Barbara Burns,, Appellant,v.Sudhir Goyal, et al., Defendants, Rakesh B. Patel, et al., Respondents.BriefN.Y.Oct 10, 2017Tel: (631) 724-4233 FRANK N. AMBROSINO ATTORNEY AT LAW 548 W. Jericho Turnpike, Smithtown, NY 11787 Email: firstname.lastname@example.org Fax: (631) 724-4776 June 15, 2017 Hon. John P. Asiello Chief Clerk and Legal Counsel to the Court of Appeals 20 Eagle Street Albany, N.Y. 12207 Dear Mr. Asiello, Re: Burns v. Goyal APL-2017-00091 I represent Plaintiff Barbara Bums, individually and as Executrix of the Estate of Thomas J. Bums, decease (hereinafter Barbara Bums or Plaintiff). Pursuant to your correspondence of May 23, 201 7, I respectfully submit this letter brief in support of Plaintiffs' request that the decision of the Appellate Division be reversed and such other and further relief as the Court may deem just and proper. Preliminary Statement Plaintiff submits this letter brief in support of her appeal upon leave of the Court of Appeals decided May 9, 2017 from the order of the Appellate Division, Second Department entered in the office of the Clerk on the 9th day of May, 2017 that reversed the non final Order of the Supreme Court, Suffolk County (Hon. Jeffrey Arlen Spinner) dated July 23, 2014. Justice Spinner, denied, among others, the summary judgment motions of defendants Rakesh B. Patel, M.D. (hereinafter Dr. Patel), Suffolk Heart Group, LLP (hereinafter Heart Group), Michael Torelli, M.D. (hereinafter Dr. Torelli) and South ShoreFamily Practice Assoc., P.C. (hereinafter Family Practice). The Supreme Court Appellant Division, Second Department reversed the order of the Supreme Court as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them. In this medical malpractice action, decedent Thomas J. Bums (Mr. Bums) was under the care and treatment of Cardiologist Dr. Patel, a member of Heart Group for an unreasonably increased risk of harm due to his cardiac condition, which included an acute anterior wall myocardial infarction in 2003 with the placement of multiple stents in the left anterior descending artery. Dr. Patel prescribed Plavix for the long term. Thereafter in 2005, an angiogram indicated three (3) vessel coronary artery disease 2 (LAD, LCX and RCA), a decreased left ventricle ejection fraction of 50%, elevated left ventricular and diastolic pressure, with the placement of three (3) additional stents in the ostial, mid and proximal right coronary artery. Mr. Bums was also under the care and treatment of Dr. Torelli and Family Practice since April, 1999. In 2007, Mr. Bums consulted with Dr. Torelli regarding a possible hernia. Mr. Bums was referred to Dr. Wodika for surgical repair of the hernia, but the presurgical medical clearance turned up decreased kidney function. Mr. Burns was referred by Dr. Torelli to defendant Nephrologist Dr. Goyal who recommended a kidney biopsy. As part of the presurgical clearance for the kidney biopsy, Dr. Goyal requested cardiac clearance . When Mr. Bums was unable to secure the requested clearance, Dr. Goyal, in the presence of Mr. Bums, telephoned Dr. Patel. When Dr. Goyal was told that Dr. Patel was not present, he asked for another doctor to speak with him. Dr. D' Agate, another cardiologist at Heart Group, got on the telephone with Dr. Goyal and conveyed to Dr. Goyal (confirmed by letter dated June 2, 2008) that it was safe to hold anti-platelet therapy prior to undergoing renal biopsy, however he should have prompt reinitiation of anti-platelet agent. Mr. Bums stopped his Plavix on June 3, 2008 in anticipation of a June 6, 2008 kidney biopsy. Unfortunately, the kidney biopsy was canceled and, on June 7, 2008, Mr. Bums died from an 3 arrhythmia caused by an acute clot formation at the site of one of his imbedded DES. Jurisdictional Statement By Order Decided and Entered on the 9th day of May, 201 7, the Court of Appeals granted Plaintiff-Appellant's motion for leave to appeal to the Court of Appeals. Question Presented for Review Whether issues of fact precluded granting summary judgment to defendants Dr. Patel, Heart Group, Dr. Torelli and Family Practice. Statement of Facts In this medical malpractice action, plaintiff Barbara Bums has asserted causes of action for the pain and suffering and wrongful death of her husband Thomas J. Bums, decedent, as well as a derivative action for pecuniary loss. On or about October, 2003 decedent Thomas J. Bums suffered an acute anterior wall myocardial infarction. The medical records confirm that Rakesh B. Patel, M.D. (Dr. Patel) performed an emergency angioplasty at Southside Hospital with the placement of multiple stents ( 4) in the left anterior descending artery (R601-822). According to Dr. Patel, 4 Mr. Bums died four (4) times (R509-510) during the procedure. It was noted that the right coronary artery was 100% occluded. Upon discharge five (5) days later, Dr. Patel prescribed Plavix, Toprol, Ramipril, Zetia, Zocar and Imdur. Mr. Bums was also directed to take aspirin daily. By letter dated December 9, 2003 (addressed to Dr. Michael Torelli), Dr. Patel recommended that Mr. Bums stay on Plavix for long term (R662-663). The continuation of Plavix was confirmed by letter dated May 23, 2005 (addressed to Dr. Torelli) (R731-732). On or about May 26, 2005, an angiogram indicated three (3) vessel coronary disease (LAD, LEX and RCA), a decreased left ventricular ejection fraction of 50% and elevated left ventricular and diastolic pressure. Dr. Patel inserted three (3) additional drug eluting stents (DES) into the ostial, mid and proximal right coronary artery (R731-732). Mr. Bums was continued on Plavix and Aspirin. On or about February, 2008, Mr. Bums was diagnosed with a questionable triple hernia (bilateral inguinal and ventral). A surgeon (Dr. Wodicka) was consulted and laparoscopic surgery to repair the hernia was agreed upon (R988-989). As part of the pre-surgical clearance, Dr. Patel, by letter dated March 25, 2008 (addressed to Mr. Bum's primary care physician Dr. Michael Torelli) cleared Mr. Bums from a cardiac standpoint, but 5 cautioned that "If Plavix needs to be held for a few days prior to surgery, this will be safe. However, it should be resumed post surgery" (R990-991). Further pre-surgical testing revealed worsening kidney function and potential acute kidney failure. The hernia surgery was canceled by Dr. Torelli and he referred Mr. Bums to defendant Nephrologist Sudhir Goyal, M.D. (note: a summary judgment motion on behalf of Dr. Goyal was also denied in Supreme Court). A notice of appeal was filed by defendant Goyal but subsequently withdrawn) (R875-877). It was determined that a kidney biopsy was the recommended course and clearance for the renal biopsy was directed by Dr. Goyal. When Mr. Bums returned to Dr. Goyal's office unable to secure cardiac clearance from Dr. Patel, Dr. Goyal, in Mr. Bum's presence, telephoned Dr. Patel's office (R428-434). Because Dr. Patel was not present, Dr. D'Agate (another member of Heart Group) took the phone call. According to Dr. D' Agate's deposition testimony, Dr. Goyal and Dr. D' Agate discussed the need to take Mr. Bums off the Plavix so that he would not "bleed out" during the renal biopsy, and after reviewing Mr. Bums' chart (specifically the prior clearance letter of Dr. Patel dated March 25, 2008), Dr. D' Agate approved of Mr. Bums be taken off the Plavix for a short time prior to the kidney biopsy (R1542-1543). By letter dated June 2, 2008 (addressed to Dr. Torelli and cc'd to Dr. Goyal), Dr. D' Agate, writing about Mr. Bums, confirmed that " .. .it is safe to hold anti-platelet therapy 6 prior to undergoing renal biopsy, however, he should have prompt reinitiation of anti-platelet agent ... " (R2717). Pursuant to the direction of Dr. Goyal, Mr. Bums stopped his Plavix on June 3, 2008. Unfortunately, the renal biopsy scheduled for June 6, 2008 was canceled. No health care provider ever instructed Mr. Bums to reinitiate his anti-platelet therapy. On June 7, 2008, Mr. Bums expired. It is Plaintiffs expert's opinion with a reasonable degree of medical certainty that Mr. Bums expired from an arrhythmia caused by an acute clot formation at the site of one of his imbedded DES due to the absence of anti-platelet agents in his system (R2735). Supreme Court Order On July 24, 2014, the lower Court (Justice Jeffrey Arlen Spinner) denied the motions for summary judgment made by Sudhir Goyal, M.D., Suffolk Nephrology Associates, P.C., Rakesh B. Patel, M.D., Suffolk Heart Group, LLP. Michael Torelli, M.D. and South Shore Family Practice Assoc. P.C. All of the above named defendants filed notices of appeal to the Appellate Division, Second Department. Defendant Sudhir Goyal, M.D. and Suffolk Nephrology Associates, P.C. subsequently withdrew their notices of appeal. 7 Appellate Division Second Department The Appellate Division Second Department reversed the decision of the Supreme Court by Order dated December 28, 2016. The Appellate Division wrongfully relied on the testimony of expert Jacob Shani, M.D., who opined that the standard of care regarding decedent Thomas J. Bums was to prescribe anti-platelets, Plavix and Aspirin, for one ( 1) year following coronary stenting to help prevent stent thrombosis. The expert reasoned, since the last stenting was in 2005, more than one (1) year had expired and therefore the decedent did not need to be on Plavix and Aspirin in 2008. Since he didn't need to be on the Plavix and Aspirin in 2008, it was not a departure from good and accepted practice to withhold anti-platelets prior to a scheduled surgery for any length of time (R2199). In opposition to the above argument, Plaintiff relied on the testimony of expert Bruce Charash, a Specialist in Cardiology, Board Certified in Internal Medicine (1984) and Cardiovascular Disease (1987). Dr. Charash opined that Dr. Shani's reliance on the "Guidelines" (which state that Plavix and Aspirin need only be continued for one year) was misplaced. The guidelines are general principles which must be applied to individual cases, based on the patient's individual outcome and residual anatomy after angioplasty and stent replacement. The "one-size fits all" approach suggested by Dr. Shani does not apply to Mr. Bums. Dr. Charash agreed 8 with the standard of care as noted by Drs. Patel and D' Agate that Mr. Bums needed to be on anti-platelet therapy indefinitely, that he could be taken off the anti-platelet therapy for "a few days prior to surgery", however "he should have prompt reinitiation of anti-platelet agent" (R2733-2737). Please note Dr. D' Agate confirmed that the standard of care regarding the prescribing of anti-platelet agents is on a case-by case basis. As stated by Dr. D' Agate in his deposition testimony, "Even in 2008, after a year, you know -- you know, it's a case-by case basis, and it's not an easy decision to make. But even back in 2008 many times we would stop the Plavix after a year with drug-eluting stents" (Rl 562). The Appellate Division Second Department also gratuitously noted: "the expert also stated that Plavix and Aspirin retain approximately 70% of their effects three days after discontinuance". Plaintiffs expert, Dr. Charash disagrees with Dr. Shani's opinion and contrary to Dr. Shani's opinion, stated "Withholding 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" (R2735-2736). Dr. Charash further opined "within a reasonable degree of medical certainty Mr. Bums died because he had not been taking his Plavix for several days, including at the time of death. Because he was not taking Plavix, Mr. Bums was vulnerable to the very thing from which Plavix had been protecting him; which was the 9 formation of an acute thrombosis (clot) within one of the coronary arteries, at the site of one of the drug eluting stents" (R2734-2735). The Appellate Division, Second Department decision also wrongfully states the plaintiffs expert cardiologist's opinion was "conclusory". Dr. Charash formed his opinion (his conclusion) based on the entire record including "the plaintiffs complaint, bill of particulars, depositions of the parties, Southside Hospital medical records, Island Surgical Vascular Group records, Suffolk Nephrology Associates, P.C. records, South Shore Family Practice Assoc. P.C. records and the expert Affirmations in support of the pending motions for Summary Judgment" (R2727-2728). Dr. Charash agreed with the treating Cardiologists, Dr. Patel and Dr. D' Agate, the persons most familiar with decedent's residual anatomy after their angioplasty and stent placement; "Mindful of this, it is clear from a review of the records that defendant Patel reached the medical decision that Mr. Bums, individually, required an indefinite course of Plavix and Aspirin; certainly for more than the one (1) year period of time that Dr. Shani suggests in the one-size-fits-all medical approach." Dr. Charash notes that both Drs. Patel and D' Agate recognized that Mr. Bums was at an "unreasonably increased risk of harm should he remain off the Plavix for too long a period of time" (R2734). Dr. Charash notes that Dr. Shani's position 10 regarding the "Guidelines" is starkly contradicted by the very doctors who were actually responsible for Mr. Bum's medical care (R2734). The Appellate Division, Second Department also wrongfully concluded that Dr. Charash failed to articulate why a four-day interruption in the Plavix prescription would have been a danger to the decedent. Dr. Charash clearly articulated that "within a reasonable degree of medical certainty Mr. Bums 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. Bums was vulnerable to the very thing from which Plavix had been protecting him; which was the formation of an acute thrombosis clot within one of the coronary arteries at the site of one of his drug-eluting stents" (R2734-2735). Withholding 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 (R2735-2736). The Appellate Division Second Department also wrongfully made the determination that Dr. Torelli had no duty to decedent regarding his Plavix prescriptions. The Appellate Division Second Department further made the determination that the question of whether a duty is owed by a physician to a patient is a question for the Court. It is respectfully submitted that the Appellate Division Second Department erred in the conclusion that the Dr. Torelli owed no duty to Mr. Bums regarding the Plavix prescription. 11 It is uncontested that both the letters regarding the discontinuance of Plavix with prompt reinitiation are addressed to Dr. Torelli and that his office received and reviewed the letters (R2419) (R2716). It is also uncontested that Southside Hospital requires a form to be signed by the primary care physician approving medical clearance prior to surgery (R875). The Appellate Division Second Department wrongfully concludes, in essence, that a physician may choose to ignore letters they receive regarding a patient they have been caring for at least ten (10) years. They may simply choose not to treat a longstanding patient and will not be held responsible. As in the instant case, the primary function of the primary care physician is to coordinate the patient's care and treatment, especially as it relates to a patient with various specialists treating at one time (cardiologists and nephrologists and/or surgeons). Plaintiff's expert opined that it was a departure from good and accepted practice for Dr. Torelli to ignore and fail to act when he received the June 2, 2008 letter, especially when the letter warned of the importance of prompt reinitiation of the anti-platelet agent. Plaintiff's expert also opined that it was a departure from good and accepted practice to allow the renal biopsy to proceed without cardiac clearance (Dr. D' Agate specified he was not giving cardiac clearance, only advice about the Plavix (R1553-1554) (R2736-2737). 12 There also exists a question of fact regarding who wrote the prescriptions for Plavix in or around 2008. Plaintiff/respondent believes it was Dr. Torelli (R914-918) and when asked at deposition whether he wrote the prescriptions, he stated "If he, you know, is out of something and requests that, we could" (R853). It is respectfully submitted Dr. Torelli has a duty to monitor those drugs he prescribes for a patient. Dr. Torelli's treatment of Mr. Bums defines his duty to Mr. Bums. Argument The proponent of a summary judgment motion must make 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 (Stonehill Capital Management, LLC v. Bank of the West 28 NY 3d 439, 448(2016) ), quoting Alvarez v. Prospect Hospital 68 NY 2d 320, 324 (1986), Friends of Animals v. Associated Fur Mfrs. 46 NY 2d 1065, 416 NYS 2d 790 1979, Sillman v. Twentieth Century-Fox Film Corporation 3 NY 2d 395, 165 NYS 2d 498 (1957) ). The movant has the initial burden of proving entitlement to summary judgment. (Winegrad v. NYU Medical Center 64 NY 2D 857, 487 NYS 2d 316 (1985) ). Failure to make such s showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. NYU Medical Center supra). Once such proof has been offered, the burden 13 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 fact ( CPLR 3 212(b ), Zuckerman v. City ofNew York 49 NY 2d 557, 427 NYS 2d 595 (1980) ). When deciding a motion for summary judgment, the facts must be viewed in the light most favorable to the [non-movant], and every available inference must be drawn in the [non-movant's] favor (Torres v. Jones 26 NY 3d 742 (2016) ). The court should engage in issue-finding rather than issue determination (Suffolk County Department of Social Services v. James M. 83 NY 2d 178 (1994) ). The Court should not invade the province of the Jury by weighing competing evidence. Accordingly, summary judgment is inappropriate in any case where there are material issues of fact in dispute or where more than one conclusion may be drawn from the established facts. (Friends of Thayer Lake, LLC v. Brown 27 NY 3d 1039 (2016) quoting Krim v. Schum 25 NY 2d 25). Dr. Patel and Heart Group Contrary to the findings of the Appellate Division the standard of care regarding the prescribing of Plavix as espoused by Dr. Shani, is not to keep patients on Plavix for one year following the placement of stents pursuant to a published guideline. According to Plaintiffs expert Dr. Charash, the 14 published general guideline was just that; they are meant to guide medical therapy; but not meant to be treated as rules. Guidelines establish general medical principles which must be applied to the facts of each individual case (R2733) ... Mindful of this, it is clear from a review of the records that Dr. Patel reached the medical decision that Mr. Bums, individually required an indefinite course of Plavix and aspirin; certainly more than the one ( 1) year period of time that Dr. Shani suggests is the one-size-fits-all medical approach (R2733-2734). Both Dr. Patel (see letter dated March 25, 2008 R2715-2716) and Dr. D' Agate (see letter dated June 2, 2008 R2717) clearly stated the standard of care for Mr. Bums regarding the anti-platelet therapy, Plavix. Dr. Patel writes, "If Plavix needs to be held for a few days prior to surgery, this will be safe, however, it should be resumed post surgery". Dr. D' Agate writes, " ... it is safe to hold anti-platelet therapy prior to undergoing renal biopsy, however, he should have prompt reinitiation of anti-platelet agent" (R2717). Dr. Charash agrees with both Cardiologists when he opines "within a reasonable degree of medical certainty, Mr. Bums died because he had not been taking his Plavix for several days, including at the time of his death (R2734). Because he was not taking Plavix, Mr. Bums was vulnerable to the very thing from which the Plavix had been protecting him; which was the formation of an acute thrombus (clot) within one of his coronary arteries, 15 at the site of his drug eluding stents (R2734-2735). "It is clear that Mr. Bums died from an arrhythmia caused by an acute clot formation at the site of one of his embedded DES (R2735). The Appellate Division also quoted Dr. Shani when he opines, "Plavix and Aspirin retain approximately 70% of their effects three days after discontinuance". In opposition to that opinion, Dr. Charash clearly states that "withholding this anti-platelet therapy for more than that three (3) day period invites the formation of a thrombosis, which is what happened under the facts of this case" (R2735-2736). Clearly the contrary opinions raise triable issued of fact and the Appellate Division erred in accepting Dr. Shani's opinion despite the contrary opinion of Dr. Charash. Certainly, the above quoted testimony viewed in the light most favorable to plaintiff (non-moving party) raises a material triable issue of fact. The Appellate Division failed to engage in issue finding, and instead, wrongfully determined the above issues. Dr. Torelli and Family Practice The Appellate Division wrongfully found that Dr. Torelli played no role in treating the decedent for his heart issues. Contrary to the above finding, it is clear that Dr. Torelli treated decedent for nine (9) years and prescribed the Plavix that is in question. (R914-917). On February 28, 2008, the patient progress note states under Chief Complaint/HPI/ROS: 16 Renew Medications ... Under medications, the 7th medication noted is "Plavix 75 mg" (R915). On the March 12, 2008 Patient Progress Note under Chief Complaint/BPI/ROS: Refill on meds. Under medications, the 6th medication noted is Plavix (R914). On the March 18, 2008 Patient Progress Note the 7th medication noted is Plavix (R9 l 7). On the April 16, 2008 Patient Progress Note, the 5th medication listed is Plavix (R916). While Dr. Patel may have initially prescribed the Plavix, Dr. Torelli was the prescribing physician as late as March 12, 2008. The letters from the specialist cardiologists (R2715-2717) were addressed to Dr. Torelli, reviewed by Dr. Torelli's office (R85 l) yet no action on either of the letters was taken by Dr. Torelli's office. Dr. Torelli was Mr. Bums' primary care physician from April 22, 1999 (R832) until Mr. Bums' demise on June 7, 2008. Dr. Torelli prescribed the Plavix (the drug in question), received letters from two cardiologists warning that the Plavix was safe to hold a few days, but it should be resumed post surgery (R2716) and should have prompt reinitiation of anti-platelet agent. Dr. Torelli and his office were aware of the danger to their patient. Dr. Torelli and his office chose to take no action, much to Mr. Bums' detriment. Burtman v. Brown 97 AD 3d 156, 945 NYS 2d 673 (AD 1st Dept 2012) is particularly informative regarding the duty of care of Dr. Torelli. 17 Burtman distinguishes Daugharty v. Marshall 60 AD 3d 1219, 875 NYS 2d 621 (3rd Dept 2009) by pointing out that two (2) visits hardly defines a duty but that thirteen (13) years of treatment for various ailments (such as Mr. Bums who treated with Dr. Torelli for nine (9) years for numerous ailments) defines a duty. Dr. Torelli was prescribing Plavix to Mr. Bums and upon receipt of the above mentioned warnings regarding prompt reinitiation, chose to ignore the warning and never contacted decedent. While it is true that the cardiologists were treating Mr. Bums regarding his coronary disease, this does not mean that Dr. Torelli can ignore the warnings of the cardiologists, especially regarding a drug Dr. Torelli is prescribing. Dr. Torelli's duty to Mr. Bums was to warn him of being off of Plavix for too long a period of time. Having noted the duty, Dr. Charash correctly opined that Dr. Torelli departed from good and accepted practice by ignoring the letters received from the Cardiologists and wholly failing to act despite the warnings contained therein (R2737). Dr. Torelli cannot abdicate his responsibility for Mr. Burns' health care by claiming another health care provider is treating. Dr. Torelli saw Mr. Bums no less than four (4) times in his office (2/28, 3/12, 3/18 and 4/16) and referred him to two (2) specialists for treatment of the hernia and then the kidney failure. Certainly, Dr. Torelli was involved in Mr. Bums treatment and, at a bare minimum, had a duty to alert Mr. Burns to a potential threat to his health, even a potential threat to 18 his life. The negligence involved in this case is the failure of Dr. Torelli or his office to disclose to Mr. Bums the potential threat that both Dr. Patel and Dr. D"Agate conveyed to Dr. Torelli. The failure to warn Mr. Bums was a substantial contributing factor in Mr. Bums' demise. The question is whether Dr. Torelli owed a duty to Mr. Bums under the scenario of his treatment. As explained above, under Mr. Bums' scenario, Dr. Torelli owed Mr. Bums a duty and his failure to act is a departure from good and accepted practice (Burtman v. Brown supra, see dissenting opinion J. Tom). Conclusion For the foregoing reasons, this Court should reverse the Order of the Appellate Division, Second Department and deny the summary judgment motions of defendants Dr. Patel, Heart Group, Dr. Torelli and Family Practice and such other and further relief as this Court may deem just and proper. 19 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR PART 500.lG) and 500.ll(m) that the foregoing letter 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 letter, inclusive of point headings and footnotes and exclusive of pages containing the proof of service, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 4, 143 words. Dated: June 15, 2017 By:~ Frank N. Ambrosino, Esq.