Tara Keating Brooks, et al., Appellants,v.Robert S. April, M.D., et al., Respondents.BriefN.Y.June 5, 2018KELNER AND KELNER ATTORNEYS AT LAW 140 BROADWAY 37TH FLOOR NEW YORK, N.Y. 10005 (312) 425-0700 FAX NO.: (212) 425-0007 February 12, 2018 Hon. John P. Asiello Clerk of the Court State of New York Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: Brooks v. April APL-2017-00234 Dear Mr. Asiello: Plaintiffs-Appellants (hereinafter, plaintiffs) submit this as their response to the Court's sua sponte determination pursuant to §500.11 of the Court's Rules of Practice that it may choose to examine the merits of this appeal on the basis of the Appellate Division record and briefs, the opinions in the courts below, and letter submissions on the merits from each counsel. Rule 500.11 - Disclosure statement - Inapplicable to the Plaintiff herein. Plaintiffs reserve the right to fully brief issues regarding the defendants’ failure to shift the burden to the plaintiffs as set forth in the brief filed with the Appellate Court. Preliminary Statement This appeal presents a combination of errors of law that lead to three out of five of the Judges in the Appellate Division, First Department, to reach the erroneous conclusion that defendants-respondents (hereinafter defendants) defendants were entitled to summary judgment dismissing plaintiffs’ Complaint. Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 2 We submit that the Court committed errors involving an unspoken but clear rejection of well-known and accepted legal principles applicable to motions for summary judgment enunciated by this Court and the Appellate Division, First Department, itself. As an example, the majority below chose to engage in issue resolution rather than issue finding on multiple occasions to reach its final conclusion. We also submit that the majority below failed to review the facts in a light most favorable to the party opposing the motion, in this case, the plaintiffs. It cannot be gainsaid that at almost every opportunity to find an issue to be resolved by the jury, the majority engaged in issue determination. This was error. Johnson v. City of New York, 15 N.Y.3d 676 (2010). Had these errors not been made, it is clear summary judgment would not have been warranted as a matter of law. Procedural History of the Case On July 11, 2016, a Decision/Order of the Supreme Court, New York County (Joan B. Lobis, J.) was entered in the Office of the New York County Clerk, which denied defendants' motion for summary judgment. A final Decision and Order of the Appellate Division, First Department, dated October 24, 2017 and entered with the Clerk of the Court, New York County, on November 14, 2017, reversing the Decision/Order of the Supreme Court dismissing plaintiffs’ complaint. (154 A.D.3d 564, 63 N.Y.S.3d 331 (1 Dept. 2017). This final Decision and Order of the Appellate Division, First Department, was not unanimous having two dissents (Mazzerelli and Moskowitz, JJ.). This Court has jurisdiction of this Appeal pursuant to CPLR 5601 (a). Relevant Facts Tara Keating Brooks, a 35 year old attorney, fell on October 23, 2010 while tossing a football with her 14 year old nephew. (R 595, 600, 605). She landed on a concrete surface and struck the front of her face and forehead sustaining a brief Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 3 loss of consciousness (under one minute) (R597, 154) and memory loss. (R600- 601). She did not fracture or lose teeth but sought dental evaluation by Dr. Krakow for dental discomfort. She sustained facial bruising, facial cuts, scratches and a bump on her forehead. (R154, 158). After the fall, she experienced headaches over the right occipital and frontal regions and some numbness of her lower lip. (R598, 603). During the week following the accident, Ms. Keating Brooks experienced headaches, mental fogginess, fatigue, sleepiness and difficulty walking. (R 157, 180, 182). She complained her thought processes were "off." (R 155, 180, 182). She was concerned about impairment of higher executive functions (analytic processing, speed of thinking, planning, decision making, etc.) and its impact on her employment. (157, 158, 183). Due to the continuing nature of her physical and mental complaints, Ms. Keating Brooks sought the services of a Dr. Zaremski who saw Ms. Keating Brooks on November 2, 2010. (R 150). He examined her, performed an electrocardiogram and suggested immediate neurological evaluation by Dr. April. Given her concern, Ms. Keating Brooks saw Dr. April the same day. (R 150). Ms. Keating Brooks informed Dr. April that some 20 years before, she had been treated for migraines at the age of 15. (R 160, 707). She informed Dr. April that the headaches she experienced after her October 23, 2010 fall were completely different and not "migraine" in nature. (R 200). Dr. April examined her and in the course of examination "shook her head" (R 175) which resulted in her "seeing stars." (R 623, 624). Dr. April testified shaking of the patient's head tests for bleeding in the brain. (R 623). After his examination, Dr. April referred Ms. Keating Brooks for a CT scan (R 628) which was performed that day (November 2, 2010) at Park Avenue Radiology and interpreted as "unremarkable". (R 649). Dr. April's impression was Ms. Keating Brooks was suffering post-concussion headache. (R 655). It is significant to note at this juncture that Dr. April never considered that the "fall" (which to the untrained patient precipitated her medical complaints) may have, in fact, been caused by a medical condition and not simply a trip and fall. (R 1004). In any event, Dr. April scheduled Ms. Keating Brooks for a return visit November Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12,2018 Page 4 8, 2010. Dr. April told her the radiologist interpreted the CT scan as normal. (R 648) with no accumulation of blood. (R 178). During the ensuing week Ms. Keating Brooks’ headaches, thought processing and confusion worsened. Additionally, her balance was compromised and she experienced visual disturbances and sensitivity to light. (R 182). Ms. Keating Brooks reported to Dr. April on November 8, 2010, she had fallen on two occasions since her November 2, 2010 initial visit, representing a total of three falls in a relatively short time. (R 182). Ms. Keating Brooks continued to take non¬ steroidal anti-inflammatory medication. She testified she told Dr. April "there is something wrong with me." (R 182). The examination on November 8, 2010 was similar to that performed on November 2, 2010 "including head shaking" (R 662) and Dr. April requested that Ms. Keating Brooks return the following Monday, November 15, 2010. (R 669). His plan of treatment was that she should rest as much as she could (R 200) and he informed Ms. Keating Brooks that her symptoms would improve and she should not worry. (R 183). Despite her lack of improvement in symptoms, Dr. April’s working diagnosis remained “benign headaches.” (R 668). Ms. Keating Brooks returned to Dr. April as instructed on November 15, 2010. (R 184). Her symptoms had persisted. She experienced ongoing headaches, sensitivity to light, nausea, and difficulty with mental focus, concentration and processing. (R 185). Dr. April told Ms. Keating Brooks she had suffered a bad fall, her CT was negative and there was nothing wrong and it would take time for her to feel better. (R 185, 186). Dr. April suggested she see him again in two weeks. (R 189). Dr. April's impression remained unchanged with the likely diagnosis now described as post-concussion syndrome modulated by migraine background. (R 188). He testified his thinking was "this was persisting longer than she likes and longer than I like. The insult (fall) and her history of headache might be producing this particular picture." (R 682, 683). Dr. April testified Ms. Keating Brooks' headaches never took on classic migraine characteristics (R 683) and his diagnosis was post-concussion syndrome modified by migraine tendency (R 684) and since he believed the CT scan had Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 5 ruled out other considerations, he “hoped that I was right” and “...this was going to go away in some mysterious fashion.” (R 684). Ms. Keating Brooks' next contact with Dr. April was a phone call on November 30, 2010 to inform him her symptoms were worsening and she was experiencing perceptual difficulty, confusion and visual disturbance. She had a severe blinding headache. (R 688,689,690, 195, 196). Ms. Keating Brooks told Dr. April she had lost areas of vision, experienced increased pain and sensitivity to light and noise and had a disturbance in her visual field. (195, 196). Dr. April instructed her to take Aleve and see him the following day. (R 692). Dr. April thought it was probably an "ocular migraine". (R 205, 406, 407, 951). According to history and testimony, Ms. Keating Brooks never before experienced visual disturbance associated with a headache or visual aura preceding a headache. (R 199). On the next and last visit, December 1, 2010, Ms. Keating Brooks' symptoms persisted. (R 203). Dr. April performed a similar exam as on prior visits and did an EEG in his office. (R 204). The EEG was interpreted by Dr. April as normal. (R 205). His impression was "ocular migraine." (R 205). He administered two packets (50 mg) of Cambia in his office and gave her samples of Cambia for future doses. (R 206, 406, 213, 699). Cambia is a non-steroidal anti-inflammatory preparation used for migraine. (R 699). He also gave her a prescription for another preparation, Sumatriptan. (R 706). Dr. April did not refer Ms. Keating Brooks for further studies and instructed her to wait rest and call him if her headache persisted or worsened. (R 206). The next day, December 2, 2010, Ms. Keating Brooks sought a second opinion regarding her condition from Dr. Paul Henri Cesar at Columbia Presbyterian Medical Center. (R 214, 216). Dr. Cesar performed an examination and ordered an MRI. (R 222). The MRI performed on December 7, 2010 revealed a large region of blood breakdown products in her left parietal lobe. (R 843, 844). Ms. Keating Brooks was referred to a neurosurgeon for evaluation. (R 227). Ms. Keating Brooks saw Dr. Guy McKhann on December 9, 2010. (R 228). A contrast CT scan was ordered (R 228) and Dr. McKhann's findings were Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12,2018 Page 6 consistent with hemorrhage in the left superior parietal lobe and a vascular abnormality was noted. (R 229). Ms. Keating Brooks was then scheduled for a contrast MRI/MRA to delineate the anatomic location of the vascular abnormality for the purpose of planning further treatment. (R 432). Ms. Keating Brooks underwent contrast MRI on December 10, 2010 which showed the area of bleeding unchanged from the December 7, 2010 study. (R 797). Additional studies were performed and Ms. Keating Brooks was advised to undergo further studies over several weeks allowing time for the resolution of hemorrhage as there was too much blood for definitive evaluation. (R 433). In May of 2011, Ms. Keating Brooks underwent consultation with Dr. Gopinathan at New York University Hospital. (R 247, 440). She continued to experience headaches, thinking and concentration difficulty. A cerebral angiogram was performed on June 13, 2011 at St. Lukes' Roosevelt Hospital. (R 935, 936). The findings were: "angiographic study demonstrates evidence of a micro AVM in the left parietal lobe. There is supply from the parietal branch of the left middle cerebral artery. Drainage is through a left parietal cortical vein that drains to the superior sagittal sinus." (R 936). Ms. Keating Brooks underwent neurosurgery with resection of the AYM and residual damaged brain tissue on July 27, 2011 at Columbia Presbyterian Medical Center. (R 951) She experienced seizures several days post operatively and was placed on anti-seizure medication, a regimen which continues to the present with occasional break through seizure activity. (R 268, 885-891). Ms. Keating Brooks continues to suffer headaches, has a seizure disorder necessitating anti-seizure medication, along with visual disturbances and cognitive impairment. (R 284-286). Plaintiffs’ Expert’s Submission Plaintiffs submitted the affirmation of a Board Certified neurologist to provide the Court in a detailed and non-conclusory fashion [confirmed by the dissent, see, Brooks v. April, 154 A.D.3d 564, 569, 570 (1 Dept. 2017)] the numerous deviations from the accepted standards of medical care by Dr. April. The expert noted that Dr. April failed to properly obtain and assess Ms. Keating Brooks’ history and clinical course (episodic falls, confusion, headaches, and Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 7 visual disturbance) and further failed, therefore, to perform a differential diagnosis of her complaints with consideration of intracranial processes as the causative condition which, of necessity, would have included an AVM. (R 1009, 1010). As the dissent stated, “[Plaintiffs’ neurological expert specifically identified numerous deviations from the standard of care and noted that plaintiff showed multiple AVM symptoms before her rupture, including headaches, two or three falls, severe head pain, weakness, and visual disturbance, all of which increased after the initial visit.” (Brooks at p. 569). The expert submitted 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 and, instead, ordering an EEG without medical value and contra-indicated medications. (R 1011, 1012). The plaintiffs expert specifically found (as confirmed by the contemporaneous treating physicians) the AVM rupture hid the causative condition behind the hemorrhage which occurred upon rupture making it difficult, if not impossible to assess on the later radiological studies. (R 1017, 871). The expert affirmed that the performance of these tests prior to the rupture and bleed would have revealed the AVM at a time when treatment would have made a difference. (R 1017, 1020). The plaintiffs’ expert also affirmed that the negligence of Dr. April delayed timely and indicated treatment (obliteration of AVM by embolization and/or surgery, proton beam irradiation or some combination thereof) (R 1012) allowing the AVM to rupture with resultant hemorrhage and leakage of blood into brain tissue with consequent brain injury and permanent neurologic semiology and impairment and thus are proximate causes of the permanent neurological deficits Ms. Keating Brooks continues to suffer. (R 1021). Simply put, the defendant’s testimony that Ms. Tara Keating Brooks’ medical condition would go away in, as he said, “some mysterious fashion” (R 684) does not a medical standard make. Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 8 The Decision and Order Of The Appellate Division, First Department, Should Be Reversed It was not the role of the majority in the court below to decide who is correct but the task before that court is issue finding not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395(1957)). We submit that the majority in the court below violated this legal standard as set forth by this court on multiple occasions by making credibility determinations and findings of fact and not fulfill their mandated role to solely identify material triable issues of fact. {Vega v. Restani Const. Corp., 18 N.Y.3d 499 (2012)). We submit that in doing so the majority in the court below also rejected this Court’s direction that the facts be viewed in a light most favorable to the party opposing the motion for summary judgment. As stated by this Court in Szczerbiak v. Pilat, 90 N.Y.2d 553 (1997), “In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant.” A prime example of the majority resolving issues of fact in favor of the defendants despite specific arguments set forth by the plaintiffs’ expert submission is found below. The plaintiffs’ expert affirmed: “During the ensuing week Ms. Keating Brooks’ headaches, thought processing and confusion worsened. Additionally, her balance was compromised and she experienced visual disturbances and sensitivity to light. Significantly, as Ms. Keating Brooks reported to Dr. April on November 8, 2010, she had fallen on two occasions since her November 2, 2010 initial visit, representing a total of three falls in a relatively short time. Ms. Keating Brooks continued to take non¬ steroidal anti-inflammatory medication. She testified she told Dr. April “there is something wrong with me.” [R 182]. [R 1005]. Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 9 The plaintiffs’ expert also took note of Dr. April’s own testimony that the complaints were “...persisting longer than she likes and longer than I like.” [R 682-683]. The expert continued that Dr. April believed the insult (fall) and her history of headache “...might be producing this particular picture.” [emphasis added]. [R 683]. [R 1006]. He also noted that Dr. April testified Ms. Keating Brooks’ headaches never took on classic migraine characteristics and his diagnosis was post-concussion syndrome modified by migraine tendency. He thought if she waited, she would get better in a “mysterious fashion.” [R 683-684] [R 1006]. Finally, the plaintiffs’ expert noted that the records reveal that Ms. Keating Brooks’ next contact with Dr. April was a phone call on November 30, 2010 to inform him her symptoms were worsening and she was experiencing perceptual difficulty, confusion and visual disturbance. She had a severe blinding headache. Ms. Keating Brooks told Dr. April she had lost areas of vision, experienced increased pain and sensitivity to light and noise and had a disturbance in her visual field. [R 195-196], [R 1006]. The plaintiffs’ expert also highlighted that according to history and testimony, Ms. Keating Brooks never before experienced visual disturbance associated with a headache or visual aura preceding a headache. [R 1006]. The plaintiffs’ expert stated in the context of good and accepted medical practice on and after November 2, 2010, “As these symptoms increased after her initial visit to Dr. April on November 2, 2010, it was incumbent on Dr. April to undertake a comprehensive neurologic workup to look for the cause and to consider a differential diagnosis beyond post-concussion syndrome and migraine.” [R 1020-1021]. The expert confirmed repeatedly the need for the development of a differential diagnosis given the patients complaints. [R 1005, 1009, 1011, 1012, 1013, 1017, 1021]. The expert stated that it was error to continue to rely on the CT scan given the complaints [R 1017] and completely improper to rely on a 20 year old MRI as any part of the basis of a diagnosis [R 1016]. The plaintiffs’ expert also affirmed, Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 10 “It is my opinion with a reasonable degree of medical certainty; Ms. Keating Brooks experienced symptoms of her AVM pre-rupture. She experienced headache for over one month with a history of falling on two and possibly three separate occasions and severe continuing pain in one area of her head which worsened during the course of her treatment with Dr. April. In addition she experienced weakness, visual disturbances, confusion and cognitive changes.” [R 1020]. The defendants’ expert took the position that, “When Ms. Keating Brooks returned to Dr. April on November 8th, she reported that she was still symptomatic with headaches and not feeling herself, but was continuing to work as an attorney. While she had fallen twice, she was not dizzy and had no noticeable balance problems.” [R 46]. He also on two occasions implied it was correct to rely on a 20 year old MRI upon which to base an opinion. [R 46, 54]. The dissent, correctly in our opinion, reviewed these submissions and described the content in this manner, “I disagree with the majority that the affirmation of plaintiffs neurological expert was “conclusory” and “without evidentiary substantiation.” On the contrary, plaintiffs neurological expert specifically identified numerous deviations from the standard of care and noted that plaintiff showed multiple AVM symptoms before her rupture, including headaches, two or three falls, severe head pain, weakness, and visual disturbance, all of which increased after the initial visit. Because I conclude that these assertions raise issues of fact sufficient to defeat summary judgment, I respectfully dissent.” [Brooks at p. 569]. Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 11 The dissent further found, “Plaintiffs' expert directly addresses this question in the expert affirmation, stating that given plaintiffs history and the clinical course of her neurological deterioration, defendants should have performed a differential diagnosis of her symptoms to rule out various possible conditions, including seizure disorder or intracranial infection. There is nothing conclusory about this opinion; it simply creates a question of fact as to whether defendants should have performed a differential diagnosis before the AVM advanced to the point where it caused permanent neurological damage.” [Brooks at p. 570]. The majority, however, faced with the contradictory factual descriptions of Ms. Keating-Brooks progressing and worsening medical condition as confirmed in the record and relied upon by plaintiffs’expert and the scenario drawn by plaintiffs’ expert which, we submit, ignored the changes in Ms. Keating Brooks’ medical condition over the period of treatment, chose to find no differential diagnosis was needed and only the brief analysis of the defendants’ expert credible ruling, “Moreover, the course of events from the date of plaintiffs injury to the final date of plaintiffs treatment by Dr. April on December 1 makes clear that, throughout that period, there was never any indication of a need for a differential diagnosis. Aside from the fact that none of the tests performed by Dr. April revealed anything remarkable, plaintiffs head injury and the symptoms that followed formed the basis for Dr. April's initial diagnosis of post-concussive headache syndrome.” [Brooks at 145 AD3d at pp. 568]. As correctly noted by the minority, the majority, inexplicably, ruled that there was no need for a differential diagnosis and Dr. April acted within the standard of care as a matter of law. One of the main focuses of the defendants below was that the AVM from which Ms. Keating Brooks was suffering was “micro-occult.” [R 56]. The plaintiffs’ expert stated clearly, Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 12 “The goal of early detection is the prevention of rupture with its attendant consequences. It is my opinion, with a reasonable degree of medical certainty, that had an MRI/MRA or CTA or conventional angiogram been performed from November 2,2010 up to November 30, 2010, the presence of Ms. Keating Brooks’ AVM would have been revealed allowing timely diagnosis and treatment.” [R 1019]. In speaking of the damage presented on the later MRI studies and that the existence of the hemorrhage at that time was the reason that the AVM could not be identified after the bleed had occurred, the plaintiffs’ expert stated, “Ms. Keating Brooks saw Dr. Guy McKhann on December 9, 2010. A contrast CT scan was ordered and Dr. McKhann’s findings were consistent with hemorrhage in the left superior parietal lobe and a vascular abnormality was noted. Ms. Keating Brooks was then scheduled for a contrast MRI/MRA to delineate the anatomic location of the vascular abnormality for the purpose of planning further treatment. Ms. Keating Brooks underwent contrast MRI on December 10, 2010 which showed the area of bleeding unchanged from the December 7, 2010 study.” [R1007], The expert added, “Additional studies were performed and Ms. Keating Brooks was advised to undergo further studies over several weeks allowing time for the resolution of hemorrhage as there was too much blood for definitive evaluation.” [R1007]. The expert continued, “The presence of the extensive parenchymal damage caused by that hemorrhage made the ultimate surgical repair more complicated and delayed definitive identification of the AVM.” [emphasis added] [R1017]. Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 13 The record confirms the plaintiffs’ expert’s opinion that the hemorrhage delayed the physician’s ability to diagnose the AVM in that Dr. Guy McKhann stated in an addendum to his 12/10/10 report, “New contrast enhanced MRI reviewed. No AVM, contrast enhancing lesion, venous angioma, or cavernous malformation seen. MRV shows left transverse sinus small: more likely atretic than thrombosed. Plan f/u MRI in several weeks to allow resolution of hemorrhage first.” TR 871]. Dr. McKhann also stated in his report dated December 15, 2010, “We do need to follow her up with MR imaging once the hemorrhage has resolved further to be certain that there is not an underlying lesion, and the patient and her husband both understand these plans.” [R 868]. In contrast, the defendants’ expert did not address the fact that the presence of the hemorrhage and damage it caused was making the diagnosis of the AVM difficult if not impossible and in a most conclusory fashion concluded, “Further, Ms. Keating Brooks’ AVM was not diagnosable by non- invasive radiological studies including MRI and MRA. Rather, the micro, MRI-occult AVM was only visible by invasive cerebral angiography.” [R 56]. Given these two conflicting expert opinions and the medical record, the majority, ignoring both the opinion of the plaintiffs’ expert and the treating physicians, resolved all issues of fact by finding the following, “The record clearly establishes, however, that plaintiffs micro-AVM was MRI-occult, and thus was never detectable by means of noninvasive testing, including the December 7, 2010 MRI, the December 10, 2010 multiple tests (MRI, MRA and MRV) and the Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 14 May 24, 2011 MRI and MRA ordered by doctors other than defendant.” [Brooks at 145 AD3d atpp. 567,568]. The majority further resolved this issue of fact in accepting the defendants’ assertion by stating, “Even had Dr. April sought a differential diagnosis, there is no guarantee that plaintiffs AVM would have been detected, because Dr. April could have ordered only noninvasive testing, such as an MRI and MRA, and would still have met the accepted standard of medical care. There is no dispute that these tests— while sufficient to constitute “correct diagnostic procedures” and meet what is, according to plaintiffs' expert, the accepted standard of medical care— would not have detected the AVM.” [ Brooks at 145 AD3d at pp.568]. We submit that whether Ms. Keating Brooks AVM was “micro-occult” pre¬ bleed or difficult if not impossible to diagnose because of the presence of the hemorrhage (post-bleed) was a question of fact and under the law the majority in the court below was not to determine which opinion based upon the record was credible. Falk v. Goodman, 7 N.Y.2d 87 (1959). Further, there is no legal standard upon which a plaintiff in a medical malpractice action must guarantee a result in order to defeat summary judgment. The expert renders his or her opinion with a reasonable degree of medical certainty and this is sufficient. Both the Keating Brooks’ expert and her treating physicians believed that the underlying cause of the bleed (in this case an AVM) was hidden by the hemorrhage. The court below erred in resolving this matter in favor of the defendants relying on a rule of grammar to do so. We submit by determining these issues of fact in favor of the movant, the majority erred. As the dissent rightly concluded, “That plaintiffs' expert offers an opinion in the disjunctive, as the majority notes, does not change the result (“Dr. April deviated from the accepted standard of medical care in not ordering indicated tests . . . including cerebral MRI [magnetic resonance imaging test] and John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12,2018 Page 15 MRA [magnetic resonance angiogram] or ... conventional cerebral angiography”). On the contrary, the very point of plaintiffs' expert's opinion is that the failure to order any sort of test other than an EEG was part of defendants' failure to perform a differential diagnosis. [Brooks at p. 571]. The Appellate Division further erred in finding that the plaintiffs’ expert did not address the failure to specifically locate the AVM on the post-bleed studies finding the expert’s opinion to be conclusory. The majority in the court below stated, “Plaintiffs' expert's conclusory opinion that noninvasive testing would have led to an earlier diagnosis failed to address the opinion of defendants' expert (based on the noninvasive testing over the six- month period after plaintiff left defendant's care) that the MRI-occult AVM was not diagnosable by such testing.” [Brooks at 145 AD3d at p. 568], We submit that it was not the plaintiffs’ expert who offered a conclusory opinion on this matter but the court, once again, accepted the unexplained but apparent opinion of the defendants’ expert that the mere fact that the AVM was not diagnosed post-bleed, it could not have been diagnosed pre-bleed. The plaintiffs’ expert stated that it would have been seen pre-bleed if the correct tests had been ordered after a proper differential diagnosis made. The defendants’ expert never contradicts the plaintiffs’ expert and the treating physician who both stated the reason the AVM could not be seen was that it was hidden behind the hemorrhage and damage it had caused. The expert failed to do so, initially, though it was clearly his duty to do so, and did not refute it by explaining why this fact was for some reason not a fact in his reply affirmation when the opinion was spelled out directly in the plaintiffs’ opposition papers. In fact, in the Reply brief of the defendants they attacked this opinion by misrepresenting the affirmation of the plaintiffs’ expert’s opinion in a manner which, apparently, had an effect on the appellate court. First, the defendants’ stated that, “In any event, never once did Brooks’ expert advance Brooks’ current John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12,2018 Page 16 theory that the bleed itself rendered the AVM impossible to see. (1002-1021)” (April Brief at p. 2). This statement is misleading and factually untrue; the plaintiffs’ expert’s statement to this effect is quoted above and found explicitly in the record at p. 1017. They compounded this misleading narrative in the Reply submission and stated, “To the contrary, the conceded [Vc] that it takes mere “weeks” for the blood from a bleed to clear up and allow for non-invasive examination of the vessels of the area. (R 1007).” Rather than improperly spin the plaintiffs’ experts’ statement on p. 1007 of the record, we will quote it here for the court’s direct comparison. Defendants: “To the contrary, the conceded [sic] that it takes mere “weeks” for the blood from a bleed to clear up and allow for non-invasive examination of the vessels of the area. (R 1007).” (April Brief at p. 2). Plaintiffs’ Expert: “Additional studies were performed and Ms. Keating Brooks was advised to undergo further studies over several weeks allowing time for the resolution of hemorrhage as there was too much blood for definitive evaluation.” (R 1007). It is clear that the plaintiffs’ expert was relaying the medical history as to what physicians told the plaintiffs rather than making a medical determination that the hemorrhage, itself, would clear in “mere weeks.” To state otherwise, as done by the defendants only on reply, was unacceptable and should have been rejected by the appellate court. In fact, the MRI study performed on February 2, 2011 revealed the size of the hemorrhage had lessened but certainly not “cleared up.” (R 882). In contrast to the defendants twisting of the above quote, all the defendants’ expert did was repeat his view that it was micro-occult because it was not seen on the later films, which plaintiffs’ expert and the treating physician attribute to the location of the hemorrhage. No one claims that a CT scan would visualize an AVM. All it would show, according to this record, is a bleed. The fact that Dr. Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12, 2018 Page 17 April’s CT scan did not reveal that the bleed had not yet happened supports the plaintiffs’ damages claim and not any defense put forth by the defendants. The majority’s consistent course of deciding this matter by resolving all contested facts in favor of the movant is very much highlighted when reading the majority’s attempt to bootstrap David v. Hutchinson, 114 A.D.3d 412 (1 Dept. 2014) into the rationale for the majority’s decision in this matter. The majority was able to do this by finding, once again as a matter of law, that “...plaintiffs AVM was, at the time in question, an unindicated condition.” The majority found the AVM was an unindicated condition despite the plaintiffs’ expert’s averment, “It is my opinion with a reasonable degree of medical certainty; Ms. Keating Brooks experienced symptoms of her AVM pre-rupture. She experienced headache for over one month with a history of falling on two and possibly three separate occasions and severe continuing pain in one area of her head which worsened during the course of her treatment with Dr. April. In addition she experienced weakness, visual disturbances, confusion and cognitive changes.” [R 1020]. Most respectfully, “There is no basis on this record to afford more weight to defendants' expert's opinion and there are no ‘magic words’ which plaintiffs expert was required to utter to create an issue of fact. If anything, plaintiffs expert's opinion is entitled to more weight. Moreover, that opinion constituted an unmistakable rejection of defendants' expert's theory.” Linton v. Nawaz, 62 A.D.3d 434 (1 Dept. 2009), affd, 14 N.Y.3d 821 (2010). We submit that on multiple occasions the majority in the Appellate Division, First Department, engaged in issue determination and not issue finding resulting in an improper dismissal of the plaintiffs’ action. [Vega v. Restani Const. Corp., 18 N.Y.3d 499 (2012); Johnson v. City of New York, 15 N.Y.3d 676 (2010); Ferrante v. Am. Lung Ass'n, 90 N.Y.2d 623 (1997)]. Hon. John P. Asiello State of New York Court of Appeals APL-2017-00234 February 12,2018 Page 18 This Court has held that summary judgment is permitted only where one conclusion is properly drawn from a given set of facts. [Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308 (1980)]. Given the opposing expert affirmations, this case falls squarely outside of such matters. We submit that the violation of the long held decisional law of this Court by the Appellate Division requires a reversal of the order presently under appeal to this Court. Plaintiffs Consent to a Determination Pursuant to Rule 500.11 Based on the foregoing, plaintiffs submit this appeal need not be heard in the normal course of full briefing and oral argument and the Court should proceed directly to decide the merits of the appeal pursuant to Rule 500.11. Plaintiffs submit that based on the foregoing as well as the brief submitted by plaintiffs as Respondent in the Appellate Division, the Appellate Division order of October 24, 2017, should be reversed, the defendants' motions for summary judgment denied and plaintiffs Complaint reinstated. Respectfully submitted, Kelner and Kelnef Attorneys for Plaintiffs-Appellants LBy: Gerard K. Ryan, Jr.