Barbara Burns,, Appellant,v.Sudhir Goyal, et al., Defendants, Rakesh B. Patel, et al., Respondents.BriefN.Y.October 10, 2017To be Argued by: CHRISTOPHER SIMONE (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 RAKESH B. PATEL, M.D. AND SUFFOLK HEART GROUP, LLP CHRISTOPHER SIMONE GERARD S. RATH On the Brief SHAUB, AHMUTY, CITRIN & SPRATT, LLP Attorneys for Defendants-Appellants Rakesh B. Patel, M.D. and Suffolk Heart Group, LLP 1983 Marcus Avenue Lake Success, New York 11042 (516) 488-3300 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. {00942860.1} TABLE OF CONTENTS PRELIMINARY STATEMENT ..................................................................... 1 QUESTIONS PRESENTED ........................................................................... 3 STATEMENT OF FACTS .............................................................................. 4 A. Decedent’s Medical History ............................................................ 4 1. Decedent’s Longstanding Cardiac Issues ................................... 4 2. Decedent’s Collateral Abdominal And Renal Issues ........................................................................................... 5 3. Decedent’s Clearance To Discontinue Anti-Platelet Therapy ....................................................................................... 7 i. Clearance For Hernia Surgery ............................................... 7 ii. Clearance For Renal Biopsy .................................................. 7 4. Decedent’s Discontinuance of Medications ............................... 9 5. Decedent’s Death And Autopsy Findings ................................ 10 B. The Instant Action .......................................................................... 11 C. Suffolk Heart’s Summary Judgment Motion ................................. 11 D. Plaintiff’s Opposition ..................................................................... 13 E. Suffolk Heart’s Reply .................................................................... 13 F. The Order Appealed From ............................................................. 14 {00942860.1} ii ARGUMENT THE COURT SHOULD HAVE DISMISSED THE COMPLAINT AS AGAINST SUFFOLK HEART BECAUSE IT ESTABLISHED ENTITLEMENT TO SUMMARY JUDGMENT AND PLAINTIFF FAILED TO RAISE AN ISSUE OF FACT AS TO ANY ALLEGED DEPARTURE FROM ACCEPTED MEDICAL PRACTICE OR PROXIMATE CAUSE .................................................................................. 15 A. Applicable Law .............................................................................. 15 B. Suffolk Heart’s Advice On Withholding Anti-Platelet Therapy Was Not A Departure From Acceptable Medical Practice ............................................................................. 18 C. Plaintiff Neglected To Raise An Issue Of Fact On Departure ........................................................................................ 19 D. The Autopsy Report Confirms That Decedent’s Death Was Unrelated To The Discontinuation Of Plavix ........................ 22 E. Suffolk Heart’s Advice Is Not Actionable Under These Particular Circumstances ..................................................... 25 1. There Is No Evidence That Decedent Did Not Resume His Anti-Platelet Therapy After The Biopsy Was Canceled .............................................................. 27 2. There Is No Record Evidence That Any Advice Suffolk Heart Rendered About Withholding Anti- Platelet Therapy Was Relayed To Or Relied Upon By Decedent Or Dr. Goyal ...................................................... 27 3. Suffolk Heart Only Gave Advice About Withholding Anti-Platelet Therapy Before And After Surgery, Not In The Event The Biopsy Was Canceled .................................................................................. 29 CONCLUSION ............................................................................................. 30 {00938808.1} BRIEF FOR DEFENDANTS-APPELLANTS RAKESH B. PATEL, M.D. and SUFFOLK HEART GROUP, LLP PRELIMINARY STATEMENT In an action seeking damages for alleged medical malpractice and wrongful death, defendants Rakesh B. Patel, M.D. and Suffolk Heart Group, LLP (hereinafter collectively Suffolk Heart) appeal from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), entered July 29, 2014, as denied Suffolk Heart’s motion pursuant to CPLR 3212 for summary judgment dismissing the complaint as against it. The plaintiff’s decedent came under the care of Suffolk Heart in October 2003 when he had his first heart attack. Suffolk Hearth subsequently placed him on a blood thinning, anti-platelet therapy that included Plavix, meant to prevent artery blockage. In March 2008, the decedent presented to Suffolk Heart to obtain cardiac clearance for hernia surgery. Suffolk Heart sent a letter to the decedent’s primary care physician Dr. Torelli explaining that Plavix could be discontinued for a “few days” prior to surgery. The hernia surgery did not occur because the decedent needed a kidney biopsy that was ordered by his nephrologist, Dr. Sudhir Goyal. According to the plaintiff, the decedent discontinued taking Plavix on June 3, 2008, per Dr. Goyal’s instructions, in anticipation of the kidney biopsy {00938808.1} 2 that was to be performed on June 6, 2008. On June 5, 2008, the decedent advised the plaintiff that the kidney biopsy was canceled. Unfortunately, on June 7, 2008, the decedent was found unresponsive in bed and was later pronounced dead. An autopsy found the cause of death to be coronary artery disease, but noted no findings of a recent heart attack (myocardial infarction), only an “old infarct.” Rather, as Suffolk Heart’s expert explained, this showed that the decedent died from an electrical system failure in his heart, not a blockage. The motion court correctly found that Suffolk Heart established entitlement to summary judgment dismissing the complaint, but incorrectly determined that the plaintiff raised issues of fact. There are no issues of fact, as the plaintiff’s own expert failed to establish that Suffolk Heart departed from the applicable standard of care because he agreed that discontinuing anti-platelet therapy for two to three days prior is acceptable and the standard required this therapy for only one year, whereas the decedent was on it for several. The autopsy report, moreover, does not support the plaintiff’s contention that the decedent died because he allegedly discontinued taking Plavix as there was zero evidence of any recent infarct. To be sure, Suffolk Heart’s advice did not cause the decedent’s death, as there is no evidence that the decedent did not resume Plavix after the kidney biopsy was canceled, there is no evidence that Suffolk {00938808.1} 3 Heart’s advice was relayed or relied upon by Dr. Goyal, and Suffolk Heart was not asked to render advice in the event the kidney biopsy was canceled. Accordingly, the order appealed from should be reversed and Suffolk Heart’s motion for summary judgment dismissing the complaint as against it should be granted. QUESTIONS PRESENTED 1. Did Suffolk Heart establish entitlement to judgment as a matter of law? The Supreme Court correctly answered “yes” as the expert affidavit and the autopsy report confirmed that Suffolk Heart acted within the good and accepted standards of medical care and were not the proximate cause of what was a natural death based on the decedent’s long history of cardiac disease. 2. Did the plaintiff raise an issue of fact in opposition to Suffolk Heart’s summary judgment motion? The Supreme Court answered “yes”, despite that (a) Suffolk Heart did not deviate or depart from acceptable medical practices; and that (b) any alleged deviation or departure from acceptable medical practices did not cause the decedent’s death. {00938808.1} 4 STATEMENT OF FACTS A. Decedent’s Medical History 1. Decedent’s Longstanding Cardiac Issues Dr. Patel, who is board certified in internal medicine, cardiology, interventional cardiology, and cardiac nuclear medicine, first met the decedent on October 21, 2003 when he presented to Southside Hospital emergency with chest pains after collapsing while coaching his son’s soccer game (R: 245, 506, 510-512). While there, the decedent went into cardiac arrest, at which time Dr. Patel was the on-call cardiologist at the hospital (R: 510-511). The decedent was found to have a large anterior wall myocardial infarction (heart attack), during which the decedent died, but was resuscitated three or four times (R: 140- 141, 510-511). On that day, Dr. Patel successfully performed angioplasty and implanted a stent in the decedent’s left anterior descending coronary artery, which was 100% blocked, and Dr. Patel found 100% blockage in the decedent’s right coronary artery and diseased circumflex artery branches (R: 182, 512-513). Dr. Patel described a heart attack as a “clog in the artery which closes the artery completely and causes death of heart tissue” because it does not receive blood (R: 514-515). At that time, Dr. Patel also placed the decedent on Plavix and aspirin to thin his blood (R: 516). Dr. Patel attributed the decedent’s blockage in {00938808.1} 5 his heart to his age, being overweight, high cholesterol and cigarette smoking (R: 518). Smoking cigarettes inflames the arteries, lowers good cholesterol and causes the arteries to spasm, and high cholesterol causes inflammation, which results in the buildup of plaque (R: 519). On May 26, 2005, Dr. Patel performed additional cardiac procedures on the decedent (R: 559). In particular, he underwent a coronary angiogram1 and had a stent implanted in his right coronary artery, because he was complaining of chest pains (R: 560). The decedent continued to treat periodically with Dr. Patel through March 2006, but Dr. Patel did not see the decedent again until he presented on March 25, 2008 for “pre-op recertification prior to hernia surgery” (R: 568, 570). 2. Decedent’s Collateral Abdominal And Renal Issues In March 2008 Dr. Michael Torelli, the decedent’s longtime family medicine physician, diagnosed him with a possible hernia (R: 826-827, 865- 866). Dr. Torelli referred the decedent to Dr. Scott Wodicka, a laparoscopic hernia surgeon at Island Surgical and Vascular Group, who diagnosed the decedent with a possible triple hernia (R: 152-153, 867-869). On April 8, 2008, Dr. Torelli examined the decedent to clear him for the hernia surgery that was 1 An angiogram is an x-ray procedure that uses a special dye and camera (fluoroscopy) to take pictures of the blood flow in an artery or a vein. {00938808.1} 6 scheduled for April 10, 2008, but Dr. Torelli ceased the work-up because the decedent had elevated blood urea nitrogen and acute renal [kidney] failure (R: 874-875). The decedent was then “[s]ent stat to Dr. [Sudhir] Goyal” because his renal condition was worsening (R: 876). Dr. Torelli then put the hernia operation on hold (R: 879). On April 9, 2008, the decedent presented to Dr. Goyal, a nephrologist (kidney specialist), because of his worsening kidney function (R: 391-392, 876). The decedent was found to have “very” abnormal urine that required further testing for possible renal failure, including a renal biopsy, which Dr. Goyal discussed with the decedent at an April 25, 2008 office visit (R: 401-403, 420- 421). A renal biopsy was scheduled for Friday, June 6, 2008 (R: 437). Dr. Goyal ordered that the renal biopsy be performed by an interventional radiologist at Good Samaritan Hospital, which “arranges everything” (R: 437- 438). The biopsy, however, was never performed and Dr. Goyal did not know why (R: 446). Dr. Goyal found out that the decedent had died after he questioned “what happened to the biopsy” five to eight days after it was scheduled to occur (R: 447). {00938808.1} 7 3. Decedent’s Clearance To Discontinue Anti-Platelet Therapy i. Clearance For Hernia Surgery After not seeing Dr. Patel for two years, on March 25, 2008 the decedent presented to him for “pre-op recertification prior to hernia surgery” (R: 193-194, 570). After examining the decedent, Dr. Patel authored a letter to Dr. Torelli that stated that “[i]f Plavix needs to be held for a few days prior to surgery this will be safe, however, it should be resumed post surgery” (R: 2665). Dr. Torelli received this letter, which was reviewed by someone in his office named Jennifer (R: 878). He does not know if the substance of the letter was ever discussed with the decedent by someone from his office (R: 878). ii. Clearance For Renal Biopsy Dr. Goyal explained to the decedent that in order to have the renal biopsy “he needs the cardiac clearance and the risk of bleeding because of antiplatelets drugs”, and he told the decedent “to get cardiac clearance” (R: 421-422). Dr. Goyal “did not tell [the decedent] to stop at all,” but merely told him to talk to his cardiologist about stopping the anti-platelet therapy (R: 422-423). On May 29, 2008, the decedent again presented to Dr. Goyal who spoke by telephone with Dr. D’Agate, Dr. Patel’s colleague, with the decedent present, to discuss his cardiac clearance for the renal biopsy (R: 421, 428-430). Dr. Goyal authored an addendum to the decedent’s chart entry that day that {00938808.1} 8 memorialized the conversation with Dr. D’Agate (R: 429-430). Dr. Goyal noted in the addendum that “Dr. Patel notes that Plavix/aspirin can be held for ten to 12 days. Restart second or third day after biopsy” (R: 430). Dr. D’Agate, however, disputed that he told Dr. Goyal that the anti-platelet therapy could be discontinued for ten to twelve days (R: 1538-1542, 1552). On June 2, 2008, Dr. D’Agate authored a letter addressed to Dr. Torelli, and copied to Dr. Goyal, stating that the decedent (R: 1538-1542, 2717): is approximately three years out from his last stent and as per Dr. Patel’s last office letter, it is safe to hold antiplatelet therapy prior to undergoing renal biopsy, however, he should have prompt reinitiation of antiplatelet agent. Dr. Goyal, however, contended that he never received this letter (R: 431). Dr. Torelli did receive this letter, but it was, again, only reviewed by someone in his office named Jennifer (R: 880). According to Dr. Torelli, no one from his office was supposed to discuss with the decedent the substance of the letter (R: 880- 881). Dr. Torelli believed that “the people that were taking care of the renal biopsy” should have discussed the substance of the letter with him (R: 881). On June 3, 2008, Dr. Goyal wrote a prescription for a “CT guided renal biopsy” that was then scheduled for June 6, 2008 (R: 437, 2683). {00938808.1} 9 4. Decedent’s Discontinuance Of Medications The plaintiff testified that after the May 2008 visit with Dr. Goyal, she and the decedent had a conversation during which he told her that “once they schedule the appointment to do the biopsy [the decedent] had to come off his medications for a couple of days prior to the doing the biopsy so [the decedent] wouldn’t bleed out” (R: 164-165). According to the plaintiff, it was Dr. Goyal who instructed the decedent to discontinue his medications “three days prior to the biopsy” (R: 198). The plaintiff recalled that the decedent apparently discontinued all of his medications on June 3, 2008, three days prior to June 6, 2008, which was the date the renal biopsy was scheduled (R: 202). On June 5, 2008, the day before the biopsy was to be performed, the decedent told plaintiff that the renal biopsy was canceled (R: 202, 256-257, 313- 314). The plaintiff had no knowledge as to whether the decedent had resumed his medications after the renal biopsy was cancelled, or whether he was instructed by anyone to resume his medications if and when the biopsy was cancelled (R: 203, 256-257, 314-315). The plaintiff did not know if the decedent was instructed by anyone to restart the medications after the biopsy when he was advised to stop the medications (R: 314-315). The plaintiff “probably” asked the decedent when he had to restart the medication, to which the decedent may have responded, “[w]hen they tell me” (R: 315). According to {00938808.1} 10 Dr. Patel, “[w]hoever is doing the procedure” would be responsible for “reinitializing the drugs” (R: 576). Here, however, it is unknown if the decedent ever restarted them. 5. Decedent’s Death And Autopsy Findings On June 7, 2008, the plaintiff and the decedent were watching a movie together at their home when he went upstairs to their bedroom (R: 258-259). Approximately eleven minutes later (at 4:45 pm), the plaintiff went upstairs and found the decedent dead – he was lying on the bed with his eyes wide open and not moving (R: 204-205, 258-261, 281). The plaintiff began CPR and her son took over when she discontinued to call 9-1-1, after which an ambulance arrived within ten minutes (R: 206, 281-282). The decedent was pronounced dead at Southside Hospital (R: 206-207). An autopsy performed by Southside Hospital found that (R: 2724): CAUSE OF DEATH: - CORONARY ARTERY DISEASE ANATOMIC FINDINGS: - CARDIOMEGALY (519 G), HEART - CORONARY ARTERY DISEASE (RIGHT CORONARY ARTERY, STENT IN PLACE; CIRCUMFLEX ARTERY, PROXIMAL STENT IN PLACE, UP TO 90% OCCLUSION DISTALLY), HEART - FIBROSIS, VENTRICULAR SEPTUM AND LEFT VENTRICLE, HEART - CONGESTION AND EDEMA, LUNGS (LEFT 747 G; RIGHT 980 G), BILATERALLY {00938808.1} 11 - ADVANCED MEMBRANOUS NEPHROPATHY, KIDNEY - MILD TO MODERATE ARTERIONEPHROSCLEROSIS, KIDNEY The Autopsy Report further noted that a “[d]issection of pulmonary artery and branches shows no embolus,” and that “[t]here is a 1cm area of pallor2 in the cardiac septum that may represent an old infarct” (R: 2721 [emphasis added]). B. The Instant Action The plaintiff, decedent’s wife, commenced this medical malpractice, wrongful death action in June 2010 against, among others, Suffolk Heart (R: 53). She alleged that Suffolk Heart negligently allowed the decedent to discontinue his anti-platelet heart medications on June 3, 2008 prior to a scheduled renal biopsy on June 6, 2008 (R: 53, 2711). C. Suffolk Heart’s Summary Judgment Motion In January 2014, Suffolk Heart moved pursuant to CPLR 3212 for summary judgment dismissing the complaint as against it (R: 2171). Suffolk Heart maintained that it performed within the accepted standard of medical care and its treatment did not constitute the proximate cause of decedent’s cardiac arrest. (R: 2173) 2 “Paleness especially of the face that is caused by illness.” See Merriam-Webster Online Dictionary (2015) {00938808.1} 12 In support of its motion, Suffolk Heart relied upon, among other things, the expert affirmation of Dr. Jacob Shani, M.D. (R: 2188-2203), who based his opinion upon the review of the medical records and his over thirty years of experience as an interventional radiologist (R: 2188-2189). He confirmed “that the care and treatment rendered by [Suffolk Heart] to decedent in 2008 was within the standard of care that existed at that time and did not proximately cause any of the injuries as alleged in the verified bills of particulars” (R: 2189). Specifically, he opined that (R: 2199-2201): * * * [G]iven plaintiff’s physical condition in 2008, the standard of care did not otherwise require continuation of antiplatelet medications. Since decedent did not require the use of antiplatelets in 2008, it was not a departure to withhold antiplatelets prior to a scheduled surgery for any length of time. * * * * * * * Dr. Patel never directed decedent to discontinue antiplatelets prior to the renal biopsy, it would not have been the role of Dr. Patel to instruct plaintiff to resume the antiplatelet medications after the scheduled renal biopsy. * * * * * * * [T]he autopsy (which showed no embolus) is inconsistent with a cardiac arrest caused by a heart attack (occluded coronary arteries). Here, plaintiff testified that approximately 4:45 pm, approximately 11 minutes after decedent went upstairs, she found decedent “dead” and unresponsive. Southside Hospital records indicate that decedent was found in cardiac arrest at 4:50 pm. The record reflects that decedent presented to the hospital at approximately 5:10 pm in cardiac arrest. He was pronounced dead {00938808.1} 13 at 5:18 pm. Both the autopsy and clinical picture are consistent with sudden death caused by the heart’s electrical system (e.g. ventricular fibrillation or atrioventricular block) and not an occluded coronary artery. D. Plaintiff’s Opposition In opposition, the plaintiff relied on the affirmation of her expert Dr. Bruce D. Charash, M.D., a specialist in cardiology and board certified in internal medicine (R: 2727-2737). Dr. Charash disagreed with Suffolk Heart’s expert Dr. Shani (1) that the 2008 guidelines did not require the decedent to remain on the anti-platelet medication for more than one year after stent surgery because Dr. Patel had decided to keep the decedent on those medications indefinitely, and that (2) the decedent died of an acute clot on his arteries that the anti-platelet medication was supposed to prevent – an alleged clot which dissolved prior to the autopsy and which was not found during the autopsy. Significantly, Dr. Charash averred that “the standard of care requires that Plavix [be held] for a maximum of 2 to 3 days prior to the performance of any invasive procedure” (R: 2732). E. Suffolk Heart’s Reply In reply, Suffolk Heart asserted that (a) the plaintiff claims that the negligence occurred June 4 and June 7, 2008, and Dr. Patel was not involved in the decision to discontinue Plavix for the renal biopsy at that time, (b) plaintiff’s {00938808.1} 14 expert Dr. Charash agreed that it was not a deviation from the standard of care to discontinue Plavix 2 to 3 days prior to an invasive procedure, which is exactly what occurred here, and (c) the discontinuance of Plavix did not cause the decedent’s death (R: 2747-2754). F. The Order Appealed From By order entered July 29, 2014, the Supreme Court, Suffolk County (Spinner, J.) found that Suffolk Heart satisfied its moving burden, but denied its motion for summary judgment (R: 22-24). The court found that plaintiff’s expert raised issues of fact as to (1) whether the decedent needed to continue to take Plavix three years after his last stenting procedure, and (2) the cause of decedent’s death (R: 24). Suffolk Heart now appeals from the above order (R: 3). Additional facts will be incorporated into the Argument section below. For the reasons that follow, the complaint as against Suffolk Heart should be dismissed. {00938808.1} 15 ARGUMENT THE COURT SHOULD HAVE DISMISSED THE COMPLAINT AS AGAINST SUFFOLK HEART BECAUSE IT ESTABLISHED ENTITLEMENT TO SUMMARY JUDGMENT AND PLAINTIFF FAILED TO RAISE AN ISSUE OF FACT AS TO ANY ALLEGED DEPARTURE FROM ACCEPTED MEDICAL PRACTICE OR PROXIMATE CAUSE A. Applicable Law It is well-established that, Dolan v. Halpern, 73 A.D.3d 1117, 1118-19 (2d Dep’t 2010) (citations omitted): To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach of the standard was the proximate cause of injury. To obtain summary judgment in a medical malpractice action, “a defendant must make a prima facie showing that there was no departure from good and accepted medical practice, or, if there was a departure, that the plaintiff was not injured thereby.” Bezerman v. Bailine, 95 A.D.3d 1153, 1153 (2d Dep’t 2012); see Pike v. Honsinger, 155 N.Y. 201 (1898); Dolan v. Halpern, supra at 1118 (citations omitted) (“a defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. A defendant that can demonstrate the absence of a single element of the tort – deviation or causation – is entitled to summary judgment. As this Court observed in Larsen v. {00938808.1} 16 Loychusuk (55 A.D.3d 560, 561 [2nd Dept 2008]), “[o]n a motion for summary judgment in a medical malpractice action, a defendant doctor has the initial burden of establishing either the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby”.) (emphasis added). To rebut a defendant’s prima facie showing in a medical malpractice case, the plaintiff must oppose with a legally sufficient, expert medical affidavit. See generally Shectman v. Wilson, 68 A.D.3d 848 (2d Dep’t 2009); Rebozo v. Wilen, 41 A.D.3d 457 (2d Dep’t 2007); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). Such an affidavit will be deemed insufficient to raise a triable issue of fact when it contains mere conclusory and/or speculative opinions that are unsupported by competent evidence tending to establish the essential elements of medical malpractice. See Rebozo, supra; Cerny v. Williams, 32 A.D.3d 881 (2d Dep’t 2006); Alvarez, 68 N.Y.2d at 324-325. The proximate cause requirement necessitates that the alleged negligence is not just a factor but a “substantial factor in producing the injury”. Zak v. Brookhaven Mem’l Hosp. Med. Ctr., 54 A.D.3d 852, 853 (2d Dep’t 2008); Mortensen v. Mem’l Hosp., 105 A.D.2d 151, 158 (1st Dep’t 1984). The movant must demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d at 324; Stukas v. Streiter, 83 A.D.3d 18 (2d Dep’t {00938808.1} 17 2011). A defendant meets this burden by submitting competent evidence refuting the contentions advanced in the pleadings and bills of particulars supported by expert opinion evidence. See Bhim v. Dourmashkin, 123 A.D.3d 862 (2d Dep’t 2014); Graber v. Zwanger, 175 A.D.2d 911 (2d Dep’t 1991). Once this burden is met, the onus shifts to the opponent to come forward with admissible evidence raising a material issue of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d at 324; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). Importantly, conclusory expert opinions are insufficient to defeat summary judgment. See Swezey v. Montague Rehab & Pain Mgmt., P.C., 59 A.D.3d 431, 434 (2d Dep’t 2009); Micciola v. Sacchi, 36 A.D.3d 869, 871-872 (2d Dep’t 2007). Expert opinions must also be based on facts in the record or information within the expert’s personal knowledge. See Hambsch v. New York City Transit Auth., 63 N.Y.2d 723, 725 (1984). It is black-letter law that “an expert’s opinion testimony must be based upon facts personally known and testified to by the witness or disclosed by the evidence in the record” Kracker v. Spartan Chemical Co., 183 A.D.2d 810, 812 (2d Dep’t 1992), citing Hambsch v. New York City Transit Auth., 63 N.Y.2d at 725-726; DiTommaso v. Fitzgerald Constr. Corp., 138 A.d.2d 341, 342 (2d Dep’t 1998). “An expert’s opinion is only as sound as the facts upon which it is based”. People v. Cronin, 60 N.Y.2d {00938808.1} 18 430, 434 (1983) (Cooke, Ch. J., concurring). As detailed below, Suffolk Heart established its entitlement to judgment as a matter of law based on lack of any departure or proximate cause, which plaintiff failed to refute. B. Suffolk Heart’s Advice On Withholding Anti-Platelet Therapy Was Not A Departure From Acceptable Medical Practice The gravamen of plaintiff’s complaint as against Suffolk Heart is that its advice in regard to the discontinuance of the decedent’s anti-platelet therapy before the renal biopsy departed from acceptable medical practice. Suffolk Heart’s expert interventional cardiologist Dr. Shani, however, opined that the standard of care in 2008 only required that anti-platelet therapy be prescribed “for one year following coronary stenting to help prevent stent thrombosis” (R: 2199). It is undisputed that the decedent’s last stenting was on May 26, 2005, and that he was scheduled for a renal biopsy for June 6, 2008, before which he was to discontinue his anti-platelet therapy (R: 559-560). Suffolk Heart’s continuation of that therapy beyond the one year period, therefore, necessarily comported with the standard of care. Any advice by Suffolk Heart about withholding anti-platelet therapy some three years after the decedent’s last stenting procedure for any number of days was not a departure {00938808.1} 19 from accepted medical practice. Thus, the court properly found that Suffolk Heart demonstrated entitlement to judgment as a matter of law (R: 23). C. Plaintiff Neglected To Raise An Issue Of Fact On Departure In his affirmation, plaintiff’s expert Dr. Charash did not dispute that the standard of care in 2008 in the locality where the treatment occurred only required that anti-platelet therapy be prescribed for one year following coronary stenting (R: 2733-2736). Dr. Charash, however, correctly related that Suffolk Heart’s expert “Dr. Shani believes that there was no contraindication for holding [the decedent’s] Plavix for any period of time” (R: 2733). But, Dr. Charash simply noted that Suffolk Heart “had made the medical decision to indefinitely continue his treatment with Plavix and aspirin for more than the one year period of time raised by Dr. Shani,” which, according to him, established the applicable standard of care (R: 2733). He concluded that (R: 2736): The direction by defendant PATEL that withholding Plavix “. . . a few days” is vague at best and does not give sufficient direction to whoever was scheduled to do the procedure (whether the hernia repair or the renal biopsy). It was imperative to have Mr. Burns continue his anti-platelet therapy as soon as possible and a vague direction as above stated lends to uncertainty and possible disaster (as this case shows). It is my opinion that the abovementioned direction is a departure from good and accepted practice and likewise, the direction that the anti-platelet therapy could be withheld for 10-12 days and continued 2-3 days later is a departure from good and accepted practice. {00938808.1} 20 Dr. Charash was woefully incorrect, as Dr. Patel gave no such direction to the decedent or anyone else. He merely answered a question asked of the decedent’s other physicians. Nowhere did Dr. Charash identify or explain what specifically in the decedent’s clinical presentation contraindicated withholding anti-platelet therapy in accordance with the undisputed standard of care in 2008. Dr. Charash noted that the published “[g]uidelines establish general medical principles which then must be applied to the facts of each individual case” (R: 2733). But, he neither identified nor explained what facts of this case militated against applying the general guidelines (which Suffolk Heart followed) (R: 2733). Tellingly, he further noted that “[o]ften the decision to treat a patient with a prolonged course of Plavix is based on the individual’s outcome and residual anatomy after their angioplasty and stent placement” (R: 2733). But, Dr. Charash again notably failed to identify and explain what in the decedent’s “outcome and residual anatomy after his angioplasty and stent placement” contraindicated against withholding Plavix. He likewise neglected to identify and explain why “[i]t was imperative to have [the decedent] continue his anti- platelet therapy as soon as possible,” which was not the standard of care in 2008 (R: 2736). His opinions, as such, are purely conclusory and must be rejected. See Arocho v. Kruger, 110 A.D.3d 749, 751 (2d Dep’t 2013). {00938808.1} 21 It is, moreover, black-letter law that the standard of care in a medical malpractice action is determined in the locality where the treatment occurred. See Dolan v. Halpern, 73 A.D.3d 1117, 1118 (2d Dep’t 2010); Langan v. St. Vincent’s Hosp. of New York, 64 A.D.3d 632, 632 (2d Dep’t 2009); Pace v. Jakus, 291 A.D.2d 436, 436 (2d Dep’t 2002). Here, Dr. Shani averred that the standard of care in 2008 only required that anti-platelet therapy be prescribed “for one year following coronary stenting to help prevent stent thrombosis” (R: 2199). To be sure, as Dr. Charash improperly suggested, and the Court erroneously agreed, the decedent’s course of treatment that exceeded the applicable standard of care did not establish the standard of care when that course of treatment is subsequently modified by the decedent’s treating physicians. Simply stated, Suffolk Heart cannot have committed malpractice by exceeding the standard of care, as plaintiff’s expert ventured without explanation. Accordingly, since Suffolk Heart established its entitlement to judgment as a matter of law on lack of any departure and the plaintiff failed to raise an issue of fact, the Court should have granted Suffolk Heart’s motion for summary judgment dismissing the complaint. {00938808.1} 22 D. The Autopsy Report Confirms That Decedent’s Death Was Unrelated To The Discontinuation Of Plavix The plaintiff likewise failed to raise an issue of fact as to causation. The autopsy report explicitly states that “[d]issection of pulmonary artery and branches shows no embolus” (R: 2721). This meant that the death had nothing to do with the discontinuation of Plavix. Dr. Shani, Suffolk Heart’s expert interventional cardiologist, explained that “the autopsy (which showed no embolus) is inconsistent with a cardiac arrest caused by a heart attack (occluded coronary arteries)” (R: 2200). Dr. Shani further averred that the decedent’s clinical picture in which he was found dead and unresponsive at 4:45 p.m., eleven minutes after leaving the plaintiff, being found in cardiac arrest and being pronounced dead at 5:18 p.m. “are consistent with sudden death caused by the heart’s electrical system (e.g. ventricular fibrillation or atrioventricular block) and not an occluded coronary artery” (R: 2200). Dr. Shani confirmed “that discontinuance of antiplatelets was unrelated to the cardiac arrest” (R: 2201). The autopsy reported indicated the cause of death was “coronary artery disease”, but that “[t]here is a 1cm area of pallor in the cardiac septum that may represent an old infarct” (myocardial infarction) (R: 2721 [Autopsy Addendum (emphasis added)]). Thus, the myocardial infarction that the decedent had in October 2003 was still evident during the autopsy. Tellingly, the autopsy {00938808.1} 23 revealed no findings consistent with a recent myocardial infarction (R: 2719- 2725). Interestingly, plaintiff’s expert Dr. Charash completely ignored this critical finding. Rather, he opined that “[a]pproximately 50% of people who have a heart attack caused by the acute formation of a clot will have their clot absent on autopsy,” and that it “is not a coincidence that [the decedent] died during a time period of several days in which he was not taking his Plavix” (R: 2734-2735). The issue was not whether the “clot” was still evident, but whether the decedent suffered an infarct, for which it is undisputed the autopsy did not reveal. Dr. Charash’s postulation, moreover, that the decedent “had no alternative reason on his autopsy that could better explain his sudden death” was belied by the record. As Dr. Shani opined, since there was no evidence of a recent myocardial infarction found during the autopsy, the decedent’s clinical picture was “consistent with sudden death caused by the heart’s electrical system (e.g. ventricular fibrillation or atrioventricular block) and not an occluded coronary artery” (R: 2200-2201). Dr. Charash’s opinion was speculative and incomplete, at best. The record establishes that Plavix prevents blood vessel blockage (R: 514-516, 525), or an embolus. A coronary embolism causes acute myocardial infarction. Thus, {00938808.1} 24 even if there was no evidence of an embolism, there still would have been evidence of a recent myocardial infarction caused by an emblous – something Dr. Charash never addressed. This means that the decedent did not die of an embolism that plaintiff’s expert opined would be absent in 50% of people. Notably, Dr. Charash never opined that evidence of a myocardial infarction would have been absent. Indeed, the decedent’s heart still showed evidence of his past infarctions. Significantly, therefore, Dr. Charash failed to mention, much less acknowledge the significance of, the autopsy findings of an old infarct and the lack of evidence of a recent myocardial infarction (R: 2734-2735). As such, his opinion was baseless and purely speculative that the decedent died of an acute clot formation in his coronary artery, i.e., a myocardial infarction. There is no record evidence that the decedent died of a myocardial infarction, except for Dr. Charash’s foundationless opinion. Indeed, it is well settled that “[n]egligence of a defendant cannot be presumed from the mere existence of an injury.” J.E. v. Beth Israel Hospital, 295 A.D.2d 281, 284 (1st Dep’t 2002), citing Rella v. State, 117 A.D.2d 591 (2d Dep’t 1986); Henry v. Bronx Lebanon Medical Center, 53 A.D.2d 476, 480 (1st Dep’t 1976) (“Presence of an injury does not mean that there was negligence.”) In contravention of these principles, however, Dr. Charash merely assumed that {00938808.1} 25 because the decedent was off his Plavix, then that must have been the cause of his death. This case is analogous to Moore v. NY Med. Grp., P.C., 44 A.D.3d 393 (1st Dep’t 2007) where the Court found the affidavit of plaintiff’s general medicine expert to be of no probative value as against the defendant surgeon. In that case, the issue was whether a hernia repair procedure was timely performed by the defendant. Plaintiff’s expert claimed that earlier surgical intervention was required because the hernia had become incarcerated before the actual procedure. The plaintiff’s expert, however, was unable to point to any evidentiary support for that contention. As such, the Court rejected the expert’s opinion as unsupported by the record, as it derived only from the expert’s own “unsubstantiated” and “assumed conclusion.” See Moore, supra at 395-396. The same occurred here. Accordingly, since Suffolk Heart established its entitlement to judgment as a matter of law on proximate cause and the plaintiff failed to raise an issue of fact, the Court should have granted Suffolk Heart’s motion for summary judgment dismissing the complaint. E. Suffolk Heart’s Advice Is Not Actionable Under These Particular Circumstances As explained above, withholding anti-platelet therapy from the decedent {00938808.1} 26 after one year, let alone for a few days, was neither a departure nor did it proximately cause his death. In any event, there are additional, more fundamental reasons for granting Suffolk Heart summary judgment under these circumstances where causation is wholly lacking from a practical aspect. See Glasheen v. Long Island Diagnostic Imaging, 303 A.D.2d 365 (2d Dep’t 2003) (as matter of law physician’s failure to transmit mammography results to plaintiff’s breast doctor not proximate cause of injury where plaintiff transmitted copy of results herself). It is settled that “[t]o establish liability that a physician negligently gave advice to his or her patient as to what course of treatment to pursue, it must be proved that the doctor’s advice was, in fact, incorrect, that the issuance of such advice constituted professional malpractice, that it was foreseeable that the patient would rely on such advice, and that the patient did, in fact, rely on such advice to her detriment.” See Healy v. Winthrop Univ. Hosp., 287 A.D.2d 541, 542 (2d Dep’t 2001). The term “course of treatment” speaks to affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medications. See Gomez v. Katz, 61 A.D.3d 108, 112 (2d Dep’t 2009). Where the action is premised on negligent advice rather than on negligent treatment, proof of detrimental reliance on the advice is, of course, necessary to establish causation. See Hickey v. Travelers Ins. Co., 158 A.D.2d 112, 116 (2d Dep’t 1990). Here, none of these requirements are {00938808.1} 27 satisfied. 1. There Is No Evidence That Decedent Did Not Resume His Anti-Platelet Therapy After The Biopsy Was Canceled Suffolk Heart cannot be liable under these circumstances where the record is devoid of any evidence that the decedent did not resume his medication once the biopsy was canceled. Nor can the plaintiff ever establish otherwise. According to the plaintiff, the decedent told her that he discontinued taking Plavix on June 3, 2008, three days before the renal biopsy was scheduled (R: 256). On June 5, 2008, the decedent told the plaintiff that the renal biopsy was canceled, the day before the biopsy was scheduled (R: 314). The plaintiff testified that the decedent was a “big boy” and did not discuss his medications with her (R: 173). The decedent discussed with the plaintiff that only Dr. Goyal told him that once the biopsy was scheduled “he had to come off his medications for a couple of days prior to doing the biopsy so he wouldn’t bleed out” (R: 164- 165). 2. There Is No Record Evidence That Any Advice Suffolk Heart Rendered About Withholding Anti-Platelet Therapy Was Relayed To Or Relied Upon By Decedent Or Dr. Goyal There is no record evidence that anyone other than Dr. Goyal told the decedent to discontinue his anti-platelet therapy at any time. As noted above, Dr. Patel authored a letter to Dr. Torelli that stated that “[i]f Plavix needs to be {00938808.1} 28 held for a few days prior to surgery this will be safe, however, it should be resumed post surgery.” Dr. Torelli testified that he received this letter that was reviewed by someone in his office named Jennifer, but does not know if the substance of the letter was ever discussed with the decedent by someone from his office (R: 878). The plaintiff testified that the decedent told her that Dr. Goyal told him that once the biopsy was scheduled “he had to come off his medications for a couple of days prior to doing the biopsy so he wouldn’t bleed out” (R: 164-165). Dr. Goyal, however, testified that (R: 422-423): Q Just so I’m clear, did you tell [the decedent] to discuss with his cardiologist stopping the aspirin and Plavix or did you tell him to actually stop the day of the visit, which was 5/5? A I did not tell him to stop it at all. Q So you told him to go talk to your cardiologist about stopping the aspirin and the Plavix? A Yes. I explained that kidney biopsy the most, in my knowledge, is the most fragile and can bleed a lot. In sum, Dr. Goyal claimed that he never told the decedent to stop the anti- platelet therapy, which is, however, contrary to the plaintiff’s testimony. Dr. Goyal, however, noted that the decedent was present when he had the conversation on the phone with Dr. D’Agate, but Dr. Goyal never testified that he relayed this information to the decedent (R: 421). As such, Dr. Patel’s letter {00938808.1} 29 to Dr. Torelli, which Dr. Goyal testified he never saw, and Dr. D’Agate’s advice to Dr. Goyal could not have caused the decedent’s death. Simply stated, Dr. Goyal never testified he relied on or communicated any of this information to the decedent. 3. Suffolk Heart Only Gave Advice About Withholding Anti-Platelet Therapy Before And After Surgery, Not In The Event The Biopsy Was Canceled It is unequivocal that Drs. Patel and D’Agate were asked to render advice in regard to withholding anti-platelet therapy before and after a surgical procedure. They were not asked to render advice about the protocol in the event of what happened here – where anti-platelet therapy was withheld before a surgical procedure and then the procedure was canceled. Regardless of Drs. Patel and D’Agate’s advice as to the duration that the decedent could withhold therapy before and after a surgical procedure, the decedent in fact only withheld anti-platelet therapy for two days before the renal biopsy was canceled (R: 256, 314). Even the plaintiff’s expert conceded this was fine. The plaintiff claims that no one told the decedent to resume his anti- platelet therapy after the renal biopsy had been canceled on or before June 5, 2008. Significantly, there is no record evidence that Dr. Patel, Dr. D’Agate or anyone at Suffolk Heart knew when the renal biopsy was scheduled, and, more importantly, that the renal biopsy was eventually canceled before June 6, 2008. Moreover, Suffolk Heart never directed the decedent to cease anti-platelet therapy in the first place. Thus, as Dr. Patel explained, "[ w ]hoever is doing the procedure" would be responsible for "reinitializing the drugs" (R: 576). As such, any advice that Dr. Patel, Dr. D' Agate or anyone at Suffolk Heart rendered as to withholding anti-platelet therapy before and after a surgical procedure could not have been the cause of the decedent's death. In sum, Suffolk Heart was never asked to render advice in regard to what the decedent should do if the renal biopsy was canceled while he had already withheld anti-platelet therapy. Accordingly, since Suffolk Heart established its entitlement to summary judgment and the plaintiff failed to raise an issue of fact on causation, the court should have granted its motion for summary judgment dismissing the complaint. CONCLUSION For the foregoing reasons, the order denying Suffolk Heart's motion for summary judgment should be reversed and the complaint should be dismissed as against it. Of Counsel Christopher Simone Gerard S. Rath {009388081} Shaub, Ahmuty, Citrin & Spratt LLP 1983 Marcus A venue Lake Success, New York 11042-1056 ( 516) 488-3 300 Attorneys for Rakesh B. Patel, M.D. and Suffolk Heart Group, LLP 30 {00938808.1} 31 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 6,589. Dated: Lake Success, NY April 8, 2015 Christopher Simone, Esq. Shaub, Ahmuty, Citrin & Spratt, LLP 1983 Marcus Avenue Lake Success, NY 11042 (516) 488-3300 Attorneys for Rakesh B. Patel, M.D. and Suffolk Heart Group, LLP