Barbara Burns,, Appellant,v.Sudhir Goyal, et al., Defendants, Rakesh B. Patel, et al., Respondents.BriefN.Y.October 10, 2017To be Argued by: ANGELA A. CUTONE (Time Requested: 15 Minutes) New York Supreme Court Appellate Division—Second Department BARBARA BURNS, Individually and as Executrix of the Estate of THOMAS J. BURNS, Deceased, Plaintiff-Respondent, – against – SUDHIR GOYAL, M.D., SUFFOLK NEPHROLOGY ASSOCIATES, P.C. and NORTH SHORE LIJ SOUTHSIDE HOSPITAL, Defendants, – and – RAKESH B. PATEL, M.D., SUFFOLK HEART GROUP, LLP, MICHAEL TORELLI, M.D. and SOUTH SHORE FAMILY PRACTICE ASSOC., P.C., Defendants-Appellants. BRIEF FOR DEFENDANTS-APPELLANTS MICHAEL TORELLI, M.D. AND SOUTH SHORE FAMILY PRACTICE ASSOC., P.C. KELLER, O’REILLY & WATSON, P.C. Attorneys for Defendants-Appellants Michael Torelli, M.D. and South Shore Family Practice Assoc., P.C. 242 Crossways Park Drive West Woodbury, New York 11797 (516) 496-1919 Suffolk County Clerk’s Index No. 20115/10 Docket No.: 2014-11013 STATEMENT PURSUANT TO CPLR § 5531 New York Supreme Court Appellate Division—Second Department BARBARA BURNS, Individually and as Executrix of the Estate of THOMAS J. BURNS, Deceased, Plaintiff-Respondent, – against – SUDHIR GOYAL, M.D., SUFFOLK NEPHROLOGY ASSOCIATES, P.C. and NORTH SHORE LIJ SOUTHSIDE HOSPITAL, Defendants, – and – RAKESH B. PATEL, M.D., SUFFOLK HEART GROUP, LLP, MICHAEL TORELLI, M.D. and SOUTH SHORE FAMILY PRACTICE ASSOC., P.C., Defendants-Appellants. 1. The Index Number in the trial court is: 20115/10. 2. The full names of the original parties are as set forth above. There have been no changes. 3. The action was commenced in Supreme Court, Suffolk County. 4. The action was commenced by service of a summons and complaint. Defendants Michael Torelli, M.D. and South Shore Family Practice Associates, P.C. served a Verified Answer with Demands on or about September 20, 2010. Defendants Rakesh B. Patel, M.D. and Suffolk Heart Group, LLP served a Verified Answer with a Demand for a Verified Bill of Particulars on or about September 29, 2010. Defendants Sudhir Goyal, M.D. and Suffolk Nephrology Associates, P.C. served a Verified Answer on or about October 4, 2010. Defendant Southside Hospital s/h/a North Shore LIJ Southside Hospital served a Verified Answer on or about October 4, 2010. 5. The nature and object of the action is medical malpractice. 6. This is an appeal from an Order of the Honorable Jeffrey Arlen Spinner, J.S.C., dated July 23, 2014 and entered July 29, 2014, which denied the motion of defendants Dr. Torelli and South Shore Family Practice Assoc. along with the denial of other co-defendants’ motions. 7. This appeal is on a full reproduced record. i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 5 STATEMENT OF FACTS ........................................................................................ 7 LEGAL ARGUMENT ............................................................................................. 20 POINT I: DR. TORELLI AND SOUTH SHORE FAMILY PRACTICE HAVE ESTABLISHED THEIR PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT ......................................... 20 POINT II: DR. TORELLI AND SOUTH SHORE FAMILY PRACTICE DID NOT HAVE ANY DUTY TO TAKE ANY ACTION UPON RECEIPT OF DR. D’AGATE’S JUNE 2, 2008 LETTER......................................................................................................... 30 POINT III: DR. TORELLI AND SOUTH SHORE FAMILY PRACTICE DID NOT HAVE ANY DUTY TO PROVIDE ANY CLEARANCE FOR THE KIDNEY BIOPSY AND WERE NOT CALLED UPON TO PROVIDE ANY CLEARANCE ................................ 38 POINT IV: NO PROXIMATE CAUSE WAS ESTABLISHED BETWEEN THE ALLEGED DEPARTURES AND THE PATIENT’S ULTIMATE DEMISE .............................................................. 41 CONCLUSION ........................................................................................................ 46 ii TABLE OF AUTHORITIES Page(s) Cases: Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986) ..................................................... 44 Arkin v. Resnick, 68 A.D.3d 692, 890 N.Y.S.2d 95 (2d Dep’t 2009) ................................. 44, 45 Burtman v. Brown, 97 A.D.3d 156, 945 N.Y.S.2d 673 (1st Dep’t 2012) ......................... 33, 34, 35 Cahill v. County of Westchester, 226 A.D.2d 571, 641 N.Y.S.2d 346 (2d Dep’t 1996) ............................. 44-45 Carroll v. St. Anthony’s High Sch., 226 A.D.2d 415, 640 N.Y.S.2d 794 (2d Dep’t 1996) ................................... 45 Domaradzki v. Glen Cove OB/Gyn Assocs., 242 A.D.2d 282, 660 N.Y.S.2d 739 (2d Dep’t 1997) ................................... 45 Furey v. Kraft, 27 A.D.3d 416, 812 N.Y.S.2d 590 (2d Dep’t 2006), appeal denied, 7 N.Y.3d 703, 819 N.Y.S.2d 869 (2006) ................................................. 36, 45 Huffman v. Linkow Institute for Advanced Implantology, Reconstructive and Aesthetic Maxillo-Facial Surgery, 35 A.D.3d 214, 826 N.Y.S.2d 229 (1st Dep’t 2006) ..................................... 35 Koeppel v. Park, 228 A.D.2d 288, 644 N.Y.S.2d 210 (1st Dep’t 1996) ................................... 34 Lifshitz v. Beth Israel Med. Ctr-Kings Highway Div., 7 A.D.3d 759, 776 N.Y.S.2d 907 (2d Dep’t 2004) ....................................... 45 Markley v. Albany Medical Center Hosp., 163 A.D.2d 639, 558 N.Y.S.2d 688 (3d Dep’t 1990) ................................... 34 Rebozo v. Wilen, 41 A.D.3d 457, 838 N.Y.S.2d 121 (2d Dep’t 2007) ............................... 27, 29 Ross v. Braverman, 44 A.D.3d 923, 845 N.Y.S.2d 359 (2d Dep’t 2007) ..................................... 41 iii Terranova v. Finklea, 45 A.D.3d 572, 845 N.Y.S.2d 389 (2d Dep’t 2007) ..................................... 27 Thompson v. Orner, 36 A.D.3d 791, 828 N.Y.S.2d 509 (2d Dep’t 2007) ..................................... 36 Wasserman v. Staten Island Radiological Associates, 2 A.D.3d 713, 770 N.Y.S.2d 108 (2d Dep’t 2003) ................................. 34, 35 Wilson v. Buffa, 294 A.D.2d 357, 741 N.Y.S.2d 713 (2d Dep’t 2002), appeal denied, 98 N.Y.2d 611, 749 N.Y.S.2d 3 (2002) ......................................................... 41 Yasin v. Manhattan Eye, Ear & Throat Hospital, 254 A.D.2d 281, 678 N.Y.S.2d 112 (2d Dep’t 1998) ............................. 41-42 1 PRELIMINARY STATEMENT Defendant-Appellant, Michael Torelli, M.D. (“Dr. Torelli”) and South Shore Family Practice Associates, P.C., (“South Shore Family Practice”) appeal from the Order of the Supreme Court of the State of New York, Suffolk County, dated July 23, 2014 and entered July 29, 2014 of Justice Jeffrey Arlen Spinner. The Order denied Dr. Torelli’s and South Shore Family Practice’s motion for summary judgment. The within action sounds in medical malpractice. Plaintiff, Barbara Burns, commenced this action on behalf of plaintiff’s decedent, for alleged acts of malpractice occurring June 4, 2008 through June 7, 2008, which includes a failure to properly monitor the decedent’s prescribed drugs and improperly stopping decedent’s prescription drug regimen prior to an intended kidney biopsy. Specifically, plaintiff is claiming that the decedent’s antiplatelet medications were improperly suspended prior to a renal biopsy and were not resumed even though the biopsy was not performed. As a result, plaintiff claims Thomas Burns, the then 53 year-old decedent, was caused to suffer a heart attack and untimely death at Southside Hospital on June 7, 2008. In April of 2008, the patient had lab work which showed an elevated BUN and acute renal failure. Dr. Torelli sent the patient stat to Dr. Goyal, a 2 nephrologist, who was to determine a plan of care. Dr. Goyal, the decedent’s nephrologist, recommended and planned for a kidney biopsy in May of 2008. Dr. Goyal told the patient he needed to speak with his cardiologist prior to undergoing the biopsy as the kidney is fragile and there is a risk of very heavy bleeding. The patient never spoke with his cardiologist and on May 29, 2008, Dr. Goyal contacted and spoke with Dr. D’Agate, a cardioloigst at Suffolk Heart Group, L.L.P, to discuss the patient’s antiplatelet medications. Dr. Goyal and Dr. D’Agate also discussed the patient’s overall clinical condition in this phone call which was stable. Dr. D’Agate testified he told Dr. Goyal it was safe to hold the antiplatelet therapy prior to undergoing the renal biopsy but the patient should have prompt reinitiation of the platelet agent after the procedure. The biopsy was scheduled for June 6, 2008 at Good Samaritan Hospital. The Hospital contacts the patient to tell the patient what is needed prior to the biopsy. The patient discontinued taking antiplatelet medications in advance of the intended biopsy. The biopsy was cancelled for insurance reasons and the patient expired on June 7, 2008. Dr. Torelli and South Shore Family Practice last saw the patient April 16, 2008, some 4 months prior to his demise. They did not see the patient from June 4, 2008 to June 7, 2008. They did not cancel or suspend the patient’s cardiology 3 medications. They did not discuss or talk to the patient about the proposed kidney biopsy or antiplatelet medications prior to the proposed biopsy. Dr. Torelli and South Shore Family Practice had nothing to do with the planning or scheduling of the biopsy and did not recommend the biopsy. Dr. Torelli and South Shore Family were not asked and did not provide any clearance for the patient in anticipation of the kidney biopsy. Dr. Torelli and South Shore Family Practice had nothing to do with the suspension of antiplatelet medications or reinstatement of the medications. Dr. D’Agate did not discuss the suspension or change of the patient’s antiplatelet medications with Dr. Torelli or anyone from South Shore Family Practice. The only information Dr. Torelli and South Shore Family Practice received about the antiplatelet medications and the intended biopsy was a letter Dr. D’Agate sent to Dr. Torelli. As part of custom and practice, Dr. D’Agate addressed the letter to the family physician, also copying the nephrologist, Dr. Goyal, on the letter about the proposed suspension and resumption of antiplatelet medications. Upon receipt of the letter, neither Dr. Torelli nor South Shore Family Practice had any duty to oversee or supervise the directives imposed by other specialists. Dr. Torelli and South Shore Family Practice would not be in a position to question or change the medication therapy outlined by the specialists and they 4 would not have any duty to contact the patient about antiplatelet medications prescribed and monitored by the other specialists. Moreover, even if there was a duty imposed upon Dr. Torelli and South Shore Family Practice, there was no proximate cause established between the alleged departures and the death of the patient. It is respectfully submitted that the lower court erred in denying Dr. Torelli and South Shore Family Practice’s motion for summary judgment. 5 QUESTIONS PRESENTED 1) Did the lower court err in denying the summary judgment motion of Dr. Torelli and South Shore Family Practice when these defendants presented a prima facie showing of entitlement to summary judgment through the use of depositions, medical records, a medical expert affirmation and all evidence submitted in the Record? 2) It is respectfully submitted that this question should be answered in the affirmative. 3) Did the lower court err in denying the summary judgment motion of Dr. Torelli and South Shore Family Practice when these defendants did not have any role in the kidney biopsy or the suspension and reinstatement of antiplatelet medications and had no duty to supervise the actions and decisions of the specialists handling these issues? 4) It is respectfully submitted that this question should be answered in the affirmative. 6 5) Did the lower court err in imposing a duty upon Dr. Torelli and South Shore Family Practice to provide medical clearance for a kidney biopsy when none existed? 6) It is respectfully submitted that this question should be answered in the affirmative. 7) Did the lower court err in denying the summary judgment motion of Dr. Torelli and South Shore Family Practice when plaintiff did not establish proximate cause from the alleged departures to the decedent’s demise? 8) It is respectfully submitted that this question should be answered in the affirmative 7 STATEMENT OF FACTS Dr. Torelli formed a practice with Dr. Walsh known as South Shore Family Practice in September of 1998. (R. 831-832). Thomas Burns, now deceased, first treated with Dr. Walsh at South Shore Family Practice on April 22, 1999 for hypertension. (R. 831-832). He was examined, an EKG was done, he was given a lab slip for tests and a prescription for Ziac, a blood pressure medicine. (R. 832). On February 14, 2000, the patient was seen at South Shore Family Practice for a blood pressure check and medication refills. (R. 834). On February 28, 2000, Mr. Burns returned for blood work and cholesterol medicine. (R. 836-837). The impression was: elevated cholesterol and elevated calcium. (R. 836). The plan was for a repeat of the calcium, a metabolic panel and dietary counseling. (R. 837). On February 29, 2000, the patient returned for dietary counseling. (R. 837). On April 10, 2000, the patient came in for fasting blood work, urine, a follow up for blood pressure and for pain in the left Achilles area.. (R. 838). He was on Ziac 2.5mg at this time. (R. 838). There was a referral to Dr. LaRosa, a vascular surgeon, to rule out peripheral vascular disease. (R. 839). On April 21, 2000, the patient returned for blood test results and had been seen by vascular. (R. 840). The impression was: vascular insufficiency, elevated cholesterol and hypertension. (R. 840-841). The plan was Lipitor 10 milligrams and to return in 8 one month. (R. 841). On August 15, 2000, the patient returned for a blood pressure check and a Ziac prescription. (R. 842). The impression was: hypertension, questionable carotid stenosis and elevated cholesterol. (R. 842). The patient saw Dr. Walsh on January 9, 2001 and again on November 15, 2001. As of November 15, 2001, the impression was: hypertension and elevated cholesterol. (R. 843-845). The patient returned June 2, 2002 and July 22, 2002 for hypertension and elevated cholesterol. (R. 845-846). Sometime in October of 2003, Thomas Burns suffered an acute anterior wall myocardial infarction while with the kids on a playing field. (R. 510-511). He was taken to Southside Hospital where Dr. Patel, a cardiologist, performed an angioplasty with the placement of multiple stents in the left anterior descending artery. (R. 510-512). It was discovered that Mr. Burns’ right coronary artery was 100% blocked/occluded and he had significant coronary artery disease. (R. 513). Dr. Patel put the patient on Aspirin, Plavix, beta blockers and eventually ACE inhibitors and statins. (R. 516). Dr. Patel believed the blockage in his heart was probably related to his age, his being overweight, his smoking and his very high cholesterol. (R. 518). Following his discharge from Southside Hospital, Mr. Burns saw Dr. Patel on October 21, 2003. (R. 519). His ejection fraction was 45%-50% below the 9 normal of 60%. (R. 521, 522). At this time, Mr. Burns was taking Aspirin, Plavix, Toprol, Ramipril, Zetia, Zocor and Imdur. (R. 524). Mr. Burns returned to Dr. Patel on November 10, 2003 and was given a Holter moniter. (R. 530-531). The results were near normal. (R. 531). On November 18, 2003, Mr. Burns again saw Dr. Patel and the same medications were continued. (R. 532-533). On December 1, 2003, Mr. Burns returned to Dr. Patel and an echocardiogram was performed revealing an ejection fraction of 50-55%. (R. 535-536). A nuclear cardiogram revealed the presence of a heart attack in the right coronary artery distribution with the ejection fraction at around 49%. (R. 536-537). On December 9, 2003, the patient returned to Dr. Patel and the medical plan included: medical therapy with beta blockers, ace inhibitors, aspirin, Plavix, statins and instructions to cease smoking. (R. 537-539). On July 27, 2004, Mr. Burns saw Dr. Patel and complained of swelling in the feet. Dr. Patel examined the feet, recommended some tests and prescribed a diuretic, HCTZ, 25 milligrams. (R. 546-547). On May 23, 2005, the patient was seen at Dr. Patel’s offices and the recommendation was for the patient to undergo a repeat cardiac catheterization at North Shore Hospital. (R. 558-559). On May 26, 2005, the cardiac catheterization was performed and additional stents were placed. (R. 559-560). There was blood drawn on March 21, 2006 with lab results showing 10 possible early onset diabetes. (R. 566-567). After an approximate four year absence, Mr. Burns returned to South Shore Family Practice on July 6, 2006 with a history of a myocardial infarction and angioplasty with stents by Dr. Patel. (R. 847). The patient had been given numerous medications by his cardiologists. (R. 852). On July 6, 2006, the patient was to have blood work taken for cholesterol, liver function, prostate and a blood count. (R. 852). On August 31, 2006, he returned to South Shore Family Practice for a complaint of wrist and elbow pain. The plan included x-rays, a CBC, a sed rate, rheumatoid factor, ANA, Lyme and an SMA-20. (R. 853-854). On September 13, 2006, the patient had a follow up for blood tests. (R. 854). There was no indication the x-rays were taken. (R. 854). The diagnosis was: elevated glucose, wrist pain, poly arthralgia and hemoglobin A1C was ordered. (R. 855). The plan included: additional rheumatologic blood work, antidouble stranded DNA, SED and ANA with an instruction to see Dr. Ramore, a rheumatologist. (R. 855). Dr. Torelli testified that the patient had seen Dr. Ramore who sent a report of the consultation to Dr. Torelli. (R. 856). On March 12, 2007, the patient was seen by Dr. Walsh for a refill of medications. (R. 855, 865). On February 28, 2008, the patient was seen at South Shore Family Practice 11 for a renewal of medications and a complaint of right-sided groin pain. (R. 865, 866). The patient at this point was smoking one and one half packs per day. (R. 867). Dr. Torelli performed a focused exam and found that the patient had a right inguinal hernia. (R. 866-867). The diagnosis included: hypertension, elevated cholesterol, coronary artery disease and smoking. (R. 865, 866, 867). The patient was instructed to stop smoking and was referred to Dr. Wodicka, a vascular surgeon, for treatment of the hernia. (R. 867, 868). On March 5, 2008, Dr. Wodicka saw the patient and recommended a laproscopic procedure be performed, requiring cardiac clearance. (R. 1641, 1642). On March 7, 2008, the patient returned to South Shore Family Practice for a follow up of his hernia. He had been seen by Dr. Wodicka and the notes from South Shore Family Practice refer to a questionable triple hernia, bilateral, inguinal and ventral. The patient had a hematuria, elevated BUN and creatinine, hypertension and anemia. (R. 869, 870). Dr. Torelli was working up his lab abnormalities and ordered an abdominal and pelvic sonogram. (R. 870-871). On March 13, 2008, the patient underwent an abdominal and pelvic sonogram at BAB Radiology revealing findings that could represent an intrinsic gallbladder mass. (R. 871). The pelvic ultrasound was a negative study. (R. 871). On March 18, 2008, the patient returned to South Shore Family Practice and the sonogram results were 12 reviewed. The plan was for the patient to stop smoking, return to Dr. Wodicka for surgical evaluation, and to take a copy of the sonogram films with him. The patient was also referred for a HIDA scan. (R. 872-874). On March 25, 2008, Dr. Patel, cardiologist, saw the patient for pre-operative clearance to undergo Dr. Wodicka’s proposed hernia repair procedure. (R. 570, 571, 572). The patient had not been seen by Dr. Patel for two years. (R. 568, 569). Dr. Patel found the patient could perform all activities of daily living, including climbing two flights of stairs on a daily basis without complaints of chest discomfort. (R. 570). Dr. Patel found no cardiac complications to do the hernia operation and cleared him for that procedure. (R. 570). Dr. Patel advised the patient to continue all medications except for Plavix which was to be held for a few days pre-operatively. (R. 570-573). Dr. Patel testified Plavix could be stopped as much as 5 days before the surgery and was to be resumed post-operatively whenever the surgeon performing the procedure felt it was safe to do so. (R. 571- 573). Dr. Patel wrote a letter dated March 25, 2008, which states that if Plavix needs to be held for a few days prior to the surgery this will be safe, however, it should be resumed post-surgery. (R. 2715-2716). On March 26, 2008, Mr. Burns went to see Dr. Wodicka to evaluate the right inguinal hernia. (R. 1641). Dr. Wodicka discussed the laparoscopic mesh repair 13 procedure which was to be scheduled at the next available time/date at Southside Hospital and which required medical and cardiac clearance. (R. 1640, 1641). On April 8, 2008, the patient saw Dr. Torelli for a work up for his hernia surgery. (R 874-875). Pre-operative testing was done at Southside Hospital and the lab work results showed elevated creatinine levels with a possible worsening kidney function and acute renal failure. (R. 875). Accordingly, the hernia operation was postponed and Dr. Torelli sent the patient stat to Dr. Goyal, a nephrologist. (R. 876). On April 9, 2008, Mr. Burns saw Dr. Goyal. The patient had been smoking a pack and a half a day of cigarettes until a week prior. (R. 396, 397). At this visit, Dr. Goyal performed an exam. The patient was 218 lbs., his pulse was 72 and his blood pressure was 130/70. (R. 397). Dr. Goyal spoke with Dr. Torelli about the patient’s creatinine levels and learned that the kidneys had gotten worse over the past year. (R. 400-401). The patient’s urinalysis showed protein 500 plus which was very abnormal. Mr. Burns also had a small amount of blood in his urine. (R. 401). Dr. Goyal believed the patient’s acute renal failure over the past year may have been secondary to medications such as Altace, HCTZ and Crestor. (R. 403). Dr. Goyal’s plan was to change the patient’s Crestor for Lipitor, to stop the Altace and start Hydralazine and he advised the patient to check with the cardiologist 14 about the HCTZ. (R. 403-404). Dr. Goyal discussed his change of medications with Dr. Torelli. (R. 404). Dr. Goyal also ordered a 24 hour urine for total protein and creatinine clearance. (R. 404). He also ordered an ESR and ANA. (R. 404- 405). The ANA result was very high. The test results indicated activity of lupus. (R. 409). The urine protein test results came back very high and showed the patient was leaking 23 grams of protein in 24 hours. This indicated there was something very wrong with the kidneys. (R. 410). On April 16, 2008, Dr. Torelli saw the patient noting the patient had been seen by a renal physician. (R. 877). Dr. Torelli’s diagnosis was: renal failure, hypertension, elevated cholesterol and microhematuria or blood in the urine. (R. 877). Dr. Torelli ordered repeat labs and the patient was to return in two weeks. (R. 877, 878). This is the last time Dr. Torelli or South Shore Family Practice saw the patient prior to his death. On April 25, 2008, the patient returned to Dr. Goyal feeling better but with complaints of swelling in the feet. (R. 410-411). Dr. Goyal’s impression was acute renal failure and nephrotic syndrome. (R. 412). Dr. Goyal also noted systemic lupus erythematous and edema. (R. 412). Dr. Goyal’s treatment plan was to stop the Hydralazine which was for high blood pressure and replace it with 15 Cardizem. Dr. Goyal did not speak to a cardiologist about this change of medication. (R. 413). Dr. Goyal also gave the patient Lasix, 40mg for edema and ordered tests. (R. 413-414; 2699). The patient was to return in 10 days. (R. 410, 413, 414). The patient returned to Dr. Goyal on May 5, 2008 to discuss the test results. (R. 415, 417). Dr. Goyal expected the Lasix to start working the next day but there was no change in Mr. Burns’ condition. (R. 417, 418). Dr. Goyal’s impression was that the most likely cause of the kidney failure was lupus. Dr. Goyal told the patient there was no way he could treat him without a biopsy because the drugs which were required, could be toxic. (R. 424). Accordingly, the biopsy had to be performed and there were no other procedures available. (R. 424). Dr. Goyal discussed with Mr. Burns the need for cardiac clearance, the risks of a kidney biopsy, including the risk of bleeding because the patient was taking antiplatelet drugs. (R. 419, 421-424). Dr. Goyal expected the patient to check with his cardiologists about stopping the antiplatelet drugs prior to the biopsy. (R. 423). Dr. Goyal considered the patient’s kidney condition to be very significant and expected the patient to return in one month with cardiac clearance and a decision about whether or not to proceed with the biopsy. (R. 426, 427). On May 18, 2008, Mr. Burns was seen at Southside Hospital emergency 16 room for an injury to his right foot. He had stepped on a metal rake with his right foot. (R. 2160). He was noted to have sustained a puncture wound to the foot and was instructed to follow up with Dr. William Hernandez. (R. 2162). On May 29, 2008, the patient returned to see Dr. Goyal who noted the medications were not working and the patient was in need of a kidney biopsy. (R. 427, 428). However, the patient had not seen his cardiologists and still needed cardiac clearance to stop the antiplatelets. (R. 428, 429). Dr. Goyal contacted Dr. Patel’s (the cardiologist) office. Dr. Patel was not in and Dr. Goyal spoke with Dr. D’Agate, a cardiologist at the Suffolk Heart Group, LLP about the cardiac clearance and the antiplatelet medications. (R. 429, 430). Dr. Goyal recalls that Mr. Burns was present for the conversation with Dr. D’Agate. (R. 429). During that conversation, Dr. D’Agate reviewed the clinical status of the patient with Dr. Goyal and reviewed Dr. Patel’s March 25, 2008 letter (providing a hold of antiplatelets prior to the hernia surgery). Dr. D’Agate testified that there were no new symptoms, no new cardiovascular issues and, according to his discussion with Dr. Goyal, the patient was cardiac stable. (R. 1552-1556). Dr. D’Agate testified he told Dr. Goyal it was safe to hold the antiplatelet therapy prior to undergoing the renal biopsy but the patient should have prompt reinitiation of 17 the platelet agent after the procedure. (R. 1541, 1542). 1 Dr. D’Agate sent a letter dated June 2, 2008, about his phone conversation with Dr. Goyal which as a matter of custom and practice was addressed to the primary care doctor, Dr. Torelli, and was copied to Dr. Goyal. (R. 1538-1541). The June 2, 2008 letter states that it is safe to hold antiplatelet therapy prior to undergoing the renal biopsy but the patient should have prompt reinitiation of the platelet agent post-operatively. (R. 1541-1542). Dr. D’Agate did not speak to Dr. Torelli about the patient, the letter or about antiplatelet agents. (R. 1538). Dr. Torelli was not involved at all in the decisions made to hold or restart the antiplatelet medications. Dr. D’Agate testified that the person performing the kidney biopsy, the proceduralist, would be the individual responsible for advising the patient when it was safe to restart antiplatelet agents and this is discussed on a case-by-case basis. (R. 1542-1543). No one spoke with Dr. D’Agate about reinitiation of the antiplatelet therapy. (R. 1542-1543). Dr. Patel also testified that the person performing the procedure, the kidney 1 Dr. D’Agate testified he only told Dr. Goyal to hold the Plavix. The aspirin was to be continued. (R. 1551). However, Dr. Goyal testified he prepared an Addendum which indicated he discussed the patient with Dr. D’Agate who agreed the patient should be kept off antiplatelet drugs in order to perform the kidney biopsy. Dr. Goyal’s Addendum states that both: “Plavix/aspirin can be held for 10 to 12 days” and “restart second or third day after biopsy.” (R. 429-430). 18 biopsy, would decide when to reinitialize the drugs. (R. 576). Dr. Patel explained that if antiplatelets were withheld, what would typically occur is that the hospital performing the biopsy would call Dr. Patel’s office and request that Dr. Patel come by to evaluate the patient and determine if the antiplatelets could be restarted. (R. 577-578). A prescription from Dr. Goyal’s office dated June 3, 2008 ordered a CT scan-guided renal biopsy. (R. 2683). When Dr. Goyal’s office plans for a renal biopsy, the office orders the biopsy at Good Samaritan Hospital. (R. 437). The hospital requests the patient’s history, phone number and contacts the patient for blood tests prior to the biopsy. (R. 437). Once Dr. Goyal and/or his office requests a biopsy, the hospital arranges everything. (R. 438). After the biopsy is completed at the hospital, the hospital typically calls Dr. Goyal’s office with the results. (R. 444). Mrs. Burns testified the renal biopsy was scheduled for June 6, 2008. (R. 202). However, the renal biopsy did not go forward on June 6, 2008, according to Mrs. Burns, as preauthorization was required by Mr. Burns’ insurance. (R. 202). Mrs. Burns testified that her husband stopped taking all of his medications three days prior to the kidney biopsy. (R. 256). The evening of June 7, 2008, the patient collapsed at home, an ambulance 19 was called and he was transported to Southside Hospital. (R. 204-207). Upon his arrival, he had no palpable pulse, no measurable blood pressure. His eyes did not open, he made no sounds and had no movements. The nurse serving as the code recorder noted he was in cardiac arrest, comatose, cyanotic, no heart sounds, no BP, no signs of trauma. He was on EMS defibrillator x 3, CPR was continued on arrival at 5:12, IVs were placed, medications were administered and he was pronounced dead at 5:18pm. (R.2127-2129). Southside Hospital transferred the patient to Long Island Jewish Medical Center where an autopsy was performed. (R. 2139-2153). The preliminary autopsy findings based upon dissection and organ review were reported on June 12, 2008. The final Addendum Report was dated August 9, 2008 and issued after pathology was reviewed. A 90% occlusion was found in the circumflex artery and the cause of death was said to be cardiac arrest secondary to coronary artery disease. (R. 2143-2153). 20 LEGAL ARGUMENT POINT I: DR. TORELLI AND SOUTH SHORE FAMILY PRACTICE HAVE ESTABLISHED THEIR PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT In support of the underlying motion, Dr. Torelli and South Shore Family Practice demonstrated their entitlement to summary judgment by submitting the depositions of the parties, the medical records of the defendants2 and an affirmation of an internal medicine physician, Dr. Vincent Garbitelli. Plaintiff’s medical malpractice claims as set forth in the Bill of Particulars and plaintiff’s expert affirmation are limited to issues concerning the suspension and reinstitution of the antiplatelet medications. (R. 106, 2736, 2737). The Bill of Particulars for Dr. Torelli and South Shore Family Practice limits the dates of medical malpractice from June 4, 2008 to June 7, 2008 and sets forth the following allegations: failing to properly continue decedent’s prescription drug regimen; improperly stopping decedent’s prescription drug regimen; failing to prevent decedent’s heart attack; failing to anticipate and prevent decedent’s heart attack; and failing to anticipate the dangers associated with decedent’s prescription drug 2 The court’s decision below refers to the submission of medical records by these parties in uncertified form. However, a review of the entire record below reveals that the following certified medical records were submitted to the court for review: South Shore Family Practice/Dr. Torelli (R. 902); Suffolk Nephrology Associates (R. 1685); and Southside Hospital (R. 1725). 21 regimen and subsequent failure to restart decedent’s prescription drug regimen. (R. 106-107). Plaintiff’s expert, Dr. Charash, raises two departures against Dr. Torelli and South Shore Family Practice: the failure to act upon receiving Dr. D’Agate’s letter that contained information concerning suspension of antiplatelet therapy prior to the renal biopsy and the failure to provide medical clearance for the intended kidney biopsy which had been scheduled to take place June 6, 2008. (R. 2683, 2736, 2737). The record below clearly establishes that Dr. Torelli and South Shore Family Practice did not see plaintiff during this time, did not prescribe, suspend or otherwise instruct/advise plaintiff regarding his antiplatelet medications and was not involved in the pre-surgical measures needed for the kidney biopsy. Dr. Garbitelli’s affirmation in support of the underlying motion specifically addresses the issues raised by plaintiff. (R. 1646-1655). The undisputed facts and record below clearly establish that Dr. Torelli had no involvement with these issues. On April 8, 2008, upon receiving lab work indicative of kidney failure, Dr. Torelli referred plaintiff stat to Dr. Goyal, a nephrologist, to perform all tests and all work up regarding the kidney failure. (R. 876-877). The last visit Mr. Burns had with Dr. Torelli and/or South Shore Family Practice prior to his death was April 16, 2008. (R. 877, 878). 22 Dr. Goyal, the nephrologist, attempted to resolve the renal failure with medications. When the medications did not work, Dr. Goyal advised the patient on May 5, 2008, it was medically necessary for the patient to have a kidney biopsy. (R. 426, 427). Dr. Goyal’s impression was that the most likely cause of the kidney failure was lupus. (R. 424). Dr. Goyal told the patient there was no way he could treat him without a biopsy because the drugs which were required, could be toxic. (R. 424). Accordingly, the biopsy had to be performed and there were no other procedures available. (R. 424). In order to proceed with the biopsy, antiplatelet medication needed to be suspended due to the risk of bleeding. (R. 419, 421-424). Dr. Goyal did not discuss the intended biopsy with Dr. Torelli or South Shore Family Practice. Dr. Goyal took all necessary steps pre-operatively for the kidney biopsy. Dr. Goyal instructed the patient to get in touch with his cardiologists about suspension of the antiplatelet therapy but the patient did not. (R. 423). Therefore, on May 29, 2008, when the patient presented to Dr. Goyal for a follow up and to schedule his kidney biopsy, Dr. Goyal called the cardiologist’s office and spoke with Dr. D’Agate. (R. 423-430). Dr. D’Agate made recommendations and indicated it was safe to hold the antiplatelets prior to the kidney biopsy, but the patient should have prompt reinitiation of the antiplatelets after the biopsy. (R. 23 1541-1542). The patient stopped taking the antiplatelets, the biopsy never took place due to an insurance issue and the patient expired on June 7, 2008. (R. 202, 256; 204-207). At no time did Dr. D’Agate or anyone contact Dr. Torelli or South Shore Family Practice to discuss antiplatelet medications or to perform any type of medical clearance for the renal biopsy. (R. 429, 430, 1538). The only reason Dr. Torelli and/or South Shore Family Practice was made aware of plaintiff’s suspension of antiplatelet medications was through a letter sent by Dr. D’Agate. (R. 1541-1542). The only reason Dr. Torelli’s office was sent the letter is because Dr. D’Agate, as a matter of custom and practice, would direct the letter to the primary care physician. (R. 1538-1541). We do not even know when Dr. Torelli or South Shore Family Practice received this letter dated June 2, 2008 or if it was received prior to the patient’s death which was June 7, 2008. (R. 880, 881, 949). The letter by Dr. D’Agate states: “it is safe to hold antiplatelet therapy prior to undergoing the renal biopsy, however, he should have prompt reinitiation of the antiplatelet agent. The patient should continue with Toprol and Altace on the day of surgery.” (R. 949). The letter does not provide a specific date for when to stop or resume the medications and nothing in the letter requests Dr. Torelli or South Shore Family Practice to call the specialists or the patient. Also, there is nothing in 24 that letter to inform Dr. Torelli or South Shore when the biopsy was scheduled or where it was taking place. (R. 949). More importantly, there was no request that Dr. Torelli participate in the plan to hold antiplatelets as those decisions were solely at the discretion of the specialists treating Mr. Burns. The patient died of coronary artery disease according to the autopsy report. (R. 2143-2153). Plaintiff’s expert claims that Mr. Burns either should not have been off the antiplatelet therapy or that antiplatelet therapy should have been resumed when the biopsy never took place. (R. 2736-2737). Dr. Vincent Garbitelli’s affirmation utilized in support of Dr. Torelli and South Shore Family Practice’s motion is very specific and addresses all of the medical malpractice issues in this case raised by plaintiff. (R. 1646-1655). Dr. Garbitelli affirms that he reviewed the depositions of the parties, the medical records of Dr. Torelli and South Shore Family Practice as well as the other defendants’ records. Dr. Garbitelli goes through all of the treatment by Dr. Torelli and South Shore Family Practice. (R. 1646-1655). Dr. Garbitelli states that Dr. Torelli properly referred the patient to Dr. Goyal, a nephrologist, in April of 2008 based upon problematic test results indicating worsening kidney failure. (R. 1650, 1651). Dr. Garbitelli also states that the patient presented to the nephrologist on April 9, 2008 and a urinalysis was done showing blood in the urine and large 25 amounts of protein. Dr. Goyal adjusted the medications and the patient returned to South Shore Family Practice on April 16, 2008. (R. 1651). Dr. Garbitelli noted that an appropriate assessment was made, with appropriate orders for repeat lab work and instructions to follow up with South Shore Family Practice. (R. 1651). The patient then returned to Dr. Goyal on April 25, 2008 to discuss lab test results and again in May of 2008. Dr. Goyal planned for a renal biopsy. (R. 1652). Dr. Garbitelli’s affirmation further states that Dr. Goyal contacted the patient’s cardiology office and spoke with Dr. D’Agate in order to discuss the antiplatelet medications and the suspension and resumption of same. Dr. D’Agate memorialized the instructions concerning antiplatelets in a letter. As per Dr. D’Agate’s standard practice, he addressed the letter to the patient’s internal medicine physician and copied the specialist, Dr. Goyal. (R. 1652). Dr. Garbitelli noted that Dr. Goyal, after discussing the intended renal biopsy with the cardiologist, then discussed the biopsy with the patient. No one discussed the proposed kidney biopsy or intended renal biopsy with Dr. Torelli or South Shore Family Practice. Dr. Garbitelli states that even if they had, it would have been appropriate to defer to the instructions and medication instructions given by the patient’s specialists, including his nephrologist and cardiologists. (R. 1646- 1655). As such, Dr. Garbitelli states, to a reasonable degree of medical certainty, 26 that Dr. Torelli and South Shore Family Practice had rendered care and treatment to the patient in accordance with good and acceptable medical practice. (R. 1653). Dr. Garbitelli states that there is absolutely no evidence that Dr. Torelli and/or South Shore Family Practice had any involvement in preparing for the renal biopsy, the scheduling of the biopsy and the suspension/resumption of medications. (R. 1653). The depositions of the parties confirm that no one contacted Dr. Torelli or South Shore Family Practice for medical clearance or for instructions regarding the antiplatelets. Dr. Goyal, who determined the renal biopsy was absolutely necessary, took the pre-procedure steps to make sure the biopsy could take place. Accordingly, Dr. Torelli and South Shore Family Practice were not asked to and were not at all involved in the issues raised by plaintiff in the Bill of Particulars and raised by plaintiff’s expert. Dr. Garbitelli sufficiently states that had these parties been asked to comment, they would have appropriately deferred to the cardiologist and nephrologist. (R. 1653). Therefore, Dr. Garbitelli’s affirmation speaks directly to the medical malpractice issues raised by plaintiff and contains ample detail to support these parties’ entitlement to summary judgment. A moving defendant should address and rebut the factual allegations in the complaint and Bill of Particulars. Terranova v. Finklea, 45 A.D.3d 572, 845 27 N.Y.S.2d 389, 390 (2d Dep’t 2007). A moving party can establish a prima facie case of summary judgment through a physician’s medical affirmation, medical records and deposition testimony to show that defendant did not depart from good and accepted medical practice. Rebozo v. Wilen, 41 A.D.3d 457, 838 N.Y.S.2d 121 (2d Dep’t 2007). Dr. Garbitelli sufficiently details all of the treatment by Dr. Torelli and South Shore Family Practice. He further affirms that none of these defendants suspended the antiplatelets, were involved in the discussions to suspend/resume antiplatelets and were not involved in the preoperative measures or medical clearance for the kidney biopsy. Furthermore, Dr. Garbitelli explains that these parties would necessarily have had to defer to the specialists with respect to the antiplatelet therapy. The court below in its decision improperly concludes that Dr. Garbitelli’s affirmation is not sufficient to make out a prima facie case. The court’s decision below states as follows: Dr. Garbitelli does not indicate what medications, if any, were prescribed by Dr. Torelli, for what conditions he was treating the decedent, whether or not any of the findings upon examination and whether proper diagnostic testing was being provided to the decedent’s acute renal failure, his findings upon examination, and whether proper diagnostic testing was being provided to the decedent and the results of such testing. Dr. Garbitelli does not indicate whether or not Dr. Torelli provided medical clearance for the renal 28 biopsy or whether he was involved in coordinating care and ordering medications. Dr. Garbitelli does not discuss the letter of June 2, 2008 sent by Dr. D’Agate to Dr. Torrelli, and what, if anything Dr. Torelli did in response to said letter. Dr. Garbitelli does not indicate the cause of the decedent’s death to support his opinion that there is nothing that the South Shore defendants did or did not do during their care and treatment of the decedent which proximately caused the decedent’s death. Dr. Garbitelli does not discuss the cause of death set forth in the autopsy report, namely coronary artery disease, and does not discuss or opine with regard to this disease and any care and treatment provided by Dr. Torelli and South Shore Family Associates relative thereto, raising factual issues which preclude summary judgment. (R. 16-17). The medications prescribed by Dr. Torelli and South Shore Family Practice are not at issue in this case. The Bill of Particulars and plaintiff’s expert do not raise this as a medical malpractice claim. The undisputed facts in the record show that Dr. Goyal, the nephrologist, was handling all of the testing, procedures and work up associated with acute renal failure. Dr. Torelli was not treating the patient for his acute renal failure and would not know what testing or medications to prescribe for acute renal failure. Rather, Dr. Goyal was the specialist in charge of the plan of care. Moreover, the court below improperly questions whether Dr. Torelli and/or South Shore Family Practice should have provided medical clearance for the biopsy. As set forth above, these parties were not asked to provide medical clearance for the proposed kidney biopsy and were not contacted to do anything 29 related to the renal biopsy. These parties would not have known about the renal biopsy but for the June 2, 2008 letter sent by Dr. D’Agate. This letter was only sent to Dr. Torelli as a customary practice of Dr. D’Agate and did not seek or request any input of the pre-surgical plan including medications. Dr. Garbitelli’s affirmation clearly demonstrates that Dr. Torelli and South Shore Family Practice did not deviate from accepted standards of care and that there were no departures by these defendants. The court’s reference to Dr. Garbitelli not discussing the cause of death as coronary artery disease or the defendant’s actions relative thereto is misleading. Dr. Garbitelli addresses the factual allegations raised by plaintiff and clarifies that these allegations are without merit and cannot serve as a basis for liability against these defendants. As there are no departures, there can be no medical malpractice. See Rebozo, 41 A.D.3d at 459, 838 N.Y.S.2d at 123. 30 POINT II: DR. TORELLI AND SOUTH SHORE FAMILY PRACTICE DID NOT HAVE ANY DUTY TO TAKE ANY ACTION UPON RECEIPT OF DR. D’AGATE’s JUNE 2, 2008 LETTER As stated previously, Dr. Charash, plaintiff’s expert, raises two departures against Dr. Torelli and South Shore Family Practice. The first departure is wholly unsupported by the facts and evidence in the record and is more fully addressed herein. In his affidavit, Dr. Charash describes the first departure as follows: “it is a departure from good and accepted practice when defendant Torelli ignored or failed to act when he received the June 2, 2008 letter addressed to him.” (R. 2736- 2737). Dr. Charash does not specify what action, if any, should have been taken by Dr. Torelli or South Shore Family Practice or how any such action would have prevented plaintiff’s demise. Moreover, it is not known when, exactly Dr. Torelli or South Shore Family Practice actually received the letter dated June 2, 2008. The patient died only a few days later on June 7, 2008. In any event, Dr. Charash’s statement is incorrect and has no basis in law or fact. Dr. Torelli did not have any duty to perform any act upon receipt of that letter. The only reason Dr. D’Agate sent Dr. Torelli the letter was because he was the family physician and it was customary to send such letters to the family doctor. (R. 1538-1541). No one expected and under no circumstances would there be a 31 duty for Dr. Torelli to call anyone after receiving that letter to question when the antiplatelets should be stopped or resumed, as the specialists were handling these issues. Dr. Goyal, the nephrologist, testified that the purpose of the letter was merely to have written confirmation of his conversation with Dr. D’Agate for the chart. (R. 436). The record is clear that the cardiologist, Dr. Patel, prescribed antiplatelets to the decedent following his 2003 heart attack. (R. 537-539). The decedent, Mr. Burns, had been periodically following and treating with his cardiologist and cardiology group, Suffolk Heart Group, LLP, since that time. The record is also clear that in April of 2008, Dr. Torelli referred the patient to Dr. Goyal, a nephrologist, for concern over lab studies which showed acute renal failure. (R. 876). Dr. Goyal, the nephrologist, concluded that a kidney biopsy was medically necessary for the patient and wrote a prescription for the kidney biopsy which was scheduled to take place on June 6, 2008 at Southside Hospital. (R. 427, 428; 2683). Prior to the kidney biopsy, Dr. Goyal, the nephrologist, directed the patient to consult with his cardiologists regarding suspension of his antiplatelet medications. (R. 423). The patient failed to do so. As a result, on May 29, 2008, Dr. Goyal contacted the patient’s cardiologists to discuss the suspension of 32 antiplatelets prior to the proposed kidney biopsy. (R. 429, 430). Dr. Goyal had a phone discussion with Dr. D’Agate, a cardiologist at Suffolk Heart Group, about suspending antiplatelets and resuming antiplatelets. (R. 429, 430; 1541, 1542). There is no dispute that Dr. Torelli was not involved in these discussions. The cases and authority on this subject are clear. Dr. Torelli would not be in a position to question the decision made by another physician concerning cardiac medications. Dr. Torelli would have no duty to oversee the directives of the cardiologists and other specialists. Dr. Torelli would have no duty or obligation to call the patient or the physicians referred to in the letter to ensure that antiplatelets were suspended or resumed. Moreover, the cessation and resumption of the antiplatelet medication was not date specific. The patient would have necessarily had to follow the directives of his cardiologists and other specialists as to when to hold the antiplatelets. Similarly, the patient would have needed to follow the directives of the person performing the biopsy to know when it was safe to resume antiplatelets. The timing of when to stop and when to resume antiplatelet agents is a decision that could not be made by an internist such as Dr. Torelli. Dr. Torelli had no duty to oversee the course of treatment prescribed by other physicians. The cases and authority cited below are very clear on this issue. Dr. Torelli’s status as the primary care physician does not impose upon him the 33 duty to act after he had received the letter dated June 2, 2008. To suggest otherwise would require every primary care physician to act every time a medical report or correspondence from another physician is received to make phone calls to the specialists, to the patient or others to make certain that all directives by all other specialists were being followed through. This proposition is not only absurd but also impractical and unrealistic. The authority and cases establish that a primary care physician does not have a duty to supervise the actions of a specialist. Specifically, Burtman v. Brown, 97 A.D.3d 156, 945 N.Y.S.2d 673 (1st Dep’t 2012), involved a medical malpractice action. The patient in that case had an abdominal mass for which she was being treated and cared for by her obstetrical practice. The patient had a full check-up with her primary care physician. The primary physician had received a copy of the sonogram report concerning the mass. Plaintiff argued that there was an issue of fact as to whether the primary care physician should have conducted a more complete exam and whether the primary care physician should have discussed the results of the sonogram with the patient with a suggestion to follow up for a biopsy. Burtman, 97 A.D.3d at 160, 945 N.Y.S.2d at 676. The Appellate Division, First Department in Burtman found that in order to reach a discussion about a deviation from accepted medical practice, there must 34 first be a duty. Burtman, 97 A.D.3d at 161, 945 N.Y.S.2d at 677. In ascertaining duty, it is not the defendant physician’s status but the extent to which the defendant advised and the plaintiff relied on his advice concerning the treatment at issue. Well-established precedent supports this view. Id. Whether a defendant doctor owes a duty of care to the plaintiff is a question of law. Koeppel v. Park, 228 A.D.2d 288, 290, 644 N.Y.S.2d 210, 212 (1st Dep’t 1996). It is generally not the subject of expert opinion. Burtman, 97 A.D.3d at 161, 945 N.Y.S.2d at 677. Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied upon by the patient. Wasserman v. Staten Island Radiological Associates, 2 A.D.3d 713, 714, 770 N.Y.S.2d 108, 109 (2d Dep’t 2003); Markley v. Albany Medical Center Hosp., 163 A.D.2d 639, 640, 558 N.Y.S.2d 688, 689 (3d Dep’t 1990). The court in Burtman noted that the defendant was not involved in the setting or the monitoring of the course of treatment prescribed for the plaintiff’s abdominal mass and found that the plaintiff produced no legal authority for the view that the primary care physician had an independent duty to assess the course of treatment set and monitored by another physician. Accordingly, the trial court was incorrect in imposing on the defendant primary care physician the duty of 35 overseeing the course of treatment commenced by another physician. Burtman, 97 A.D.3d at 164, 945 N.Y.S.2d at 679. The Second Department in Wasserman dismissed the complaint against the internist, surgeon and radiologist, noting that they did not depart from good and accepted medical practice by deferring to the orthopedic specialists for assessment and treatment of plaintiff’s ankle, and they could not be charged with the duty to diagnose Reflex Sympathetic Dystrophy since they were not involved in this aspect of the patient’s care. Wasserman, 2 A.D.3d at 714, 770 N.Y.S.2d at 109. Where the plaintiff’s expert in an affirmation claimed that the defendant doctor had an obligation to coordinate the plaintiff’s treatment, the question of the legal duty to be imposed on the physician was found to be neither a question of fact nor of medicine, and the expert’s affidavit was without probative force in this regard. Huffman v. Linkow Institute for Advanced Implantology, Reconstructive and Aesthetic Maxillo-Facial Surgery, 35 AD3d 214, 217, 826 NYS2d 229, 231 n.1 (1st Dep’t 2006). Even if such a duty were imposed upon Dr. Torelli and/or South Shore Family Practice, the plaintiff’s expert does not state specifically what actions these parties should have taken, who they should have called or what specifically they should have done. 36 Where the affidavit of a plaintiff’s expert is conclusory and does not address the assertions made by the defendant’s expert or otherwise explain why the treatment in this instance was a departure, the plaintiff’s expert affidavit will be insufficient to raise a triable issue of fact. Thompson v. Orner, 36 A.D.3d 791, 792, 828 N.Y.S.2d 509, 511 (2d Dep’t 2007). Where the affidavit of plaintiff’s expert submitted in opposition to defendant’s motion failed to raise a triable issue of fact regarding the applicable standard of care, departures therefrom, and whether such departures proximately caused plaintiff’s injuries, the defendant’s motion for summary judgment was to be granted. Furey v. Kraft, 27 A.D.3d 416, 418, 812 N.Y.S.2d 590, 591 (2d Dep’t 2006), appeal denied, 7 N.Y.3d 703, 819 N.Y.S.2d 869 (2006). The bare conclusory allegations of the affidavit of plaintiff’s expert, unsupported by the record and lacking foundation, were insufficient to raise a triable issue of fact. Id. Plaintiff’s expert’s Affirmation is wholly speculative and conjecture with regard to the departures against Dr. Torelli and South Shore Family Practice. In stating that Dr. Torelli failed to act after receiving the June 2, 2008 letter, there is no statement of precisely what needed to be done by Dr. Torelli and how that would have prevented the patient’s demise. For all of these reasons, plaintiff has failed to show that Dr. Torelli and/or 37 South Shore Family Practice had a duty to act as a result of the June 2, 2008 letter. 38 POINT III: DR. TORELLI AND SOUTH SHORE FAMILY PRACTICE DID NOT HAVE ANY DUTY TO PROVIDE ANY CLEARANCE FOR THE KIDNEY BIOPSY AND WERE NOT CALLED UPON TO PROVIDE ANY CLEARANCE Plaintiff’s expert, Dr. Charash, attempts to raise a second departure against Dr. Torelli and South Shore Family Practice by stating that it was a departure from accepted practice to allow the biopsy to proceed unless Mr. Burns was physically able to withstand the procedure. (R. 2737). This statement is without merit and is more fully addressed below. At the outset, Dr. Charash’s statement cannot possibly be deemed a departure against Dr. Torelli or South Shore Family Practice because the kidney biopsy was never performed. Therefore, whether or not Mr. Burns should have had medical clearance is irrelevant. For this reason alone, Dr. Charash’s statement regarding medical clearance for the biopsy cannot be deemed a departure. In addition, Dr. Torelli and/or South Shore Family Practice were not called upon for medical or cardiac clearance and were not asked to examine the patient for clearance for the biopsy. Dr. Goyal was handling all of the work up needed for the kidney biopsy. Dr. Goyal was planning to have the biopsy scheduled at Southside Hospital and as stated previously, he told the plaintiff he needed cardiac clearance and 39 advised him to see his cardiologists. (R. 425, 426; 429, 430). Dr. Goyal was making all the necessary arrangements to ensure that plaintiff’s biopsy would proceed. Once Dr. Goyal’s office orders the biopsy at Good Samaritan Hospital, the hospital then arranges everything. (R. 437-438). The biopsy is done by interventional radiology. (R. 438). At no point in time was Mr. Burns directed to see his primary doctor for medical or cardiac clearance or for advice on his antiplatelet medications. It is not possible for Dr. Torelli and/or South Shore to be charged with a deviation when they were not asked and would not have known to perform medical clearance. Finally, the kidney biopsy was deemed medically necessary by the nephrologist, Dr. Goyal. Therefore, arguing there was an issue as to whether Mr. Burns could withstand the kidney biopsy is a moot point as the patient did not have another option. Dr. Goyal provided deposition testimony that the kidney biopsy was medically necessary. It was not an option. (R. 424). The affirmation of nephrologist, Gerard Tepedino, M.D., also confirms that the kidney biopsy was medically necessary. (R. 1677). Dr. Tepedino explains that Mr. Burns presented to Dr. Goyal with advanced kidney dysfunction and nephrotic range proteinuria with blood tests suggesting immune-mediated glomerlar process. (R. 1673-1684) 40 No further diagnostic information would have been attained without a kidney biopsy and the patient would have likely needed renal replacement therapy in the not so distant future without addressing the change in his kidney dysfunction. (R. 1673-1684). Not withholding the antiplatelet agents and performing an open renal biopsy carried more risks and morbidity than performing a percutaneous biopsy. (R. 1679). Also, not performing the biopsy at all thus precluded a diagnosis of Mr. Burns’ kidney disease. The biopsy was not optionable as Mr. Burns was on his way to kidney failure and would have required dialysis or even a kidney transplant without intervention. (R. 1679). The risk of not pursuing a diagnosis in this case was significant. (R. 1679). Therefore, Dr. Charash’s statement that Dr. Torelli and South Shore Family Practice should not have allowed the biopsy to proceed makes no sense as it was deemed medically necessary by the nephrologist. Dr. Torelli, the internal medicine physician, would not be in a position to object to the determination made by another specialist, outside his area of expertise. 41 POINT IV: NO PROXIMATE CAUSE WAS ESTABLISHED BETWEEN THE ALLEGED DEPARTURES AND THE PATIENT’S ULTIMATE DEMISE The court is permitted to review the entire record on a motion for summary judgment and similarly on appeal, to search the entire record in rendering a decision. Wilson v. Buffa, 294 A.D.2d 357, 358, 741 N.Y.S.2d 713, 714 (2d Dep’t 2002), appeal denied, 98 N.Y.2d 611, 749 N.Y.S.2d 3 (2002). As set forth above, plaintiff’s expert, Dr. Charash, has attempted to establish two departures by Dr. Torelli and South Shore Family Practice. It is respectfully submitted that plaintiff has wholly failed in his attempt to set forth any departures against these parties as indicated in the arguments above and therefore the within appeal should be granted on the basis that there is no evidence these parties deviated from accepted standards of care. In addition to a failure to set forth departures, plaintiff has also failed to establish proximate cause that would relate the “departures” to the patient’s death. Dr. Charash fails to show how the alleged two “departures” were the competent producing cause of injury, as required by law. Ross v. Braverman, 44 A.D.3d 923, 925, 845 N.Y.S.2d 359, 361 (2d Dep’t 2007). Where a plaintiff’s expert failed to explain how alleged failures constituting malpractice proximately related to the plaintiff’s claims, the complaint required dismissal. Yasin v. Manhattan Eye, Ear & 42 Throat Hospital, 254 A.D.2d 281, 283, 678 N.Y.S.2d 112, 114 (2d Dep’t 1998). The cause of death is set forth in the autopsy report and the deposition testimony of the pathologist, Dr. Sheng Chen, who performed the autopsy and issued the autopsy report June 12, 2008. (R. 1187, 1188, 1189, 1199, 1200). Dr. Chen concluded that Mr. Burns died of cardiac arrest based on anatomic findings. (R. 1212, 2147, 2152). Dr. Chen found the decedent had an enlarged heart, stents in the coronary artery and the coronary artery showed atherosclerosis with significant narrowing of the lumen, occlusion of the lumen. (R. 1213). The occlusion was in the coronary artery. (R. 1213). There was fibrosis indicating a prior heart attack. (R. 1213). Dr. Cheng believed the decedent died of cardiac arrest secondary to coronary artery disease. (R. 1215). According to Dr. Chen’s autopsy, there was no evidence of a blood clot, an embolus. Rather, the cause of death on the autopsy is listed as coronary disease. (R. 2147, 2152). Despite the findings in the autopsy, Dr. Charash (plaintiff’s expert) has opined in his affirmation annexed to plaintiff’s opposition that decedent died from an arrhythmia caused by an acute clot formation at the site of one his imbedded stents because of the consequences of being off Plavix. Dr. Charash goes on to state that 50% of people who have a heart attack caused by the acute formation of a 43 blood clot will not have the blood clot seen on an autopsy. (R. 2727-2737). Dr. Charash’s opinion in paragraph 17 regarding the cause of death is nothing less than speculation. (R. 2734-2735). Dr. Charash does not provide any medical or factual basis for these statements or his opinion that decedent died from an acute clot formation. He does not cite to any medical literature or journal to support his statement that 50% of those who die from heart attacks will not have blood clots seen on autopsy. Dr. Charash is not a pathologist and did not perform the autopsy on the decedent. There are no medical records which support Dr. Charash’s conclusion. Dr. Charash conveniently ignores the findings of the pathologist who examined the decedent’s body and found no cardiac tamponade, no clot, no thrombus, or occlusion. The autopsy report states that the cause of death was “coronary artery disease” and references a “possible old infarct”. (R. 2147-2152). It makes no sense that the pathologist would find evidence of an old infarct as indicated by the statements “area of pallor in the cardiac septum” but would not find any evidence of an infarction occurring on June 7, 2008, the date the decedent expired. In addition, Jacob Shani, M.D., a board certified cardiologist who submitted an affirmation in support of Dr. Patel and The Suffolk Heart Group’s motion, has 44 affirmed that both the clinical presentation of the patient and the autopsy report are consistent with sudden death caused by the heart’s electrical system such as ventricular fibrillation or atrioventricular block and not an occluded artery. (R. 2200-2201). Dr. Shani affirms that the autopsy report showed no embolus, no taponade, but did find cardiomegaly, coronary artery disease and fibrosis of the ventricular septum and left ventricle. (R. 2197). Dr. Shani further affirms that the Southside Hospital records indicate decedent was found in cardiac arrest at 4:50pm. He was pronounced dead at 5:18pm. Dr. Shani affirms and concludes that the autopsy and clinical picture are consistent with sudden death caused by the decedent’s electrical system as opposed to an occluded coronary artery. (R. 2197). Dr. Charash’s far reaching conclusion that decedent died from an acute clot is based upon pure speculation and is not supported by any medical records in this case. Where the opinion of an expert is conclusory, this cannot defeat a proponent’s entitlement to summary judgment. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 926 (1986). General allegations of medical malpractice that are unsupported by competent evidence are insufficient to defeat a motion for summary judgment. See Arkin v. Resnick, 68 A.D.3d 692, 694-95, 890 N.Y.S.2d 95, 98 (2d Dep’t, 2009); Cahill v. County of Westchester, 226 A.D.2d 45 571, 572, 641 N.Y.S.2d 346 (2d Dep’t 1996). Once the movant makes the requisite showing of entitlement to judgment as a matter of law, the burden is placed upon the opponent to demonstrate a triable issue of fact. Lifshitz v. Beth Israel Med. Ctr-Kings Highway Div., 7 A.D.3d 759, 760, 776 N.Y.S.2d 907, 908 (2d Dep’t 2004); Carroll v. St. Anthony’s High Sch, 226 A.D.2d 415, 416, 640 N.Y.S.2d 794 (2d Dep’t 1996). The opponent of a summary judgment motion in a medical malpractice action must submit a physician’s affidavit of merit attesting to a departure or deviation from acceptable medical practice and attesting to the fact that the departure or deviation was a competent producing cause of the injuries sustained by the plaintiff. Arkin, 68 A.D.3d at 694, 890 N.Y.S.2d at 98; Domaradzki v. Glen Cove OB/Gyn Assocs., 242 A.D.2d 282, 660 N.Y.S.2d 739, 740 (2d Dep’t 1997). The bare, conclusory allegations of the affidavit of plaintiff’s expert, unsupported by the record and lacking foundation, are insufficient to raise a triable issue of fact. Furey, 27 A.D.3d at 418, 812 N.Y.S.2d at 591. Accordingly, it is respectfully submitted that plaintiff has failed to establish the requisite element of proximate cause. CONCLUSION Plaintiff-Respondent clearly fails to show any deviations from accepted standards of care on the part of Dr. Torelli and South Shore Family Practice and fails to establish proximate cause. Accordingly, it is respectfully submitted that the decision of the court below be reversed with respect to these parties, and all claims against Dr. Torelli and South Shore Family Practice be dismissed. KELLER O'REILLY & WATSON Attorneys for Defendants-Appellants MICHAEL TORELLI, M.D. and SOUTH SHORE FAMILY PRACTICE ASSOCIATES, P.C. 242 Crossways Park West Woodbury, New York 11797 (516) 496-1919 46 47 APPELLATE DIVISION - SECOND DEPARTMENT CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR section 670.10.3(f) that the foregoing appellant’s brief was prepared on a computer using Word. Type: A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line Spacing: Double Word Count: The total number of words in this 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 9,776. Dated: Woodbury, New York April 8, 2015 Angela A. Cutone Keller O’Reilly & Watson, P.C. 242 Crossways Park Drive West Woodbury, New York 11797 T: (516) 496-1919 F: (516) 496-9791