Barbara Burns,, Appellant,v.Sudhir Goyal, et al., Defendants, Rakesh B. Patel, et al., Respondents.BriefN.Y.October 10, 2017Christopher Simone csimone@sacslaw.com 77 Water Street, Suite 702 New York, New York 10005 (212) 599-8200 Facsimile (212) 850-5545 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP ATTORNEYS AT LAW 1983 MARCUS AVENUE LAKE SUCCESS, NEW YORK 11042-1056 (516) 488-3300 Facsimile: (516) 488-2324 info@sacslaw.com 50 Main Street, Suite 1000 White Plains, New York 10606 (914) 948-5666 Facsimile: (914) 682-7787 August 2, 2017 Hon. John P. Asiello Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, NY 12207 Re: Burns v. Goyal APL-2017-00091 Dear Mr. Asiello: We represent defendants-respondents Rakesh B. Patel, M.D. and Suffolk Heart Group, LLP (hereinafter collectively “Suffolk Heart”). Preliminary Statement Suffolk Heart submits this letter brief in opposition to plaintiff’s appeal on a grant of leave by this Court on May 9, 2017 (29 N.Y.3d 907 [2017]) from a Decision & Order of the Appellate Division, Second Department entered December 28, 2016 (145 A.D.3d 952) that, as relevant here, reversed an order of the Supreme Court, Suffolk County (Spinner, J.), entered July 29, 2014, that denied defendants’ motions for summary judgment dismissing the complaint insofar as asserted against each of them. As detailed below, the Appellate Division’s Decision & Order should be affirmed. Conspicuously absent from plaintiff’s submission is what particular legal issue of statewide importance this Court should reach on this appeal. Rather, her overall position distills to mere disagreement with the Appellate Division’s reasoning. Plaintiff generally claims that the court erroneously granted Suffolk Heart summary judgment by ignoring an issue of fact purportedly raised by her expert as to whether its medical advice regarding the standard of care for withholding decedent’s anti-platelet therapy, and for how long, was a departure. Not only does her assertion lack merit, her action fails for other reasons as well. Page 2 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP Contrary to plaintiff’s contention, Suffolk Heart was entitled to dismissal because (a) Suffolk Heart did not direct decedent to cease anti-platelet therapy, it merely cleared him to do so for an expected biopsy procedure; (b) Suffolk Heart had no duty to monitor the status of decedent’s biopsy and anti-platelet therapy; (c) there is no record evidence that decedent did not resume anti-platelet therapy after the biopsy was canceled; (d) plaintiff has never addressed the fact that the autopsy demonstrated no recent infarct which would be evident if a heart attack was the cause of death as she claims; and (e) her expert raised no issue of fact because he conceded that anti-platelet therapy could be withheld safely for three days (decedent was advised two days after ceasing the anti-platelet therapy that the biopsy was canceled) and ignored Suffolk Heart’s expert’s opinion that 70% of the effects of the therapy still remain in the system three days after cessation. Brief Factual & Procedural Background A. Decedent’s Medical History In October 2003, plaintiff’s decedent Thomas Burns presented to the Southside Hospital emergency room after having chest pains and collapsing while coaching his son’s soccer game (R: 245, 510-512). Dr. Patel, who is board certified in internal medicine, cardiology, interventional cardiology, and cardiac nuclear medicine was “on call for emergency angioplasty” at the hospital when decedent was brought in by ambulance after having been in cardiac arrest and resuscitated several times (R: 506-507, 510-512). Decedent had a large anterior wall myocardial infarction (heart attack) because “[h]is left anterior descending [artery] was 100 percent blocked and his right coronary artery appeared to be 100 percent blocked” (R: 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). Dr. Patel successfully performed angioplasty and implanted a stent in decedent’s left anterior descending coronary artery (R: 182, 512-513). The stent alleviated decedent’s symptoms, and Dr. Patel placed him on Plavix and aspirin to thin his blood (R: 515-516). Dr. Patel opined that the blockage in decedent’s heart was “[p]robably related to [his] age, his being overweight, smoking and very high cholesterol” (R: 518). In May 2005, Dr. Patel performed a coronary angiogram1 and implanted a stent in decedent’s right coronary artery because he was complaining of chest pains 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. Page 3 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP (R: 558-560). Decedent continued to treat periodically with Dr. Patel through March 2006, but Dr. Patel did not see him again until he presented on March 25, 2008 for “pre-op recertification prior to hernia surgery” (R: 193-194, 560-570). After examining the decedent, Dr. Patel authored a letter to decedent’s primary care physician Dr. Torelli stating 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). On April 8, 2008, while being worked-up for the hernia surgery, Dr. Torelli “stopped the work-up because there was an increase in hospital lab work with a worsening of kidney function” (R: 874-875). Decedent was then “[s]ent stat to Dr. [Sudhir] Goyal”, who is board certified in internal medicine and nephrology (kidney specialist) (R: 387-388, 876). The next day, decedent presented to Dr. Goyal because his “kidneys [were] not functioning properly” and Dr. Goyal examined him, adjusted his medications and ordered additional kidney function tests (R: 391-392, 395, 404-410). On April 25, 2008, Dr. Goyal diagnosed decedent with acute renal failure and nephrotic syndrome and advised him that he needed a kidney biopsy (R: 410-412, 421). Ten days later Dr. Goyal advised him to get cardiac clearance for the biopsy (R: 415, 422, 425). On May 29, 2008, decedent again presented to Dr. Goyal who spoke by telephone with Dr. D’Agate, Dr. Patel’s colleague at Suffolk Heart, with decedent present, to discuss his cardiac clearance for the renal biopsy (R: 421, 428-430). On June 2, 2008, Dr. D’Agate authored a letter addressed to Dr. Torelli, and copied to Dr. Goyal, stating that 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 ordered the renal biopsy, which was scheduled for June 6, 2008, and that it be performed by an interventional radiologist at Good Samaritan Hospital, which “arranges everything” (R: 437-439). The biopsy, however, was never performed and Dr. Goyal did not know why (R: 446). Dr. Goyal found out that decedent had died after he questioned “what happened to the biopsy” five to eight days after it was scheduled to occur (R: 447). Page 4 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP On June 5, 2008, the day before the biopsy was to be performed, decedent told plaintiff (his wife) that the biopsy was canceled (R: 202, 256-257, 313-314). Plaintiff had no knowledge as to whether decedent had resumed his medications after the renal biopsy was cancelled, or whether he was instructed by anyone to resume his medications if the biopsy was cancelled (R: 203, 256-257, 314-315). On June 7, 2008, eleven minutes after retiring to his bedroom, decedent was found lying on the bed with his eyes wide open and not moving (R: 204-205, 258- 261, 281). 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). Decedent was pronounced dead at Southside Hospital (R: 206-207). The Autopsy Report noted as follows (R: 2724 [capitalization in original]): 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 - 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]). Thus, the autopsy revealed the 2003 heart attack, but nothing recently. 2 “Paleness especially of the face that is caused by illness.” See Merriam-Webster Online Dictionary (2015). Page 5 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP B. Summary Judgment Motion & Order In January 2014, Suffolk Heart moved pursuant to CPLR 3212 for summary judgment dismissing the complaint as against it (R: 2171-2173). In support, 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 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. Page 6 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP 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 decedent needed to continue to take Plavix three years after his last stenting procedure and (2) the cause of decedent’s death (R: 24). C. Suffolk Heart’s Successful Appeal On appeal, the Appellate Division, Second Department reversed and dismissed the complaint as against Suffolk Heart, reasoning (Burns v. Goyal, 145 A.D.3d 952, 954-55 [2d Dep’t 2016]): The Patel defendants established, prima facie, that they adhered to accepted practices in their treatment of the decedent. Their expert cardiologist stated that the accepted standard of care was to keep patients on Plavix for one year following the placement of stents. Thus, because the decedent’s most recent stents had been placed three years before his scheduled kidney biopsy, he did not need to be on Plavix at the time of the incident. Notably, the expert also stated that “Plavix and aspirin retain approximately 70% of their effects three days after discontinuance.” The affirmation of the plaintiff’s expert cardiologist, submitted in opposition, was conclusory. He stated that the standard of care required Patel to keep the decedent on Plavix indefinitely, based upon Patel’s decision to keep the decedent on Plavix. That expert, however, failed to articulate what it was about the decedent’s particular case that required him to remain on Plavix three years after his stents were placed. He further failed to articulate why a four-day interruption in the Plavix prescription would have been a danger to the decedent. In particular, he failed to respond to the statement of the Patel defendants’ expert, that “Plavix and aspirin retain approximately 70% of their effects three days after discontinuance.” Thus, the plaintiff failed to raise a triable issue of fact as to whether the Patel defendants departed from to the accepted standard of care. Pursuant to leave of this Court (29 N.Y.3d 907 [2017]), plaintiff now appeals. For the reasons that follow, the Appellate Division Decision & Order should be affirmed as to Suffolk Heart. Page 7 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP Argument Point I There Is No Record Evidence That Decedent Did Not Resume Anti-Platelet Therapy After The Renal Biopsy Was Canceled Plaintiff’s claim hinges on the unfounded assumption that after the biopsy was canceled on June 5, 2008, decedent did not resume Plavix, which he had been taking regularly for years. She contends that decedent “expired from an arrhythmia caused by an acute clot formation at the site of one of his imbedded DES3 due to absence of anti-platelet agents in his system (R2735)” (Plaintiff’s Letter Brief at 7 [emphasis added]). There is no record evidence, however, that decedent lacked any anti-platelet agents in his system or that he did not resume taking Plavix after the renal biopsy was canceled. Decedent told plaintiff that he discontinued taking Plavix on June 3, 2008 in preparation for the renal biopsy that was scheduled for June 6th (R: 202). Decedent was advised on June 5th that the biopsy, for which he had discontinued taking Plavix, was cancelled (R: 202, 256-257, 313-314). There is no dispute among the parties that it is acceptable to discontinue taking Plavix, or any other anti-platelet therapy, “for a maximum of 2 to 3 days prior to the performance of any invasive procedure” (R: 2732). Tellingly, decedent understood and communicated to plaintiff that “once they schedule the appointment to do the biopsy [he] had to come off his medications for a couple of days prior to the doing the biopsy so [he] wouldn’t bleed out” (R: 164-165). Decedent did not communicate to anyone that he understood that the cessation of Plavix would be permanent and not simply temporarily for the renal biopsy. Rather, he understood it was for the procedure. Significantly, there was no toxicological evidence in the record to support the statement that decedent did not have any anti-platelet agents in his system. Plaintiff only testified that she had no knowledge whether he had resumed taking Plavix after the renal biopsy was canceled (R: 203). Plaintiff did not state that the decedent “never reinitiated his medications” -- she merely testified that she did not know whether he did. This is so because, as she acknowledged, decedent was a “big boy” and did not discuss his medications with her (R: 173). 3 Drug eluting stent. Page 8 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP Plaintiff also states in her letter brief that decedent was advised that he was to reinitiate Plavix after the biopsy. She stated that “Dr. Goyal, in the presence of Mr. Burns, telephoned Dr. Patel,” but he was not present, so they talked to Dr. D’Agate, who advised that “it was safe to hold anti-platelet therapy prior to undergoing renal biopsy, however [decedent] should have prompt reinitiation of anti-platelet agent.” (Plaintiff’s Letter Brief at 3 [R: 2717]). Plaintiff concedes, therefore, that decedent was aware that he was to resume taking Plavix after the renal biopsy, and there is no record evidence demonstrating that he did not do so after the renal biopsy was canceled. In short, Suffolk Heart cannot be liable under these circumstances where the record is devoid of any evidence that decedent did not resume his medication once he learned that the biopsy was canceled. Point II Plaintiff Has Never Addressed That The Autopsy Report Belies Her Claim That Decedent Died Of A Clot, Which Would Have Caused A Myocardial Infarction To Appear In His Tissue Plaintiff postulated that decedent “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)” (Plaintiff’s Letter Brief at 7 [emphasis added]). A coronary embolism (clot) causes acute myocardial infarction. She argued that the autopsy revealed no “clot” because it “dissolve[d] and/or dissipate[d] prior to the autopsy” (R: 2735). Whether a clot is evident during an autopsy after a cardiac event, however, misses the point. The question is whether the autopsy revealed that decedent suffered a myocardial infarction that was caused by an embolism (clot), for which it is undisputed the autopsy did not reveal. In particular, the autopsy report 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 [emphasis added]). Tellingly, the myocardial infarction that decedent experienced in October 2003 was still evident in his tissue, but the autopsy revealed no findings consistent with a recent myocardial infarction (R: 2719-2725). Thus, even if there was no evidence of an embolism from the autopsy, there would still be evidence of a recent myocardial infarction caused by an embolus – something plaintiff’s expert Dr. Charash never addressed. Page 9 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP Therefore, it remains unchallenged that, as Suffolk Heart’s expert Dr. Shani opined, since there was no evidence of a recent myocardial infarction found during the autopsy, 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). Accordingly, any purported cessation in anti-platelet therapy could not have been a proximate cause of death. Point III The Appellate Division Correctly Determined That Plaintiff Raised No Triable Issues Of Fact Plaintiff contends that “the contrary opinions [of Suffolk Heart’s and plaintiff’s experts] raise triable issued (sic) of fact and the Appellate Division erred in accepting Dr. Shani’s opinion despite the contrary opinion of Dr. Charash” (Plaintiff’s Letter Brief at 16). Initially, the Appellate Division did not “accept” Suffolk Heart’s expert’s opinion, but found that “plaintiff failed to raise a triable issue of fact as to whether [Suffolk Heart] departed from the accepted standard of care” (Burns at 455). Regardless of the experts’ opinions, the record confirms that Suffolk Heart did not depart from the accepted standard of care. Plaintiff writes that (Plaintiff’s Letter Brief at 15): 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. Burns 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). Plaintiff further writes that “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)” (Plaintiff’s Letter Brief at 16). Plaintiff contends that Dr. Charash’s disagreement with Dr. Shani’s opinion that “Plavix and Aspirin retain approximately 70% of their effects three days after discontinuance” created an issue of fact that the Appellate Division ignored (Plaintiff’s Letter Brief at 16). Page 10 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP But, there is simply no conflict in the advice given by Suffolk Heart or the opinion of Dr. Shani with plaintiff’s expert’s opinion. First, as noted above there is no record evidence that decedent withheld anti-platelet therapy for more than three days. He ceased taking Plavix on June 3rd in preparation for the renal biopsy that was scheduled for June 6th, but was advised on June 5th that it was canceled. As noted above, plaintiff conceded that decedent knew he was ceasing Plavix just for purposes of the biopsy. Second, contrary to plaintiff’s misrepresentation, Dr. Charash never addressed the 70% statistic relied upon by Dr. Shani. He just ignored it. Indeed, the Appellate Division pointed out that Dr. Charash “failed to respond to the statement of the Patel defendants’ expert, that ‘Plavix and aspirin retain approximately 70% of their effects three days after discontinuance.’” Thus, plaintiff neglected to generate any dispute on this point at all. Next, critical to the Appellate Division’s reasoning was Dr. Charash’s failure to explain why decedent needed to remain on Plavix for more than a year. Suffolk Heart’s expert opined that the standard of care required a patient such as decedent to remain on Plavix for one year. While Dr. Charash conveniently relied upon Dr. Patel’s prior advice that decedent should resume anti-platelet therapy after the biopsy, as the Appellate Division found, Dr. Charash “failed to articulate what it was about the decedent’s particular case that required him to remain on Plavix three years after his stents were placed.” To be sure, plaintiff was required to proffer non-speculative expert proof to raise an issue of fact; not conveniently rely on cherry-picked testimony from the party she was suing to establish some illusory standard of care. Notably, plaintiff never questioned Dr. Patel on this subject. Lastly, Dr. Charash did not opine as to who had to tell decedent to resume taking Plavix after the renal biopsy was canceled. In this regard, 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 had been canceled. Dr. Patel last saw the decedent in March 2008 (R: 583). As Dr. Patel explained, “[w]hoever is doing the procedure” would be responsible for “reinitializing the drugs” (R: 576). Notably, Dr. Charash did not comment on whose responsibility it was to inform decedent to reinitiate anti- platelet therapy (R: 2727-2737). Moreover, Suffolk Heart never told decedent to cease Plavix, it merely cleared him to do so for a few days for an expected biopsy. Thus, Suffolk Heart had no duty to follow decedent to ensure that he “should have Page 11 {00984785.1} 00881246.1 SHAUB, AHMUTY, CITRIN & SPRATT, LLP prompt reinitiation of antiplatelet agent” after a biopsy, which it did not even know was canceled (R: 1538-1542, 2717). See Wasserman v. Staten Is. Radiological Assoc., 2 A.D.3d 713, 714 (2d Dep’t 2003) (“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient”); see also Burtman v. Brown, 97 A.D.3d 156, 162 (1st Dep’t 2012). In short, Suffolk Heart never rendered advice as to what decedent should do if the renal biopsy was canceled while he had already withheld anti-platelet therapy. Thus, any advice that Dr. Patel, Dr. D’Agate or anyone at Suffolk Heart rendered as to if and when Plavix was to be reinitiated after a biopsy procedure could not have been the cause of decedent’s death. Accordingly, contrary to plaintiff’s contention, the record overwhelmingly established that she neglected to raise an issue of fact in opposition to Suffolk Heart’s entitlement to summary judgment. Conclusion For the foregoing reasons, this Court should affirm the Appellate Division Decision & Order as to Suffolk Heart. Very truly yours, Christopher Simone 00930470.1 NEW YORK STATE COURT OF APPEALS RULE 500.1(F) DISCLOSURE STATEMENT Burns v. Goyal APL-2017-00091 Defendant-Respondent Suffolk Heart Group, LLP has no parent, subsidiary or affiliate organizations. {00930466.1} NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE Burns v. Goyal APL-2017-00091 I hereby certify pursuant to 22 NYCRR Part 500.1(j) and 500.11(m) that the foregoing submission was prepared on a computer using Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Single Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 3,770 words. Dated: Lake Success, NY August 2, 2017 Christopher Simone Shaub, Ahmuty, Citrin & Spratt, LLP 1983 Marcus Avenue Lake Success, NY 11042 (516) 488-3300 Attorneys for Defendants-Respondents Rakesh B. Patel, M.D. and Suffolk Heart Group, LLP