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. REPLY 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 TABLE OF CONTENTS REPLY POINT I PLAINTIFF HAS NOT IDENTIFIED WHAT IN DECEDENT’S CLINICAL PRESENTATION MILITATED AGAINST WITHHOLDING ANTI-PLATELET THERAPY ......................................... 1 REPLY POINT II PLAINTIFF NEGLECTS TO ADDRESS THAT THE AUTOPSY REPORT BELIES HER CLAIM THAT DECEDENT DIED OF A MYOCARDIAL INFARCTION ANTI-PLATELET THERAPY WAS MEANT TO PREVENT ....................................................................... 2 REPLY POINT III SUFFOLK HEART’S ADVICE DID NOT CAUSE DECEDENT’S DEATH ......................................................................................................... 4 A. There Is No Record Evidence That Any Advice Suffolk Heart Rendered Was Relayed To Or Relied Upon By Decedent ................... 4 B. There Is No Record Evidence That Decedent Did Not Resume Anti-Platelet Therapy After The Renal Biopsy Was Canceled ............ 6 C. Plaintiff Fails To Address That Suffolk Heart Was Not Asked What Decedent Should Do If The Renal Biopsy Was Canceled ......... 8 CONCLUSION ............................................................................................... 9 CERTIFICATE OF COMPLIANCE ............................................................ 10 REPLY BRIEF FOR DEFENDANTS-APPELLANTS RAKESH B. PATEL, M.D. and SUFFOLK HEART GROUP, LLP REPLY POINT I PLAINTIFF HAS NOT IDENTIFIED WHAT IN DECEDENT’S CLINICAL PRESENTATION MILITATED AGAINST WITHHOLDING ANTI-PLATELET THERAPY On appeal, the plaintiff contends that (Plaintiff’s Brief at 23-24): * * * It is clear from the facts as set forth throughout the record that Mr. Burns was more than three years out of his last stenting, yet defendant Patel kept Mr. Burns on antiplatelet therapies of Plavix and aspirin. It is clear to Dr. Charash that both cardiologists (Dr. Patel and Dr. D’Agate) recognized that Mr. Burns was at an unreasonable increased risk of harm should he remain off of Plavix for too long a period of time (R:2734). This was confirmed by both letters sent first by defendant Patel dated March 25, 2008 (R:809- l0) wherein defendant Patel recommended that Plavix may be held for a few days prior to surgery. . . however, it should be resumed post surgery and second by Dr. D’Agate dated June 2, 2008 wherein Dr. D’Agate confirmed it was safe to hold antiplatelet therapy prior to undergoing renal biopsy, however, he should have prompt reinitiation of antiplatelet agent (R:822). It is clear Mr. Burn’s cardiologists wanted him to continue the antiplatelet therapy more than one (1) year after stenting. It was apparent to Dr. Charash that any unreasonable interruption of that therapy put Mr. Burns in harm’s way. It was also clear to Dr. Charash that Mr. Burns was not someone who fit neatly into a “guideline” and the guideline merely served as a minimum, not a maximum, treatment which must be determined in each patient (R:2733-34). Yet, the plaintiff, again, fails to identify what in the decedent’s clinical presentation contraindicated withholding anti-platelet therapy in accordance with the undisputed standard of care in 2008. 2 The plaintiff, moreover, maintains that “conflicting medical opinions present a triable issue of fact as to what the standard of care was in 2008 regarding the length of time for the use of antiplatelet therapies” (Plaintiff’s Brief at 24). She only repeats the mantra in her brief, however, that “it is clear” in the record and to Dr. Charash that the decedent needed to continue his antiplatelet therapy. To be sure, Dr. Charash did not identify and explain what was clear and apparent in the record in the decedent’s “outcome and residual anatomy after his angioplasty and stent placement” that contraindicated against withholding such therapy. Simply repeating that “it is clear” in the record and to Dr. Charash that the decedent’s antiplatelet therapy should not have been discontinued is not an opinion, but a conclusory statement. In sum, there are no conflicting medical opinions that present triable issues of fact as Dr. Charash’s opinions are purely conclusory and must be rejected. See Arocho v. Kruger, 110 A.D.3d 749, 751 (2d Dep’t 2013). REPLY POINT II PLAINTIFF NEGLECTS TO ADDRESS THAT THE AUTOPSY REPORT BELIES HER CLAIM THAT DECEDENT DIED OF A MYOCARDIAL INFARCTION ANTI-PLATELET THERAPY WAS MEANT TO PREVENT The plaintiff postulates “that it was clear [to Dr. Charash] that Mr. Burns died from an arrhythmia caused by an acute clot at the site of one of his 3 imbedded DES (R:2735)” (Plaintiff’s Brief at 25 [emphasis added]). She further states that “Fifty (50%) percent of people who form an acute clot inside one of their coronary arteries will not have it seen on autopsy” (Plaintiff’s Brief at 25). The record clearly establishes that anti-platelet therapy is meant to prevent blood vessel blockage (an embolus or clot) (R: 514-516, 525). A coronary embolism causes acute myocardial infarction. The plaintiff, nevertheless, again avoids the issue that it is not whether a “clot” was still evident during the autopsy, but whether the decedent suffered a myocardial infarction, for which it is undisputed the autopsy did not reveal. 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]). As such, the myocardial infarction that the decedent had in October 2003 was still evident during the autopsy, 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 Dr. Charash and plaintiff’s respondent’s brief never addresses. 4 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, 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). REPLY POINT III SUFFOLK HEART’S ADVICE DID NOT CAUSE DECEDENT’S DEATH The plaintiff’s statement that Suffolk Heart ignored her arguments regarding the advice that it gave regarding the decedent’s anti-platelet therapy (Plaintiff’s Brief at 26) is unsupportable. Suffolk Heart merely argued in its brief that any such alleged advice that it gave about the decedent’s antiplatelet therapy, among other things, did not cause his death (Suffolk Heart’s Brief at 25-30). A. There Is No Record Evidence That Any Advice Suffolk Heart Rendered Was Relayed To Or Relied Upon By Decedent The plaintiff contends that Suffolk Heart’s advice to Dr. Goyal that he memorialized in an addendum note “that Plavix/aspirin can be held for ten to 12 days. Restart second or third day after biopsy” (R: 430) raises an issue of fact. This is so, she maintains, because Dr. D’Agate disputed that he told Dr. Goyal that the anti-platelet therapy could be discontinued for ten to twelve days (R: 5 1538-1542, 1552). But, regardless, there is no record evidence that the decedent relied on this alleged advice, which is a necessary element of the plaintiff’s cause of action (Suffolk Heart’s Brief at 25-29). Dr. Goyal claimed that he never told the decedent to stop the anti-platelet therapy (R: 422-423). Dr. Goyal’s claim, however, is contrary to the plaintiff’s testimony that the decedent told her that Dr. Goyal told him to discontinue anti- platelet therapy three days before the renal biopsy (R: 198). Dr. Goyal noted that the decedent was present when he had the conversation on the phone with Dr. D’Agate, which was memorialized in the addendum, but Dr. Goyal never testified that he relied on or relayed this information to the decedent (R: 421). Significantly, Dr. Goyal instructed the decedent to discontinue his medications “three days prior to the biopsy,” which he did on June 3, 2005 (R: 198, 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). So it is apparent that any advice that Suffolk Heart rendered was not contrary to what Dr. Goyal instructed the decedent or relied upon by either Dr. Goyal or the decedent. The plaintiff’s reliance on her and Dr. Goyal’s deposition testimony, which she quotes at pages 27-30, does not demonstrate that the decedent was relayed, or Dr. Goyal relied on, Dr. D’Agate’s alleged advice. Although the 6 quoted deposition testimony demonstrated that the decedent was present when Dr. Goyal spoke with Dr. D’Agate, the testimony does not demonstrate that anything that Dr. D’Agate allegedly said was relayed to the decedent. Significantly, there is no record evidence that Dr. Goyal advised the decedent that it was permissible to discontinue his anti-platelet therapy for ten to twelve days, as Dr. Goyal alleged was Dr. D’Agate’s advice. More to the point, the actual instruction that Dr. Goyal gave to the decedent comported with Dr. Charash’s averment 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). As such, any advice that Suffolk Heart allegedly rendered to Dr. Goyal could not have caused the decedent’s death. B. There Is No Record Evidence That Decedent Did Not Resume Anti-Platelet Therapy After The Renal Biopsy Was Canceled The plaintiff maintains that “On June 7, 2008 Mr. Burns died form (sic) an arrhythmia caused by an acute clot formation at the site of one of his imbedded DES (drug eluding stent) due to Mr. Burns’ lack of anti-platelet agents in his system” (Plaintiff’s Brief at 3). Significantly, there was no toxicological evidence in the record to support the statement that the decedent did not have any anti-platelet agents in his system. The plaintiff contends that 7 the decedent “stopped his Plavix three days prior to the surgery and never resumed the same prior to his death” (Plaintiff’s Brief at 30). In support of this contention, the plaintiff relied on her deposition testimony, asserting that she (Plaintiff’s Brief at 29): * * * also stated that Mr. Burns never reinitiated his medications; (R:203) Q. After your husband discontinued the medication in anticipation of the kidney biopsy which never occurred, did your husband ever resume any medications prior to his passing? A. Not to my knowledge. Q. Was he instructed by anyone to resume his medications after the cancelled kidney biopsy? A. Not to my knowledge. As is apparent, the plaintiff’s deposition testimony upon which she relies does not state that the decedent “never reinitiated his medications” -- she merely testified that she has no knowledge as to whether he did. This is so because, as she acknowledged, the decedent was a “big boy” and did not discuss his medications with her (R: 173). The plaintiff further contends that the decedent “intended to go back on the [anti-platelet therapy] when he was told. (R: 315),” which is also based on her deposition testimony. Tellingly, there is no record evidence that Dr. Goyal discussed with the decedent when he was to resume his anti-platelet therapy 8 after the surgery or if it was canceled. In short, 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. C. Plaintiff Fails To Address That Suffolk Heart Was Not Asked What Decedent Should Do If The Renal Biopsy Was Canceled Drs. Patel and D’Agate were asked to render advice in regard to withholding anti-platelet therapy before and after a surgical procedure, which Dr. Goyal requested. Significantly, 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 (Suffolk Heart’s Brief at 29-30). The plaintiff claims that after the renal biopsy was canceled on June 5, 2008, “[n]o health care provider instructed [the decedent] to reinitiate his anti-platelet therapy” (Plaintiff’s Brief at 3). 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. As Dr. Patel explained, “[w]hoever is doing the procedure” would be responsible for “reinitializing the drugs” (R: 576). The plaintiff failed to address this issue in her brief. 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 additional 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 Shaub, Ahmuty, Citrin & Spratt LLP Christopher Simone 1983 Marcus A venue Lake Success, NY 11042-1056 (516) 488-3300 Attorneys for Suffolk Heart 9 10 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 2,015. Dated: Lake Success, NY June 8, 2015 Christopher Simone, Esq. Shaub, Ahmuty, Citrin & Spratt, LLP 1983 Marcus Avenue Lake Success, NY 11042 (516) 488-3300 Attorneys for Suffolk Heart