Barbara Burns,, Appellant,v.Sudhir Goyal, et al., Defendants, Rakesh B. Patel, et al., Respondents.BriefN.Y.October 10, 2017To be Argued by: FRANK N. AMBROSINO (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 PLAINTIFF-RESPONDENT (Redacted Version) FRANK N. AMBROSINO, ESQ. Attorney for Plaintiff-Respondent 548 West Jericho Turnpike Smithtown, New York 11787 (631) 724-4233 Suffolk County Clerk’s Index No. 20115/10 Docket No.: 2014-11013 TABLE OF CONTENTS PRELIMINARY STATEMENT………………………………………………...…1 QUESTIONS PRESENTED…………………………………………………….....8 STATEMENT OF FACTS…………………………………………………………9 A. Dr. Patel and Suffolk Hearts’ Summary Judgment Motion……………………………………………………………….14 B. Dr.Torelli and SouthShore Family Practice Assoc., P.C’s Summary Judgment Motion…………………………………………19 LEGAL ARGUMENT……………………………………………………………22 A. Dr. Patel and Suffolk Heart Group, LLP……………………………23 B. Dr. Michael Torelli and Family Practice……………………………30 CONCLUSION………………………………………………………...…………37 i TABLE OF AUTHORITIES Cases: Page: Alvarez V. Prospect Hospital 68 NY2d 320, 508 NYS 2d 923 (1986)……………………………………….27 Barbuto V. Winthrop University Hosp 305 AD 2d 623 (2003)………………………………………………….……..24 Boone V. North Shore University Hosp at Forest Hills 12 AD 3d 388 (2004)………………………………………………………….37 Burtman V. Brown 97AD 3d 156, 945 NYS 2d 673 (1st Dept 2012)………………………………32 Castro V. Liberty Bus Co. 79 AD 2d 1014, 435 NYS 2d 340 (2d Dept 1981)……………………………23 Dragotta V. Southampton Hosp 39 AD 3d 697,833 NYS 2d 638 (2d Dept. 2007)…………………………….27 Friends of Animals V. Associated Fur Mfrs. 46 NY 2d 1065, 416 NYS 2d 790 (1979)……………………………………..22,31 Graham V. Mitchell 37 AD 3d 408, 824 NYS 2d 628 (2d Dept 2007)…………………….……….24,25 Halkias V. Otolaryngoly Facial Plastic Surgery Assoc. 282 AD 2d 650 (2001)………………………………………………………..25 Markley V. Albany Med Gtr Hosp. 163AD 2d 639, 558 NYS 2d 688 (3d Dept 1990)…………………………….37 Moore V. NY Med. Group, P.S 44AD 3d 393 (1st Dept 2007)…………………………………………………26 Ruddy V. Nolan 37 AD 2d 694 (2d Dept 2007)………………………………………………..36 ii Sheilds V. Baktidy 11 AD 3d 671 (2004)…………………………………………………………24 Sillman V. Twentieth Century Fox 3NY2d 395, 165 NYS 498 (1957)…………………………………………….22,31 Tom V. Sundaresan 107 AD 3d 479 (1st Dept. 2013)……………………………………………….34 Wasserman V. Staten Is. Radiological Assoc 2 AD 3d 713 (2003)……………………………………………………………37 Winegrad V. N.Y. U Medical Center 64 NY 2d 851, 487 NYS 2d 316 (1985)………………………………………22,31 Zuckerman V. City of New York 49 NY 2d 557, 427 NYS 2d 595 (1980)……………………………………….23 iii 1 BRIEF FOR PLAINTIFF BARBARA BURNS, individually and as Executrix Of the Estate of THOMAS J. BURNS, deceased. PRELIMINARY STATEMENT Plaintiff Barbara Burns, individually and as the Executrix of the Estate of Thomas J. Burns, deceased brought an action for medical malpractice and wrongful death against, among others, defendants Rakesh B. Patel, MD (hereinafter Patel) Suffolk Heart Group, LLP. (hereinafter Suffolk Heart), Michael Torelli, M.D. (hereinafter Torelli) and Southshore Family Practice Assoc., P.C. (hereinafter Family Practice). Defendants Patel, Suffolk Heart, Torelli and Family Practice appeal from so much of the Order of Suffolk County Supreme Court Justice Jeffery Arlen Spinner dated July 23, 2014 and entered July 29, 2014 in the Suffolk County Clerk’s office, which denied their motions for summary judgment. Barbara Burns was married to descendent Thomas J. Burns on May 23, 1981. They had two (2) children together, Kimberly and Christopher On or about October, 2003, Mr. Burns suffered an acute anterior wall myocardial infarction while coaching a soccer match for his child. Mr. Burns was taken to Southside Hospital where defendant Patel performed an angioplasty with the placement of multiple stents in the left anterior descending artery. At the same time, it was found Mr. Burns’ right coronary artery was 100% occluded. Mr. Burns was discharged from Southside Hospital 2 approximately five (5) days later in stable condition and thereafter continued to treat with defendant Patel. Mr. Burns was prescribed Plavix, Toprol, Ramipril, Zetia, Zocar and Imdur. Mr. Burns was also directed to take aspirin daily. By March, 2008 HCTZ was added, as was Altace (and then discontinued). Crestor was also added and Lipitor thereafter substituted. On or about May 26, 2005 an angiogram indicated three (3) vessel coronary disease (LAD, LCX and RCA), a decreased left ventricular ejection fraction of 50% and elevated left ventricular end diastolic pressure. Defendant Patel inserted three (3) additional drug eluting stents (DES) into the ostial, mid and proximal right coronary artery. On or about February, 2008 Mr. Burns suffered what was later diagnosed as a questionable triple hernia (bilateral inguinal and ventral). After presenting to his primary care physician defendant Torelli, he was referred by defendant Torelli to Dr. Wodicka (a vascular surgeon) for a proposed laproscopic hernia repair procedure. By letter dated March 25, 2008, defendant Patel cleared Mr. Burns from a cardiac stand point for the hernia procedure. Other pre surgical blood workup showed first, a possible Gall bladder abnormality. Follow up blood work and Urinanalysis indicated worsening kidney function and potential acute kidney failure. Defendant Torelli canceled the proposed hernia procedure and referred Mr. Burns to defendant Goyal, a nephrologist. Defendant Goyal determined that a 3 renal biopsy was the recommended course and clearance for the renal biopsy was directed. Unable to contact defendant Patel for cardiac clearance, Mr. Burns presented to defendant Goyal’s office on or about May 29, 2008 and explained to defendant Goyal he had not yet secured cardiac clearance. In Mr. Burns’ presence, defendant Goyal telephoned defendant Patel at his office. Because Defendant Patel was not available, Dr. D’Agate (one of defendant Patel’s partners and a member of defendant Suffolk Heart Group, LLP) took the call. Dr. D’Agate secured Mr. Burns’ chart and reviewing the previous defendant Patel cardiac clearance letter (for the hernia procedure) dated March 25, 2008 and inquired of defendant Goyal regarding Mr. Burns’ present condition. It was conveyed that Mr. Burns appeared stable, with no new symptoms. Based on these two (2) factors, Dr. D’Agate conveyed to defendant Goyal that it was safe to hold anti-platelet therapy prior to undergoing the renal biopsy, but there should be prompt reinitiation of anti-platelet agent. This was confirmed by Dr. D’Agate by letter dated June 2, 2008 addressed to defendant Torelli and carbon copied to defendant Goyal. Pursuant to the direction of defendant Goyal, Mr. Burns stopped his Plavix on June 3, 2008. Unfortunately, the renal biopsy scheduled for June 6, 2008 was canceled. No health care provider instructed Mr. Burns to reinitiate his anti- platelet therapy. On June 7, 2008 Mr. Burns died form an arrhythmia caused by an 4 acute clot formation at the site of one of his imbedded DES (drug eluding stent) due to Mr. Burns’ lack of anti-platelet agents in his system. After reviewing only defendant Patel and defendant Suffolk Heart’s submissions, Justice Spinner initially found that defendant Patel and defendant Suffolk Heart “demonstrated prima facie entitlement to summary judgment dismissing the complaint as asserted against them.” But after considering plaintiff’s opposition to defendant Patel and defendant Suffolk Heart’s arguments, Justice Spinner correctly found that the motion for summary judgment should be denied. Regarding defendants Torelli and Family Practice, Justice Spinner found the expert affirmation, submitted on their behalf, to be conclusory and unsupported with the standard of care and treatment for the medical care, provided to the decedent (sic) by defendant Torelli and Family Practice. Justice Spinner further found that there were factual issues concerning whether or not defendant Torelli departed from the standard of care by failing to coordinate the decedent’s care and treatment with the specialists, properly clearing the decedent for biopsy and failing to advice the surgeon of the need for prompt reinitiation of the anti platelet therapy. The motion for summary judgment by defendant Torelli and Family Practice was denied. 5 It is clear from the record and Justice Spinner’s order that there are numerous material issues of fact regarding defendant Patel and Suffolk Heart which exist which require a trial. Plaintiff’s expert Dr. Charash, a specialist in Cardiology and Board Certified in Internal Medicine and Cardiovascular Disease, correctly opined that defendants Patel and Suffolk Heart departed from good and accepted practice. Contrary to defendant Patel and Suffolk Heart’s positions, Dr. Charash specifically found that the “guidelines” relied upon by defendant’s expert, Dr. Shani, which state that Plavix and aspirin need only be continued for one year after stenting, were merely “guidelines” which establish general medical principles which must be applied to the facts of each individual case. Defendant Patel and his partner Dr. D’Agate, aware of the “guidelines” had continued Mr. Burns for more than three (3) years after placement of the DES and by confirming letters, directed prompt reinitiation of the anti platelet agents. Dr. Charash correctly rejected Dr. Shani’s one year “guideline” argument and concluded and agrees with both of Mr. Burns’ treating cardiologists who recognized that Mr. Burns was at an unreasonably increased risk of harm should he remain off of Plavix for too long a period of time. 6 Dr. Charash also disagreed with defendant’s expert where he opines that the autopsy is inconsistent with Mr. Burns dying because of his being off of Plavix. Dr. Charash stated, contrary to Dr. Shani’s argument, that 50% of people who have a heart attack caused by acute formation of a clot will have their clot absent on autopsy. More over, contrary to Dr. Shani’s opinion, the Death Certificate and Autopsy list the Cause of Death as Coronary Artery Disease. Dr. Charash also disagrees with the “addendum” which appears in defendant Goyal’s chart which allegedly quotes Dr. D’Agate during the telephone conversation. Defendant Goyal alleges that Dr. Agate stated that anti-platelet therapy could be withheld for 10-12 days before and 2-3 days after the procedure. Dr. Charash confirms that if the statement was made by Dr. D’Agate, that advice would be a departure from good and accepted practice. Finally, the directions by defendant Patel and Dr. D’Agate that with holding Plavix “…for a few days” is vague at best and does not give sufficient direction to who ever is scheduled to do a procedure. It is clear from the record and Justice Spinner’s order that there are numerous material issues of fact, regarding defendants Torelli and Family Practice, which require a trial. 7 Plaintiff’s expert Dr. Charash correctly opined that defendants Torelli and Family Practice also departed from good and accepted practice. Contrary to the position taken by defendants Torelli and Family Practice, Mr. Burns was a long standing patient who relied on defendant Torelli for care and treatment regarding all of his general health. Mr. Burns saw defendant Torelli for numerous aliments up to and including his ultimate demise in 2008. The Court below correctly initially found that the affirmation submitted by Dr. Gabitelli was conclusory and did not set forth the standard of care and treatment for the medical care provided to Mr. Burns. The position taken by defendant Torelli that it was merely “custom and practice” that Dr. D’Agate addressed the letter dated June 2, 2008 and it established no duty for defendant Torelli to act is clearly conclusory and not supported by the facts. The Court below correctly found that the defendant’s expert did not even address plaintiff’s argument that a duty did exist and never stated what the appropriate course of behavior was. Dr. Charash correctly found it was 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. Further, as the doctor coordinating the numerous specialists involved in Mr. Burn’s care and treatment in or around June, 2008, defendant Torelli by his expert Dr. Garbitelli never explained what the proper course of treatment for Mr. Burns was. 8 Accordingly, the order appealed from should be confirmed and not reversed and defendants’ Patel, Heart Group, Torelli, and Family Practice’s motions for summary judgment should be denied. QUESTIONS PRESENTED. 1. Did the plaintiff raise issues of fact requiring a trial, in opposition to Suffolk Heart and Patel’s motion for summary judgment? The Supreme Court correctly answered “yes” . 2. Was the Supreme Court correct in finding that the Expert affirmation, submitted in support of the motion for summary judgment made on behalf of defendants Michael Torelli, M.D and South Shore Family Practice Accoc., P.C, was conclusory and unsupported with the standard of care and treatment provided to the decedent? The Supreme Court correctly found that the affirmation submitted was conclusory and unsupported with the standard of care and treatment provided to the decedent. 3. Was the Supreme Court correct in finding that factual issues regarding whether Dr. Torelli and South Shore Family Practice Assoc. P.C departed from the standard of care? The Supreme Court correctly found that factual issues regarding whether Dr. Torelli and South Shore Family Practice Assoc., P.C. departed from the standard of care. 9 STATEMENT OF FACTS Plaintiff Barbara Burns was married to Thomas J. Burns on May 23, 1981. They had two (2) children together, Kimberly and Christopher . Mr. Burns was employed as a principal designer (piping for power plants) by Key Span, LILCO and/or National Grid (or whatever entity was the owner at the time). On or about October, 2003 while coaching a soccer match, Mr. Burns suffered what was later diagnosed as an acute anterior wall myocardial infarction. Mr. Burns was taken to Southside Hospital where defendant Patel was on call (R:510-511). Defendant Patel performed an angioplasty and stent placement in the left anterior descending artery. Defendant Patel found Mr. Burns left anterior descending artery 100 percent blocked and his right coronary artery appeared to be 100 percent blocked as well. Mr. Burns’ circumflex artery did have some disease, but it was in the branches. Defendant Patel found “significant coronary disease.” (R: 512-513). Mr. Burns was placed, among other drugs, on Plavix and aspirin to thin his blood, because Mr. Burns had a metal coil in the artery (therefore the need to be on two (2) blood thinners) (R:516). Mr. Burns was discharged from Southside Hospital after five (5) days and saw defendant Patel in his office for the first time on or about October 21, 2003. Mr. Burns was noted to be on Aspirin 325 mg po 10 qd, Plavix 75 mg po qd, Toprol XL 300 mg po qd, Ramipril 10 mg po qd, Zetia 10 mg po qd, Zocor 40 mg po qlds, Imdur 30 mg po qd. Mr. Burns was noted to have stopped smoking since one and a half weeks (R: 604-605). He was placed on a Holter Monitor for 21 hours 34 minutes on or about November 10, 2003 with no evidence of supraventricular tachycardia or prolonged arrhythmias (R:613). On December 3, 2003, Mr. Burns underwent an exercise and rest Myocardial Perfusion Scanning using Myoview (technetium 99m) as the imaging agent. The results were negative Pesantine Stress test for ECG, but there was no evidence of ischemia (a fixed defect involving the inferior wall consistent with prior infarction) (R:635-636) The results were discussed with Mr. Burns on or about December 9, 2003. Again, it was noted he had stopped smoking (R:622). Mr. Burns was seen again by defendant Patel on or about March 2, 2004 doing well. Mr. Burns was told to follow up in 6 months. (R:672) Defendant Patel next saw Mr. Burns on or about July 27, 2004 and continued medical therapy was advised (R:689). In August, 2004, Mr. Burns had an ECG which showed normal LV systolic function (R:696-697). Defendant Patel next saw Mr. Burns on or about February 1, 2005. By now, his ejection fraction was 58% (60% is normal) and near normal. Mr. Burns reported mid chest discomfort after eating and was thought to be reflux disease, relieved by antacids. (R:722). On May 23, 2005 it was decided that because of the known history of an occluded right coronary artery and prior 11 myocardial infarction and stenting of the LAD and normal ejection fraction, Mr. Burns would undergo repeat cardiac catheterization (R:731-732). On May 26, 2005, defendant Patel performed a coronary angiogram and a stenting procedure to open the right coronary artery (R:599-560). Mr. Burns saw defendant Patel on or about June 3, 2005 having recently underwent multi-stent angio plasty of the right coronary vessel. It was recommended current medical therapy (R:757-758). Mr. Burns again saw defendant Patel on or about March 7, 2006 with a known history of prior anterior wall myocardial infarction treated with primary angioplasty, subsequent revascularization of the RCA with drug-eluting stents. It was recommended to continue current medical therapy (R: 765-766). On or about March 25, 2008, defendant Patel saw Mr. Burns for a pre- operative stratification prior to hernia surgery. Mr. Burns was noted as quit smoking and compliant with his current medical regimen. Defendant Patel found no cardiac contraindications to performing hernia surgery and recommended: 1. “If Plavix needs to be held for a few days prior to surgery, this will be safe, however, it should be resumed post surgery. 2. I have asked him not to hold his Toprol XL or Altace on the day of surgery. 3. All of his medications will be continued for now. 12 4. Periodic monitoring of lipids and liver function test will be done by your office.”(R:798-799) Unfortunately, further pre operative testing showed an increase in the hospital lab work with a worsening of kidney function. Mr. Burns had elevated BUN and acute renal failure (R:875). Mr. Burns was referred by defendant Torelli to defendant Goyal on or about April 9, 2008. An abdominal ultra sound ordered by Dr. Goyal was performed on April 21, 2008 and showed a possible 1.6 cm gallstone and fatty infiltration of the liver (R:485). A carotid ultrasound on the same day showed no significant carotid plaque bilaterally and no hemodynamically significant stenosis bilaterally (R:486). Further testing on April 25, 2008 revealed systemic lupus erthemastosus (SLE) and there was something very wrong with the kidney function (R:408-411). Defendant Goyal’s impression was acute renal failure over the past year, possibly secondary to medications including Altace, HCTZ and Crestor, as such drugs could be contributing to renal failure. Defendant Goyal changed the Crestor to Lipitor, substituted Hydralazine for Altace and stopped the HCTZ. Mr. Burns was told to check with his cardiologist (R:410-414). It was decided Mr. Burns would need a renal biopsy and it was discussed that Mr. Burns would need cardiac clearance due to the risk of bleeding because of anti platelets drugs (R: 421). Defendant Goyal saw Mr. Burns again on May 5, 2008 and was put on Lazix for edema (R:417-418) Defendant Goyal discussed with Mr. Burns that the kidney 13 biopsy was the most fragile and can bleed a lot (R:423). On or about May 29, 2008 Mr. Burns again presented to defendant Goyal without being able to secure the required cardiac clearance. Defendant Goyal, in Mr. Burns’ presence, called defendant Patel, but because defendant Patel was not present, one of defendant Patel’s partners, Dr. D’Agate got on the phone with defendant Goyal. A discussion ensued wherein defendant Goyal explained “In order to do the biopsy we need to keep the patient off anti platelets drugs (R:429). Defendant Goyal noted in his record in an “addendum” “Discuss with Dr. D’Agate, agrees with Dr. Patel… Dr. Patel notes that Plavix/aspirin can be held for ten to 12 days… Restart second or third day after biopsy.” (R:430) (R:488). Thereafter, the biopsy was scheduled for June 6, 2008 (R:496-497)(R:437). Dr. D’Agate followed up the telephone conversation with a letter dated June 2, 2008 addressed to defendant Torrelli and carbon copied to defendant Goyal. While defendant Torelli admits his office received the letter (it was reviewed by Jennifer) (R:880), defendant Goyal states he never received it (R:431). The letter states in part “I had an opportunity to discuss the upcoming renal biopsy with Dr. Goyal on Thomas Burns in the office today. The patient was recently seen by Dr. Rakesh Patel on March 25, 2008. The patient does have drug-eluting stents in May of 2005. He is approximately three years out from his last stent and as per Dr. Patel’s last office letter, it is safe to hold anti platelet therapy prior to undergoing 14 renal biopsy, however, he should have prompt reinitiation of anti platelet agent. The patient should continue with his Toprol and Altace on the day of surgery.”(R:2717). Defendant Goyal told Mr. Burns to stop taking the Plavix three (3) days prior to the biopsy (R:198). Mr. Burns intended to go back on the Plavix when he was told. (R:315). Unfortunately, the biopsy was canceled on or about June 5, 2008 (R:314). On June 7, 2008 Mr. Burns expired in his home. Pursuant to the Autopsy and Death Certificate, the cause of death was Coronary Artery Disease (R:2717) and Cardiac Arrest due to Coronary Artery Disease (R:2718). Dr. Patel and Suffolk Hearts’ Summary Judgment Motion In support of defendant Patel and Suffolk Heart’s motion for summary judgment, defendants relied upon the affirmation and expert opinion of Dr. Shani, a radiologist. Dr. Shani stated that the standard of care is to prescribe anti platelets Plavix and aspirin for one year following coronary stenting to help prevent stent thrombosis. Since Mr. Burns was more than three (3) years passed his last stenting, withholding the Plavix after the first year did not violate the standard of care (R:2199). Also, defendant Patel never directed Mr. Burns to discontinue anti platelets prior to the renal biopsy, so it was not his responsibility to instruct Mr. Burns to resume the anti platelet medications after the scheduled renal biopsy (R: 15 2200). And the autopsy is inconsistent with a cardiac arrest caused by a heart attack (R:2200). In opposition, plaintiff submitted the affirmation of Dr. Charash, a specialist in Cardiology and Board Certified in Internal Medicine and Cardiovascular Disease (R:2727-2737). Dr. Charash disagreed with Dr. Shani’s opinion of what the standard of care in 2008 regarding anti-platelet therapy following coronary stenting and their role to help prevent the complication of thrombosis within the stent. Dr. Charash debunked the idea that “guidelines” which call for the continuation of Plavix and aspirin for one year are the standard of care regarding Mr. Burns. First, it was clear that defendant Patel (Mr. Burns’ regular cardiologist) had made the decision to indefinitely continue Mr. Burns’ treatment with Plavix and aspirin, certainly past the one year “guideline.” Indeed, Mr. Burns had been on Plavix and aspirin for more than three years and it is also clear from Dr. D’Agate’s letter of June 2, 2008 (R:2717) and defendant Patel’s letter of March 25, 2008 (R:2715-2716) that they wanted Mr. Burns placed back on Plavix as soon as possible after the renal biopsy (R:2734). It was clear from the record that both of the cardiologists recognized that Mr. Burns was at an unreasonably increased risk of harm should he remain off the Plavix for too long a time. Their recommendation that the anti-platelet therapy be “promptly reinitialized” after the renal biopsy reflects their view of Mr. Burns increased risk of remaining off these 16 medications for any time more than absolutely necessary. Dr. Shani’s position is starkly contradicted by the very doctors responsible for Mr. Burns’ care. Defendant Patel clearly did not, and does not agree with the position taken by Dr. Shani. Quite the opposite, Dr. Patel clearly believed that Mr. Burns needed to remain on Plavix, and that any unreasonable interruption of that therapy put his patient in harm’s way. Dr. Shani’s position does not apply to the facts of this case (R:2734). Regarding the autopsy, Dr. Shani opines that the autopsy (which showed no embolus) is inconsistent with a cardiac arrest caused by a heart attack (occluding coronary artery). Again, Dr. Charash disagrees with Dr. Shani’s position and definitively states “within a reasonable degree of medical certainty, Mr. Burns died because he had not been taking Plavix for several days, including at the time of his death. Because he was not taking Plavix, Mr. Burns was vulnerable to the very thing from which Plavix had been protecting him, which was the formation of an acute thrombus (clot) within one of the coronary arteries, at the site of one of his drug eluting stents… it is clear that Mr. Burns died from an arrhythmia caused by an acute clot formation at the site of one of his imbedded DES.” (R:2734-3735). In response to Dr. Shani’s opinion that the autopsy showed no embolus, Dr. Charash explained that in approximately 50% of people who have a heart attack caused by the acute formation of a clot will have their clot absent on autopsy (R:2734). The 17 clot dissolves and/or dissipates prior to the autopsy. (R:2735) Dr. Charash reiterated his opinion that the finding of both the autopsy and the death certificate that Mr. Burns died from a coronary artery disease causing cardiac arrest (R:2718- 2719) was correct (R:2734). While it does appear that defendant Patel did not direct Mr. Burns to discontinue anti platelets prior to the renal biopsy, it is clear that his partner Dr. D’Agate relied on his March 25, 2008 letter to defendant Torelli with its directions (R:2715-2716). What was questioned was the vagueness of the directions from both defendant Patel and Dr. D’Agate wherein they directed “If plavix needs to be held for a few days…” (Dr.Patel R:2716) and “… it is safe to hold antiplatelet therapy prior to undergoing renal biopsy, however he should have prompt reinitiation of anti platelet agent” (Dr D’Agate R:2717). Defendant Patel stated in his deposition if the procedure (whether the hernia or the biopsy) did not proceed as planned, Mr. Burns should have been on the Plavix (R:575-576). The vagueness of the direction is highlighted by defendant Patel’s testimony wherein he states the Plavix should have been stopped five days before the procedure and back on as soon as the procedure was canceled (R:575-576) and defendant Goyal has a note quoting Dr. D’Agate that says he could withhold the anti-platelet therapy for 10-12 days before the procedure and 2-3 days after the procedure (R:430). When Dr. D’Agate was asked in his deposition about the 18 Plavix, he stated that the Plavix should be reinitialized “… as soon as possible.” Dr. D’Agate also stated when asked about defendant Goyal’s addendum that the Plavix and aspirin can be withheld for ten to twelve days, that defendant Goyal was incorrect (R:1552) Dr. D’Agate in utter disbelief answered “I don’t know where he’s getting the ten to twelve days. That’s something I would never say, you can hold aspirin and Plavix ten to twelve days. I don’t know where those numbers are coming from” (R:1552). Dr. D’Agate also was adamant that defendant Goyal only asked about the Plavix (R: 1554) and no discussion occurred regarding the aspirin. Dr Charash opined that “if the “addendum” written by defendant Goyal is accurate and Dr. D’Agate told defendant Goyal that he could with hold the anti- platelet therapy for 10-12 days prior to the procedure and 2-3 days after the procedure, that advice would have been a departure from good and accepted practice. Dr. Charash explained, quoting Dr. Shani, “Plavix and aspirin retain approximately 70% of their effects three days after discontinuance.” (R: 2735) with holding this anti- platelet therapy for longer than that three (3) day period invites the formation of a thrombosis, which is what happened under the facts of this case. (R: 2735-2736). 19 Dr.Torelli and SouthShore Family Practice Assoc., P.C’s Summary Judgment Motion Thomas J. Burns first treated with defendant Torelli on or about April 22, 1999 (R:832,909). Defendant Torelli sent Mr. Burns for an EKG, UA, CBC, testing with Lab Corp. (CMP, UPID, PSA) after doing a physical exam. Refills for Ziac 2.5 mg qd were prescribed. A week later Mr. Burns was notified of elevated cholesterol. He was directed to diet and exercise (R:909 R:833-834). Mr. Burns was next seen February 14, 2000 (R:921,834) by defendant Torelli for a blood pressure check and medication refills (R:921,834). Mr. Burns was next seen by defendant Torelli on February 28, 2000 for blood work and cholesterol medicine (R:836,920). Dr. Walsh (Dr. Torelli’s partner) saw Mr. Burns the next day for diet counseling (R:837). Mr. Burns is next seen April 10, 2000 for fasting blood work. Mr. Burns was also referred to a Vascular Surgeon (Dr. LaRosa)(R:838-840,929). Mr. Burns was also told to take vitamins C and E and Lipator was recommended. Mr. Burns returned to discuss the results of his blood tests on April 21, 2000 (R:928). Mr. Burns was next seen by Dr. Walsh on August 15, 2000. Again his prescription for Ziac was renewed (R:842-843,911). Mr. Burns was next seen on November 15, 2001 where again his blood was tested and prescriptions for Lipitor and Ziac were renewed (R:913). Dr. Walsh saw Mr. Burns on January 9, 2001 20 (R:843,912). Dr. Walsh saw Mr. Burns next on June 4, 2002 and again his prescriptions were renewed for Lipitor and Ziac. (R:846,907). The next visit is July 6, 2006. (R:847,925). Mr. Burns had suffered his heart attack in 2003, Dr. Patel did an angioplasty with the insertion of stents (6 according to note R:925 and R:848). Mr. Burns was now on Crestor, Alsace, Toprol, HCTZ, Plavix and ASA (R:925). The next visit by Mr. Burns was August 31, 2006 (R:853,926) for left elbow and wrist pain. Elevated cholesterol was also noted. Blood tests were ordered (R:854,926). After testing, Mr. Burns returned on September 13, 2006 for an explanation of the blood tests. Elevated glucose was noted and an A1C test was ordered (R:854-855,927). The next visit by Mr. Burns was with Dr. Walsh on March 12, 2007. Mr. Burns requested that his prescriptions be renewed and blood work ups were directed. In the interim Mr. Burns was referred to Dr. Ramore (Rheumatologist) who ordered blood work ups and sent the results to defendant Torelli (R:861-64). The next visit to defendant Torelli was February 28, 2008 regarding a possible hernia and to renew his medications (R:865,915). A “focused” examination was done by defendant Torelli and a possible hernia was the early indication (R:866). Mr. Burns was referred to Dr. Wodicka , a laproscopic hernia surgeon (R:867-868). After being told of a triple hernia by Dr. Wodicka, 21 defendant Torelli worked up “lab abnormalities” and pelvic sonogram (R:870- 871). It was reported back to defendant Torelli “The echogenic density associated with the posterior wall of the gall bladder may represent tumefactive sludge. But the findings could represent an intrinsic gall bladder mass. Ultra sound follow-up is recommended if conservative management is elected.” There was also a negative pelvic ultrasound study (R:871). Further testing was ordered by defendant Torelli (R:872). Defendant Torelli next saw Mr. Burns on April 8, 2008. Under chief complaints, medical clearance for hernia surgery was listed. Defendant Torelli needed to “review what was going on and you have to sign a form for Southside” (R:875). Because of a worsening of Kidney function (elevated BUN and acute renal failure), Mr. Burns was sent “stat” to Dr. Goyal by defendant Torelli. Blood work was also ordered “stat” (R:876). On April 9, 2008, defendant Torelli was notified by PC (phone call) by defendant Goyal that he changed the drug Altace (discontinued) to Hydralzine and Crestor (discontinued) to Lipitor (R:876,916). Under DX, renal failure, hypertension, elevated cholesterol and micohematuria was noted. Further testing was ordered (R:878). 22 Defendant Torelli admitted receiving the clearance letter dated March 25, 2008 addressed to defendant Torelli, which was reviewed by a physician’s assistant (Jennifer) (R:878). Defendant Torelli also admitted receiving the June 2, 2008 letter from Dr. D’Agate also addressed to defendant Torelli and carbon- copied to defendant Goyal (R:882-83). This letter was also reviewed by a physician’s assistant (Jennifer) (R:880). LEGAL ARGUMENT The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animals V. Associated Fur Mfrs. 46 NY 2d 1065, 416 NYS 2d 790 [1979] Sillman V. Twentieth Century-Fox Film Corporation 3NY2d 395, 165 NYS 498 [1957]. The movant has the initial burden of proving entitlement to summary judgment (Winegrad V. N.Y.U Medical Center 64NY2d 851 487 NYS 2d 316 [1985]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad V. N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form… and must “show facts sufficient to require a trial of any issue of 23 fact (CPLR 3212[b], Zuckerman V. City of New York 49 NY 2d 557, 427 NYS 2d 595[1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth are real and capable of being established (Castro V. Liberty Bus Co. 79AD2d 1014, 435 NYS 2d 340 [2d Dept. 1981]). Dr. Patel and Suffolk Heart Group, LLP. The Supreme Court correctly found that plaintiff’s expert raised factual issues regarding the care and treatment of decedent Thomas J. Burns by defendants Patel and Heart Group. A) The initial argument by Suffolk Heart advanced by Dr. Shani, their expert, is that the standard of care in 2008 only required that antiplatelet therapy be prescribed for one year following coronary stenting to help prevent stent thrombosis. In opposition, plaintiff’s expert, Dr. Bruce D. Charash, a specialist in Cardiology and Board Certified in Internal Medicine (1984) and Cardiovascular Disease (1987)(R:2727) stated that Dr. Shani’s position does not apply to the facts of this case (R:2734). Dr. Charash disagreed with the standard of care as set forth by Dr. Shani and disagreed with his “one-size-fits-all” medical approach. It is clear from the facts as set forth throughout the record that Mr. Burns was more than three years out of his last stenting, yet defendant Patel kept Mr. Burns on anti- platelet therapies of Plavix and aspirin. It is clear to Dr. Charash that both cardiologists (Dr.Patel and Dr. D’Agate) recognized that Mr. Burns was at an 24 unreasonable increased risk of harm should he remain off of Plavix for too long a period of time (R:2734). This was confirmed by both letters sent first by defendant Patel dated March 25, 2008 (R:809-10) wherein defendant Patel recommended that Plavix may be held for a few days prior to surgery… however, it should be resumed post surgery and second by Dr. D’Agate dated June 2, 2008 wherein Dr. D’Agate confirmed it was safe to hold antiplatelet therapy prior to undergoing renal biopsy, however, he should have prompt reinitiation of antiplatelet agent (R:822). It is clear Mr. Burn’s cardiologists wanted him to continue the antiplatelet therapy more than one (1) year after stenting. It was apparent to Dr. Charash that any unreasonable interruption of that therapy put Mr. Burns in harm’s way. It was also clear to Dr. Charash that Mr. Burns was not someone who fit neatly into a “guideline” and the guideline merely served as a minimum, not a maximum, treatment which must be determined in each patient (R:2733-34). The conflicting medical opinions present a triable issue of fact as to what the standard of care was in 2008 regarding the length of time for the use of antiplatelet therapies. Therefore, summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions Graham V. Mitchell 37AD3d 408, 829 NYS 2d 628 (2d Dept. 2007) (citing shields V. Baktidy 11AD 3d 671, 672 (2004) Barbuto V. Winthrop University Hospital 305 AD 2d 623, 624 [2003].) Such credibility issues can only be resolved by a 25 jury. Graham V. Mitchell, supra. (citing Shields V. Baktidy supra; Halkias V. Otolarynogoly – Facial Plastic Surgery Assoc. 282 AD 2d 650 [2001]). B) Dr. Charash also disagreed with Dr. Shani’s opinion that the autopsy (which showed no acute clot inside of Mr. Burns’ coronary artery) is inconsistent with Mr. Burns dying because of being off of Plavix. Dr. Charash stated his rationale for arriving at his conclusion that Mr. Burns, with a reasonable degree of Medical certainty, died because he had not been taking Plavix for several days, including the time of his death. Because he was not taking Plavix, Mr. Burns was vulnerable to the very thing from which Plavix had been protecting him; which was formation of an acute thrombus (clot) within one of his coronary arteries, at the site of his drug eluting stents (R:2734-2735). It is clear being off of Plavix incurs the risk of heart attack and/or sudden cardiac death. Dr. Charash also opined based on the autopsy and the documents reviewed (R:2727) that it was clear that Mr. Burns died from an arrhythmia caused by an acute clot at the site of one of his imbedded DES (R:2735). Dr. Charash further explained that just because a clot was not present on autopsy does not mean it did not exist. Fifty (50%) percent of people who form an acute clot inside one of their coronary arteries will not have it seen on autopsy. Dr. Charash, a specialist in Cardiology who is Board Certified in Cardiovascular Disease since 1987 is certainly qualified to render the above opinions. 26 This case is not analogous to Moore V. NY Med. Grp, P.S. 44AD 3d 393 (1st Dept 2007) where the Court found a lack of factual support for the Expert’s General Medicine opinion. The record is clear that Mr. Burns had coronary heart disease since his 2003 heart attack (R:2460) and this disease continued to his death (R:2718,2719-2725) and that his clinical situation of 100% occlusion at the time of his heart attack in 2003, with angioplasty and stenting, the 2005 angiogram confirming three (3) vessel coronary disease (LAD, LCX and RCA), decreased left ventricular ejection fraction of 50%, and additional stenting into the ostial, mid and proximal right coronary artery all confirmed Mr. Burns’ disease. Dr. Charash’s opinions are grounded in the facts of this case. C. Defendants Patel and Heart Group ignore plaintiff’s further arguments regarding the advice given by defendant Patel and Dr. D’Agate. If defendant Goyal is correct in his memorialization of his conversation with Dr. D’Agate, (i.e. that the anti-platelet therapy could be withheld for 10-12 days prior to the procedure and 2-3 days after the procedure (R:430,488) in the “addendum”) then the advice given by Dr. D’Agate is a departure from good and accepted practice. Dr. Charash explains that (agreeing with Dr. Shani) that the anti-platelet therapies (Plavix and aspirin) retain approximately 70% of their effects three (3) days after discontinuance. Withholding this anti-platelet therapy for longer than three (3) days invites the formation of a thrombosis, which is what happened under the facts 27 of this case (R:2735-36). At the very least, Dr. D’Agate and defendant Goyal disagree on a material issue of fact requiring a trial of the issue. Alverez V. Prospect Hospital 68 NY 2d320. Dragotta V. Southampton Hosp 39 AD3d 697, 833 NYS 2d 638 (2d Dept. 2007). Dr. Charash also opines that the direction that withholding Plavix “…a few days” is vague at best and does not give sufficient direction to whoever was scheduled to do the procedure. Defendant Patel misses the mark when he states that Dr. Charash was “woefully incorrect” because he gave no such direction to decedent or anyone else. The direction Dr. Charash is discussing is the direction to withhold Plavix a few days, not the alleged direction of Dr. D’Agate to defendant Goyal and Mr. Burns stated above (10-12 days prior and 2-3 days post procedure). In Dr. Charash’s opinion, the vague direction by defendant Patel is a departure from good and accepted practice. Failure to refute these arguments requires denial of a summary judgment motion. (Alvarez V. Prospect Hospital 68 NY2d 320, 508 NYS 2d 923 [1986]). D. It is clear that Mr. Burns relied on the advice of defendant Goyal and D’Agate. Plaintiff Mrs. Burns, recalling her conversations with her husband, decedent Thomas J. Burns, stated (R:164-165); Q. So your husband basically told you that Dr. Goyal indicated to him 28 that they were abnormal test results and he was recommending a kidney biopsy. Is that the sum and substance? A. Pretty much, yes. Q. Do you recall any other details from that conversation? A. That they had to schedule the appointment to do the biopsy he had to come off his medications for a couple of days prior to doing the biopsy so he wouldn’t bleed out. Q. Do you recall who told him that? A. Dr. Goyal. And again, Mrs. Burns testified (R:198-199); Q. Prior to the kidney biopsy, did anyone instruct your husband to discontinue any medications? A. Yes. He told me he had to come off all of his meds three days prior to the biopsy. Q. Who told your husband that? A. I believe it was Dr. Goyal. Mrs. Burns further stated; (R:201-202); Q. Going back to the kidney biopsy, did you ever become aware of that biopsy? A. It never took place. 29 Q. You mentioned your husband was instructed to discontinue medications was it three or four days prior to the biopsy? A. At least three days prior to the biopsy. Q. Did your husband in fact discontinue medications? A. Yes. Mrs. Burns also stated that Mr. Burns never reinitiated his medications; (R:203) Q. After your husband discontinued the medication in anticipation of the kidney biopsy which never occurred, did your husband ever resume any medications prior to his passing? A. Not to my knowledge. Q. Was he instructed by anyone to resume his medications after the cancelled kidney biopsy? A. Not to my knowledge. It is uncontraverted that Mr. Burns was present during the telephone conversation between Dr. Goyal and Dr. D’Agate (R:429) Q. What did you discuss with Dr. D’Agate? A. In order to do the biopsy we need to keep the patient off anti- platelet drugs. Q. Now, was that a conversation that you had on the telephone with Mr. Burns present? 30 A. From what I remember, yes. Mr. Burns received the direction from defendant Goyal and Dr. D’Agate to stop his medications, which he did. Mr. Burns relied on the advice of Dr. D’Agate which was based on the office record (prior clearance by defendant Patel for the hernia surgery) and discussions with defendant Goyal regarding his present condition (on the day of the telephone call). Relying on the advice, Mr. Burns stopped his Plavix three days prior to the surgery and never resumed the same prior to his death. Dr. Charash opined that Mr. Burns died from an arrhythmia caused by an acute clot formation at the site of one of his imbedded DES. Further, Mr. Burns died because he had not taken his Plavix for several days including at the time of his death (R:2734-35). As can be seen above, there was ample basis for the lower Court’s finding that the motion for summary judgment on behalf of defendants Dr. Patel and Heart Group should be denied. Dr. Michael Torelli and Family Practice The Supreme Court correctly found that the affirmation in support of defendant Torelli and defendant Family Practice was conclusory and that material issues of fact exist precluding summary judgment. 31 A. The Supreme Court correctly found that the affirmation in support of defendant Torelli and defendant Family Practice is wholly conclusory, and unsupported with the standard of care and treatment for the medical treatment rendered to the decedent by Dr. Torelli and the South Shore defendants. The Lower Court listed at least five (5) failures on the part of the defendants’ expert to specify the standard of care and whether the defendants deviated from that standard. The proponent of summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animals V. Associated Fur Mfrs. 46 NY2d 1065, 416 NYS 2d 790 [1979]); Sillman V. Twentieth Century- Fox Film Corporation 3NY2d395, 165 NYS 2d 498 [1957]). The movant (defendants Torelli and Family Practice) has the initial burden of proving entitlement to summary judgment (Winegrad V. NYU Medical Center 64NY2d851 487 NYS 2d316 [1985]). Failure to make such a showing requires denial of the motion (Winegrad V. NYU Medical Center supra). As noted by the Supreme Court, defendant’s expert failed to set forth the standard of care and treatment provided to the decedent by defendants’ Torelli and the South Shore defendants (R:17). Dr. Garbitelli initially reviews all of defendant Torelli’s notes finding all his affirmative actions to be appropriate (R:1646-1655). 32 The departures from good and accepted practice opined by Dr. Charash (also Board Certified Internist) are that defendant Torelli and Family Practice failed to act when they had a clear duty to act (upon receipt of the June 2, 2008 letter from Dr. D’Agate). Nowhere in the affirmation does Dr. Garbitelli opine about the failure to act. Dr. Charash further opined that the failure to properly secure clearance prior to the biopsy was a departure. Again Dr. Garbitelli does no discuss this failure. Defendants Torelli and Family Practice instead of supplementing Dr. Garbitelli’s affirmation, reply to Dr. Charash’s opinions of departure by the submission of an affirmation of defense counsel. This affirmation (R:2738-2743) relies heavily on the case of Burtman V. Brown 97AD3d156, 945NYS 2d 673 (1st Dept 2012) and attempts to show that there is no duty for defendant’s Torelli and Family Practice to act. Contrary to the affirmation at paragraph 12, Burtman is not right on point. The plaintiff in the Burtman matter saw the defendant internist and primary care physician for the first time on August 4, 2005 for a check up (plaintiff was three (3) months pregnant under the care of votating group obstetrical practice). On September 20, 2005, one of the obstetricians noted a mass in the upper guardant of her abdomen. After testing, a “wait and watch” approach was adopted by the obstetricians. They did not attempt to remove the mass while plaintiff was 33 pregnant because there was “no concern” as to the mass. The plaintiff saw the primary care physician in January, 2006 after she fell and sprained her ankle. Plaintiff was referred to a physical therapist. The Court held the primary care physician’s duty did not extent to the mass found. Unlike Burtman defendant Torelli and Family Practice are not being criticized for lack of treating the kidney issues nor even the hernia issue. Defendants Torelli and Family Practice are being criticized for failure to act regarding a situation they were intimately familiar with, after treating Mr. Burns for more than nine (9) years. As set forth in section B below, under the circumstances of this case, defendants Torelli and Family Practice owed a duty of care to Mr. Burns. The facts show defendants Torelli and family Practice were involved in the monitoring of his prescribed drugs and the securing of medical clearance for the anticipated surgical procedures, both the hernia surgery and the anticipated biopsy. Defendant Torelli was intimately involved in Mr. Burns’ care and treatment, not perrferally. Defendant Torelli was certainly aware of the need for quick action, having ordered both the referral to defendant Goyal “stat: and the additional blood work ups “stat” (R:876). Defendant Torelli was aware of Mr. Burns’ worsening condition (R:876). Defendant Torelli and Family Practice’s reaction to Mr. Burns worsening condition was to ignore the June 2, 2008 letter 34 and take no action whatsoever. Their inaction was a clear departure from accepted care and practice. The affirmation in Support of the defendants’ motion is wholly insufficient and the Court correctly denied the defendants’ motion for summary judgment. The Lower Court Correctly Found Material Issues of Fact. B. Plaintiff’s expert Dr. Charash opined that is departure from good and accepted practice when defendant Torelli (and/or Family Practice) ignored or failed to act when he received the June 2, 2008 letter addressed to him. Further, the failure to secure cardiac clearance prior to the biopsy was also a departure from good and accepted practice. Defendant Torelli and Family Practice clearly had a physician-patient relationship with Mr. Burns. Mr. Burns had been treated by defendant Torelli and South Shore since 1999 and defendant Torelli was intimately involved in Mr. Burns’ care and treatment in and around his untimely demise (Tom V. Sundaresan 107 AD 3d 479 1st Dept 2013). Defendant Torelli was the referring physician to Dr. Wodicka for the Hernia Surgery. The presurgical letter from Dr. Patel dated March 25, 2008 was addressed to Dr. Torelli and included directions with regard to the antiplatelet therapies (R:798-799). Letters dated December 9, 2003 (R:662-663) February 1, 35 2005 (R:721-722) and May 23, 2005 (R:731-732) are all addressed to Michael Torelli MD and are part of his office records. The letters warn of the need to keep Mr. Burns on Plavix for long term and that he has a right coronary artery 100% occluded (R:663), that he has an occluded RCA (R:722) and coronary heart disease. The need for Plavix is again reinforced in the May 23, 2005 letter. (R:731-732). Defendant Torelli and Family Practice were given copies or reports of any cardiac testing done. Anytime medications were prescribed, added or changed, defendants Torelli and Family Practice were notified (R:876). It was defendant Torelli who decided to put off the hernia surgery (R:879) and defendant Torelli, once notified of the kidney problems, ordered additional testing “stat” (R:876). Dr. Wodicka even thanked Dr. Torelli for the “opportunity to participate in the care of your patient” (referring to Mr. Burns) (R:2455-2456,2458) . All of the letters were received by defendant Torelli’s office and reviewed by “Jennifer” (a physician’s assistant) who looks to see if there’s any action that has to be taken (R:851,880). Her decision not to act upon receipt of the June 2, 2008 letter was a departure from good and accepted practice (R:2737). The “clearance letters” were also addressed to Dr. Torelli. The March 25, 2008 letter giving cardiac clearance for the hernia surgery gives specific direction to Dr. Torelli and South Shore Family Practice Associates, especially regarding Plavix, the withholding before and resumption post surgery (R:2454-2460). 36 In order to complete clearance, it was the responsibility of defendant Torelli to sign a form for Southside Hospital. While discussing his April 8, 2008 note defendant Torelli stated; (R:874-875) Q. Under chief complaints, medical clearance for hernia surgery? A. Correct. Q. 4/10/08 at Southside Hospital by Dr. Wodicka A. Correct Q. So the purpose of this visit was to get medical clearance from who, from you or from someone else? A. My portion was needed for this (indicating) Q.What was your portion? A. I guess to review what was going on and you have to sign a form for Southside. It is clear from the record when defendant Torelli and/or his office received the June 2, 2008 letter from Dr. D’Agate that he was aware of the emergent nature of the treatment and the need for direction based on all the above. There was a duty to act on behalf of defendant Torelli and/or Family Practice. It does not matter that defendant Torelli had referred Mr. Burns to one or more specialists. Plaintiff seeks to hold the defendants liable for their inaction, not the actions or inaction of other physicians. Ruddy V. Nolan 37AD 2d 694 (2d Dept 2007) citing Boone V. North Shore University Hosp at Forest Hills 12 AD3d 388 338-339 [2004]; Wasserman V. Staten Is Radiological Assoc 2AD3d 713 [2003] Markley V. Albany Med Ctr Hosp. 163 AD 2d 639, 639-640[1998]). CONCLUSION For the Fore going reasons, the order denying the motions for summary judgment for defendants Rakesh B. Patel, M.D, Suffolk Heart Group, LLP, Michael Torelli, MD and South Shore Family Practice Assoc., P.C should be affirmed. 37 Frank N. Ambrosino 548 West Jericho Turnpike Smithtown, N.Y 11787 (631) 724-4233 Attorney for Plaintiff Barbara Bums, Individually And as Executrix of The Estate of Thomas J. Bums APPELLATE DIVISION: SECOND DEPARTMENT CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 670.10.3(f) that the foregoing brief was prepared on a computer using Microsoft 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, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 8,238. Dated: Smithtown, NY May 13, 2015 38 Frank N. Ambrosino 548 West Jericho Turnpike Smithtown, N.Y 11787 (631) 724-4233 Attorney for Plaintiff Barbara Burns, Individually And as Executrix of The Estate of Thomas J. Burns