Barbara Burns,, Appellant,v.Sudhir Goyal, et al., Defendants, Rakesh B. Patel, et al., Respondents.BriefN.Y.October 10, 2017To be Argued by: ANGELA A. CUTONE (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 MICHAEL TORELLI, M.D. AND SOUTH SHORE FAMILY PRACTICE ASSOC., P.C. KELLER, O’REILLY & WATSON, P.C. Attorneys for Defendants-Appellants Michael Torelli, M.D. and South Shore Family Practice Assoc., P.C. 242 Crossways Park Drive West Woodbury, New York 11797 (516) 496-1919 Suffolk County Clerk’s Index No. 20115/10 Docket No.: 2014-11013 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii I. DR. TORELLI AND SOUTH SHORE FAMILY PRACTICE ARE ENTITLED TO DISMISSAL OF ALL CLAIMS .......................................... 1 A. Dr. Garbitelli’s Affirmation is Sufficient .............................................. 1 B. Dr. Torelli and South Shore Family Practice Had No Duty to Perform any Act Upon Receipt of the June Letter ................................ 3 C. Assuming Arguendo That There was a Duty, Dr. Torelli and South Shore Family Practice Followed all Accepted Standards of Medical Care .................................................................... 6 D. Plaintiff is Confusing the Hernia Procedure with the Kidney Biopsy .................................................................................................... 7 CONCLUSION .......................................................................................................... 9 ii TABLE OF AUTHORITIES Page(s) Cases: Burtman v. Brown, 97 A.D.3d 156, 945 N.Y.S.2d 673 (1st Dep’t 2012) ....................................... 4 Koeppel v. Park, 228 A.D.2d 288, 644 N.Y.S.2d 210 (1st Dep’t 1996) ..................................... 5 Markley v. Albany Medical Center Hosp., 163 A.D.2d 639, 558 N.Y.S.2d 688 (3d Dep’t 1990) ............................. 3-4, 5 Wasserman v. Staten Island Radiological Associates, 2 A.D.3d 713, 770 N.Y.S.2d 108 (2d Dep’t 2003) ......................................... 4 1 I. DR. TORELLI AND SOUTH SHORE FAMILY PRACTICE ARE ENTITLED TO DISMISSAL OF ALL CLAIMS A. Dr. Garbitelli’s Affirmation is Sufficient Plaintiff-Respondent fails to raise any genuine issue of material fact requiring a trial. Dr. Torelli and South Shore Family Practice have clearly demonstrated their entitlement to summary judgment by the submission of medical records, depositions and a physician’s affirmation by Dr. Garbitelli. Specifically, Dr. Garbitelli addresses all of the medical malpractice issues raised by plaintiff. In his affirmation, Dr. Garbitelli states as follows: “None of the South Shore defendants spoke with the patient regarding the intended kidney biopsy nor his medications in conjunction with the intended procedure. Even if they had, it would have been appropriate and proper to defer to the instructions and medication instructions given by the patient’s following specialists, including his nephrologist and/or cardiologist. As such, it is my opinion within a reasonable degree of medical certainty that, up until this time, the South Shore defendants had rendered care and treatment to the patient in accordance with good and accepted medical practice and had appropriately referred the patient to appropriate specialists and deferred to said specialists with regard to the patient’s care, treatment and 2 medications.” (R. 1653). Dr. Garbitelli goes on to state that: “The patient did discontinue taking medication in advance of the intended kidney biopsy, which was cancelled for unknown reasons. There is zero evidence that the South Shore defendants had any involvement at all in the preparing for the intended biopsy, scheduling of the biopsy, the suspension of medications in advance of same, the intended reinitiation of such following the intended procedure, nor the cancelling of the biopsy at any time and nothing the South Shore defendants did or did not do during their care and treatment of the patient proximately caused his ultimate demise on June 7, 2008 or the stated cause of death of the said to be 5'10", 170 lb decedent.” (R. 1653). Dr. Garbitelli’s affirmation is so detailed in addressing plaintiff’s allegations of medical malpractice that it includes all possible claims against the South Shore defendants as follows: “Based upon my experience and expertise, and having reviewed all of the evidence in this matter including the decedent’s medical records, all party depositions and plaintiff’s pleadings, it is my opinion within a reasonable degree of medical certainty that at all times, especially during the period of time from June 4, 2008 to June 7, 2008 alleged in plaintiff’s verified bill of particulars, the South Shore defendants timely responded to the patient’s medical 3 condition; properly diagnosed the decedent’s medical conditions; properly treated the patient and properly scheduled proper and timely diagnostic tests; properly monitored the patient’s prescribed medications and properly coordinated the patient’s treatment with other treating providers through appropriate referrals; properly deferred to the patient’s following specialists with regard to continuing and/or stopping the patient’s prescription drug regimen; kept accurate and complete medical records of the patient; was mindful of the patient’s medical history throughout their care and treatment of the patient; did everything required of an internal medicine physician in light of the patient’s presenting conditions, complaints and findings, did not abandon the patient’s care but appropriately and properly referred the patient to qualified and competent specialists and appropriately deferred to them in regard to the patient’s care; and acted in accordance with good and accepted medical practice at all times throughout their care and treatment of the patient/decedent.” (R. 1653-1654). Accordingly, the proposition that Dr. Garbitelli’s affirmation is not specific enough is unfounded. B. Dr. Torelli and South Shore Family Practice Had No Duty to Perform any Act Upon Receipt of the June Letter The existence of a duty is a question of law to be determined by the court. Markley v. Albany Medical Center Hosp., 163 A.D.2d 639, 558 N.Y.S.2d 688 (3d 4 Dep’t 1990). 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 upon by the patient. Id. Dr. Torelli and South Shore Family Practice do not merely rely upon Burtman v. Brown, 97 A.D.3d 156, 945 N.Y.S.2d 673 (1st Dep’t 2012), to illustrate that they had no duty to perform any act upon receiving the June letter. Other cases are utilized to support the proposition that a physician’s duty of care is limited to those functions undertaken by the physician and relied upon by the patient. Specifically, in Wasserman v. Staten Island Radiological Associates, 2 A.D.3d 713, 770 N.Y.S.2d 108 (2nd Dep’t 2003), the Second Department dismissed the complaint against the internist, surgeon and radiologist, as these physicians did not depart from good and accepted medical practice by deferring to the orthopedic specialists who were treating plaintiff’s ankle. These physicians could not be charged with the duty to diagnose Reflex Sympathetic Dystrophy since they were not involved in that aspect of the care. Wasserman, 2 A.D. 3d at 714, 770 N.Y.S.2d at 109. In addition, Markley v. Albany Medical Center Hosp., 163 A.D.2d 639, 641, 558 N.Y.S.2d 688, 690 (3d Dep’t 1990), also supports this position. The 5 physicians providing general pediatric care to the patient could not be charged with a further duty to supervise treatment of a specialized nature - the patient’s chemotherapy treatment- where they did not assume such a responsibility for such treatment nor exercise control over its prescription or administration. As such, the pediatric physicians were entitled to summary judgment. Id. Plaintiff confuses the issue of duty by arguing that Dr. Garbitelli’s affirmation is silent regarding a duty of care after receipt of the June letter. Plaintiff is incorrect. Experts cannot provide opinions on the issue of duty. Whether a defendant doctor owes a duty of care to a plaintiff is a question of law for the court. Koeppel v. Park, 228 A.D.2d 288, 290, 644 N.Y.S.2d 210, 212 (1st Dep’t 1996). Dr. Charash attempts to improperly impose a duty on Dr. Torelli and South Shore Family Practice when no such duty exists. As the evidence clearly demonstrates, Dr. Torelli and South Shore Family Practice were not involved in the patient’s renal work up at all. The patient was referred to Dr. Goyal who made all decisions concerning the patient’s renal failure. (R. 419, 421-24). Dr. Goyal determined the kidney biopsy was necessary and did not contact Dr. Torelli and/or South Shore Family Practice for any clearance or approval to proceed with the biopsy and did not contact these parties for advice on antiplatelets. (R 421-427; 428-429). 6 C. Assuming Arguendo That There was a Duty, Dr. Torelli and South Shore Family Practice Followed all Accepted Standards of Medical Care Dr. Torelli’s office receipt of the June letter did not advise either him or his office to do anything. (R. 1538-1541). The letter was merely informative. Dr. Torelli and South Shore Family Practice would not know what to tell the patient about his antiplatelet medications as those were being monitored by the cardiologists. Moreover, as argued previously, while the letter is dated June 2, 2008, we do not know when Dr. Torelli and/or South Shore Family Practice actually received it or if it was received prior to the patient’s death on June 7, 2008. (R. 880, 881, 949). In addition and most importantly, Dr. Torelli and South Shore Family practice were not handling the aspect of the patient’s care which is at issue in this case - the renal failure and the antiplatelet medications. Upon learning of the patient’s renal failure, Dr. Torelli referred the patient to Dr. Goyal, the nephrology specialist, for a work up. (R. 876). Dr. Goyal determined the renal biopsy was necessary. (R. 421-429). He did not contact Dr. Torelli or South Shore Family Practice for any medical clearance or any questions regarding the suspension of antiplatelets. Dr. Goyal’s testimony makes clear that the only person contacted for clearance issues prior to the biopsy was the cardiologist’s office concerning the suspension of antiplatelet medications. (R. 429). 7 At no point in time, did Dr. Goyal, Dr. D’Agate or anyone call Dr. Torelli for clearance for the kidney biopsy or for advice about antiplatelets. The only reason Dr. Torelli and South Shore Family Practice are in this case is because of the June letter which discusses antiplatelet medications. Again, that letter was merely informative and did not require Dr. Torelli or South Shore Family Practice to do anything. D. Plaintiff is Confusing the Hernia Procedure with the Kidney Biopsy On March 26, 2008, Mr. Burns went to see Dr. Wodicka for an evaluation of his right inguinal hernia. Dr. Wodicka discussed a laparoscopic mesh repair procedure which was to be scheduled at the next available time/date at Southside Hospital and this required medical and cardiac clearance. (R. 1640-1641). The patient saw Dr. Patel who made recommendations regarding suspension of antiplatelets. (R. 570-573; R. 2715-2716). Dr. Patel sent a letter to Dr. Torelli about his recommendations in suspending the antiplatelets prior to the hernia surgery. (R. 2715-2716). Dr. Torelli also saw the patient on April 8, 2008, as instructed by Dr. Wodicka, for a work up for the hernia surgery. (R. 874-875). Once Dr. Torelli learned the patient had kidney failure, the hernia work up was stopped and the patient was sent to Dr. Goyal stat. (R. 876). When the patient saw Dr. Goyal, Dr. Goyal started a work up and plan of treatment for the kidney 8 failure. Other than changing the medications of the patient and advising Dr. Torelli of same, Dr. Torelli and South Shore Family Practice were not involved in the treatment plan for the kidney failure. Dr. Goyal made all decisions regarding the kidney failure and decided the patient needed a biopsy, giving the patient instructions to see his cardiologist only regarding suspension of antiplatelets. There was no involvement by the internists in these decisions and the patient was not told to see his internist for any reason concerning his renal failure. The clearance plaintiff is referring to and quoting from at page 36 of his brief refers to the proposed hernia surgery. The clearance had nothing to do with the later proposed kidney biopsy. Dr. Torelli would not know that he was needed to give clearance for a kidney biopsy, no physician asked him to give clearance for the kidney biopsy and the patient was not directed to see his internist for medical clearance. For all of the foregoing reasons, Dr. Torelli and South Shore Family Practice are entitled to dismissal of all claims against them. CONCLUSION For the reasons stated above and in Defendant-Appellant's original brief, it is respectfully requested that the decision of the court below be reversed and all claims against Dr. Torelli and South Shore Family Practice be dismissed. KELLER O'REILLY & WATSON BY: l!!#cuf&e !1b Attorneys for Defendants-Appellants MICHAEL TORELLI, M.D. and SOUTH SHORE FAMILY PRACTICE ASSOCIATES, P.C. 242 Crossways Park West Woodbury, New York 11797 (516) 496-1919 9 APPELLATE DIVISION - SECOND DEPARTMENT CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR section 670.10.3(f) that the foregoing appellant=s brief 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: Double Word Count: The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 1,814. Dated: Woodbury, New York May 28, 2015 Angela A. Cutone Keller O=Reilly & Watson, P.C. 242 Crossways Park Drive West Woodbury, New York 11797 T: (516) 496-1919 F: (516) 496-9791