammation ultimately leading to appendicitis had not yet begun when the plaintiff was a patient at the hospital. Given this fact, it would have been impossible to diagnose the plaintiff’s condition on the tests which the plaintiff claimed should have been done. The plaintiff’s expert nevertheless opined that testing “would have revealed” the inflammation. Holmes, 128 A.D.3d at 596. This court declared that the expert’s opinion was “conclusory” and that he had “failed to identify the evidentiary basis for his conclusion.” Id. This court held that plaintiff’s case was required to be dismissed for lack of proximate cause since; even if the defendant had done the testing which the plaintiff claimed was necessary, the abnormality would not have been found. Id. Incidentally, it is immaterial that Holmes was a dismissal after the plaintiff failed to carry his burden at trial. Where the plaintiff fails to carry her summary judgment burden (after the defendants’ prima facie showing, of course), the result is the same. This was the case in Foster-Sturrup v. Long, 95 A.D.3d 726 (1st Dep’t 2012). In Foster-Sturrup the plaintiff claimed that her ectopic pregnancy should have been diagnosed earlier during a visit to her physician’s office. The plaintiff alleged that her doctor departed from the standard of care by not performing a blood test to determine whether she was pregnant and by not doing an ultrasound 20 7789881v.1 to visualize the pregnancy. The thing was, however, that the plaintiff was so early in her pregnancy that an ultrasound would not have been able to see the embryo or its location during the plaintiff’s visit at issue. Given these facts, this court held that “[e]ven if we accept plaintiffs’ argument that [the defendant’s] failure to administer a blood pregnancy test was a departure from accepted medical standards, defendants’ summary judgment cross motion still should have been granted because plaintiffs failed to raise an issue of fact as to causation.” Foster- Sturrup, 95 A.D.3d at 729; see also Koeppel, 228 A.D.2d at 290 (holding that proximate causation is lacking where the plaintiff claimed that a physician departed from the standard by failing to follow-up for test results but the test were all normal so the defendant physician would have learned nothing by doing the follow-up). Foster-Sturrup is on point on a different issue as well. In Foster-Sturrup the plaintiff’s expert also alleged that the plaintiff was given the wrong medication and that had her true condition been diagnosed, the correct medication would and should have been given. But the expert in Foster-Stirrup did not opine in opposition to the defendants’ summary judgment motion that the irregularity in the medication regimen made any difference at all to the plaintiff’s course. As a result, the defendant was entitled to summary judgment. Foster-Sturrup, 95 A.D.3d at 729. 21 7789881v.1 The same result must follow here. There is no claim that any alleged departures not relating to radiology testing could or did aggravate Brooks’ condition. And, with respect to the radiology testing, regardless of the claimed departures, the fact is that if Dr. April had done precisely what Brooks now claims he should have done, the micro AVM would not have been detected. Therefore, Dr. April’s treatment was not the proximate cause of Brooks’ course and summary judgment must be granted. Holmes, 128 A.D.3d at 596; Foster-Sturrup, 95 A.D.3d at 726; Koeppel, 228 A.D.2d at 288. --- Proximate Causation is Lacking after the November 30 Bleed For the sake of completeness, we note here that no proximate causation can possibly be found from any events that occurred after Brooks’ bleed. This is so because it is Brooks’ theory of the case that the bleed should have been prevented and Brooks concedes that the bleed occurred on the morning of November 30. Thus, prevention would have been impossible after that. There can therefore be no proximate causation flowing from Dr. April’s handling of the phone call on November 30 or Brooks’ office visit on December 1. Calogerakos v. City of New York, 22 A.D.3d 407 (1st Dep’t 2005) (holding that where the alleged act of malpractice occurred after the injury, proximate causation is lacking and summary judgment must be awarded to the defendant). 22 7789881v.1 Point II There is no Departure Vis-à-vis the Claim that an Angiogram would have Found the Micro AVM. Dr. Kaufman opined for the defendants that Dr. April did not depart from the standard of care when he did not order additional testing. (R. 42-57). He opined that an angiogram was not only not indicated (R. 56) but was contra-indicated (R. 56) given its enormous risks. (R. 51). Brooks’ expert did not counter these assertions and did not once claim that an angiogram was indicated during Dr. April’s treatment. (R. 1002-1021). Having failed to address and counter the defendants’ prima facie showing in this regard, there is no question of fact on this issue. Joseph v. City of New York, 74 A.D.3d 440 (1st Dep’t 2010) holding that the plaintiff failed to raise a question of fact where “[her] expert’s affirmation was conclusory and did not adequately address the prima facie showing in the detailed affirmation of [the defendant’s] expert.”) Brooks’ expert opines in a hypothetical argument, that if an angiogram had been performed, it would have identified the AVM – but absent an indication for testing, a physician has no duty to identify latent disease. 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). Since even in Brooks’ experts’ opinion there was an absence of an indication for an angiogram, there is no question of fact on whether Dr. April did departed from the standard of care when he did not order one. Consequently, the defendants are entitled to summary judgment. Conclusion For the foregoing reasons, it is respectfully requested that the portion of the order which denied the defendants’ motion for summary judgment be reversed and that the defendants’ motion for summary judgment be granted in its entirety. Dated: New York, New York November 7, 2016 Respectfully submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By:. A Jiÿfy C. Selmeci Attorneys for defendants-appellants Robert S. April, M.D. and Robert S. April, M.D., P.C. 150 East 42nd Street New York, New York 10017-5639 Our File: 00703.26347 23 778988 lv.l 24 7789881v.1 PRINTING SPECIFICATIONS STATEMENT Pursuant to 22 NYCRR § 600.10(d)(1)(v) The foregoing brief was prepared on a computer. A proportional typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 5,337. INDEX NO. 805144/2013 RECEIVED NYSCEF: 08/10/2016 IFILED: NEW YORK COUNTY CLERK 08/10/2016 01:40 PM1 NYSCEF DOC. NO. 75 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FIRST DEPARTMENT x TARA KEATING BROOKS and CHRISTOPHER BROOKS, Index No.: 805144/13Plaintiffs, PRE-ARGUMENT STATEMENT -against- ROBERT S. APRIL, M.D. and ROBERT S. APRIL, M.D., P.C., Defendants. x Full Names of Parties: The full names of the parties are as captioned above. Names of Counsel: Attorneys for Defendants: Judy C. Selmeci, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKER 150 East 42nd Street New York, NY 10017 (212) 490-3000 Attorneys for Plaintiff. Monica Risi Merrill, Esq. KEENER & KEENER Attorneys for Plaintiff 140 Broadway- 37th Floor New York, NY 10006 (212) 425-0700 7630580v. I Method of Disposition in Trial Court: This appeal is taken from an Order of the Supreme Court, New York County (Lobis, Joan, M., J.S.C.) dated July 30, 2016 and filed in the County Clerk’s Office on July 11, 2016. Brief Description of Nature of Cause of Action: The plaintiff alleges personal injuries on November 2, 2010 from a fall followed by complaints of headaches, lower lip numbness, lethargy and feeling that her thought process was off. State Briefly the Result Below: The Court denied defendants’ motion for summary judgment. State Whether There Is Any Related Action or Proceeding: None Issues to be Raised on Appeal: 1 . Did the court err in denying defendants motion for summary judgment? 2. Such other and further issues as may become apparent upon review of the record on appeal. Dated: New York, New York August 9, 2016 By: Jui 7630580v.1 2 of 2