Barbara Burns,, Appellant,v.Sudhir Goyal, et al., Defendants, Rakesh B. Patel, et al., Respondents.BriefN.Y.October 10, 2017 June 30, 2017 The Honorable John P. Asiello Chief Clerk and Legal Counsel for the Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Burns v. Goyal APL-2017-00091 Dear Mr. Asiello: This office represents the Defendants-Respondents, Michael Torelli, M.D. and South Shore Family Practice (hereinafter “Dr. Torelli”). We submit this letter brief in support of Dr. Torelli’s request that the unanimous decision of the Appellate Division, Second Department, be upheld. The Appellate Division, Second Department, correctly determined that Dr. Torelli had no legal duty with respect to decisions being made by specialists to whom the decedent, Mr. Burns, had been referred, particularly where there was no joinder of treatment, and Dr. Torelli was not even aware that a kidney biopsy was scheduled and then later postponed. Further, the Appellate Division, Second Department, correctly ascertained that Dr. Torelli established entitlement to summary judgment and that the affidavit of plaintiff’ expert, Dr. Bruce Charash, was conclusory and speculative, and therefore no question of fact was created as to defendant, Dr. Torelli. STATEMENT OF FACTS Decedent, Thomas Burns, first received treatment at South Shore Family Practice on April 22, 1999. (R. 831-832). Decedent would come to the practice on an irregular basis up until the last date he was seen, April 16, 2008. (R. 916). He was not seen by anyone at South Shore Family Practice from July 22, 2002 through August 31, 2006. (R. 902-1177). During that gap of treatment, the decedent was being followed by defendant, Rakesh B. Patel, and Suffolk Heart Group, LLP, for his cardiology issues. (R. 601-822). Due to the placement of Drug-Eluding Stents (DES) and the condition of decedent’s coronary arteries, Dr. Patel prescribed medications which included antiplatelets, Plavix, 75 mg every day, and aspirin, 325 mg every day. (R. 516, 603-605). Mr. Burns continued to see Dr. Patel on a regular basis. (R. 140). At a visit by decedent to Dr. Michael Torelli on February 28, 2008, Dr. Torelli diagnosed a right inguinal hernia. (R. 865-867). Dr. Torelli referred the decedent to surgical specialist, Dr. Wodicka, for treatment of the hernia (R. 867, 868). Dr. Wodicka requested medical and cardiac clearance. (R. 1641, 1642). Thomas Burns saw Dr. Patel on March 25, 2008 for pre-operative cardiac clearance for the proposed hernia repair procedure. (R. 570, 571, 572). Dr. Patel provided cardiac clearance for the procedure, but advised the patient to continue all medications except Plavix, which was to be held a few days pre-operatively. (R. 570-573). Dr. Patel testified Plavix could be stopped as much as five days before surgery and was to be resumed post-operatively whenever the surgeon performing the procedure felt it was safe to do so. (R. 571-573). Dr. Patel wrote a letter to Dr. Torelli and Dr. Goyal, dated March 25, 2008, documenting that the patient had been advised that if Plavix needs to be held for a few days prior to surgery, this will be safe, however, it should be resumed post-surgery. (R. 809-810). Dr. Patel left the decision of when to restart the Plavix post-operatively to the discretion of the surgeon, Dr. Wodicka. (R. 572-573). On April 8, 2008, Mr. Burns saw Dr. Torelli for medical clearance that had been requested by surgeon, Dr. Wodicka, with regard to potential inguinal hernia repair (R. 874-875, 1641, 1642). Pre-operative testing included laboratory studies reflecting elevated creatinine levels, indicating possible worsening kidney function and acute renal failure (R. 875). Dr. Torelli postponed the hernia surgery and referred the patient to kidney specialist co-defendant, Dr. Sudhir Goyal (R. 876). Mr. Burns saw Dr. Goyal on April 9, 2008 at which time the doctor changed medications and ordered laboratory studies (R. 396-397, 400-401, 403-404). The result of an ANA test was very high, indicative of lupus, and the urine protein test was very high reflecting something very wrong with the patient’s kidneys (R. 409, 410). The patient saw Dr. Torelli for the last time on April 16, 2008, with the diagnosis of renal failure (R. 877). Dr. Torelli ordered repeat laboratory studies and for the patient to return to his office in two weeks, but Mr. Burns never returned (R. 877, 878). The patient returned to Dr. Goyal on April 25, 2008, and the doctor’s impression was acute renal failure and nephrotic syndrome (R. 410-411, 412). Dr. Goyal changed and added some medications, ordered tests, and told the patient to return in 10 days (R. 410, 413, 414). When the patient returned to Dr. Goyal on May 5, 2008, the doctor’s impression was that the patient had kidney failure due to lupus, but could not treat him without a biopsy to confirm the diagnosis, as the drugs to treat lupus were toxic (R. 415, 417, 418, 424). Dr. Goyal informed the patient the biopsy had to be performed as there were no other procedures available (R. 424). Dr. Goyal only requested Mr. Burns obtain cardiac clearance due to the antiplatelet medications he was taking and the risk of bleeding (R. 419, 421-424). Dr. Goyal wanted the decedent to check with his cardiologist about stopping the antiplatelets prior to the biopsy, and come back with cardiac clearance (R. 423, 426, 427). Contrary to Appellant’s incorrect factual statement that the kidney biopsy was to take place at Southside Hospital, Dr. Goyal had scheduled the kidney biopsy at Good Samaritan Hospital (R. 496, 437). There is no evidence in the record that Mr. Burns was required to undergo a medical clearance with Dr. Torelli. The patient returned to see Dr. Goyal on May 29, 2008, but had not seen his cardiologist to obtain cardiac clearance (R. 428, 429). Dr. Goyal called Suffolk Heart Group, LLC and spoke to Dr. D’Agate. (R.1535). Dr. D’Agate advised Dr. Goyal it was safe to hold the antiplatelet therapy prior to the biopsy, but there should be prompt re-initiation of the platelet agent after the procedure (R. 1552- 1556, 1541-1542). Dr. D’Agate then sent a letter dated June 2, 2008, as per his office’s custom and practice, to Dr. Torelli, documenting his advice to the kidney specialist, Dr. Goyal, and copying Dr. Goyal’s office on that letter (R. 1541-1542, 1538-1540, 949). The physician performing the kidney biopsy would be responsible for advising the patient when it was safe to restart the antiplatelets (R. 1542-1543, 576). Dr. Torelli had referred Mr. Burns to Dr. Goyal for a kidney evaluation, but Dr. Torelli did not know that Dr. Goyal was going to have the patient undergo a kidney biopsy (R. 879-880). Mr. Burns stopped taking his antiplatelets on June 3, 3008, which was three days before the scheduled biopsy date of June 6, 2008 (R. 202, 256). The procedure was postponed (R. 202). There is no evidence Dr. Torelli was ever advised that a kidney biopsy was to be performed or that the procedure was cancelled. The patient died at home on June 7, 2008 (R. 204-207, 2127-2129). The autopsy report noted cause of death was cardiac arrest secondary to coronary artery disease (R. 2143-2153). It is unknown if decedent ever restarted his antiplatelets after the biopsy was cancelled. ARGUMENT Dr. Torelli and South Shore Family Practice Did Not Have Any Legal Duty to Act as Decedent was Under the Care of a Specialist The existence and scope of the tortfeasor’s duty is a legal question for the courts, which “fix the duty point by balancing factors, including the reasonable expectations of the parties and society generally, the proliferation of claims, the likelihood of unlimited or insured-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion and limitations of due channels of liability.” 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr, Inc., 96 N.Y.2d 280, 288, 750 N.E.2d 1097, 727 N.Y.S.2d 49 [2001]. Further, courts resolve legal duty questions by resorting to common concepts of morality, logic, and consideration of social consequences of imposing the duty. Tenuto v. Lederle Lab, 90 N.Y.2d 606, 612, 687 N.E.2d 1300, 665 N.Y.S.2d 17 [1997]. While moral and logical judgments are significant components of the analysis, it has also been found that the court is bound to consider the larger social consequences of their decisions and to tailor the notion of duty so that the “legal consequences or wrongs [are limited] to a controllable degree.” Eiseman v. State, 70 N.Y.2d 175, 187, 511 N.E.2d 1128, 518 N.Y.S.2d 608 [1987]. Foreseeability of injury does not determine the existence of duty. Eisenman at 187; 532 Madison Ave. Gourmet Foods, Inc. at 289. Thus, the absence of duty of care in a negligence action will entitle a party to summary judgment as, “the threshold question in any negligence action is … [whether the] defendant owe[s] a legally recognized duty of care to [the] plaintiff.” Oddo v. Queens Vil. Comm. For Mental Health for Jamaica Community Adolescent Program, Inc., 28 N.Y.3d 731, 735, 71 N.E.3d 946, 49 N.Y.S.3d 358 [2017]. A physician’s duty of care is limited to those functions undertaken by the physician and relied upon by the patient. Burtman v. Brown, 97 A.D.3d 156, 945 N.Y.S.2d 673 [1st Dep’t 2012]. A physician’s duty is circumscribed by the medical functions undertaken by that physician. Id. at 162. Plaintiff’s counsel incorrectly interprets Burtman and is attempting to improperly expand the duty of a primary care physician. In Burtman, plaintiff was three months pregnant and under the care of West Care Associates. Supra. In September of 2005, plaintiff, Burtman, had an abdominal mass in the upper left quadrant of the abdomen. Id. Dr. Brown, a physician from West Care Associates, requested a sonogram which was performed. Id. A radiology report was faxed to the defendant, Dr. Beautyman, a primary care physician, who noted the report referred to a benign fibroma but did not discuss the case with the patient or other doctors. Id. The West Care physicians adopted a “wait and see approach” and did not remove the mass. Id. In December of 2006, Dr. Grant, a plastic surgeon, removed the mass and the pathology noting it was an atypical lipoma, suggesting malignancy. Id. The First Department stated there was no triable issue of fact as to whether the primary care physician played any role in advising the plaintiff of the diagnosis and treatment of her abdominal mass. Id. The evidence revealed that West Care ordered the sonogram and was sent the results. Id. The report also includes notations that the West Care physician, Dr. Brown, discussed the case with the patient, and set the course of treatment. Id. Thus, while the primary care doctor was faxed the results, it is indisputable that the primary care physician was not involved in the setting or monitoring of the course of treatment prescribed for the abdominal mass. No one at West Care spoke to Dr. Beautyman about the report. The First Department concluded the primary care physician has no legal duty to supervise or override a course of treatment initiated by another physician actively treating the patient. Id. The imposition of liability for the negligence of one doctor for the actions of another doctor has been largely limited to situations of joint action and diagnosis or treatment, or some control of the course of treatment of one by the other. Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 547, 523 N.E.2d 284, 528 N.Y.S.2d 8 [1988]. The basic principles embodied within Burtman, supra, have been followed by other departments as well as this Court. In Wasserman v. Staten Island Radiological Assoc., the court ruled that "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". 2 A.D.3d 713, 770 N.Y.S.2d 108 [2nd Dept. 2003], citing Chulla v. DiStefano, 242 A.D.2d 657, 658, 662 N.Y.S.2d 570 [2nd Dept. 1997]; Markley v. Albany Med. Ctr. Hosp., 163 A.D.2d 639, 640, 558 N.Y.S.2d 688 [3rd Dept. 1990]). The defendants, Koeffler, Sithian, Silich, and D'Anna, in Wasserman established their prima facie entitlement to summary judgment by presenting evidence which showed that they did not depart from good and accepted medical practice by deferring to the orthopedic specialists for the assessment and treatment of the plaintiff's ankle, and that they could not be charged with a duty to diagnose RSD in the plaintiff's ankle, since they were not involved in this aspect of her care. See Yasin. v Manhattan Eye, Ear & Throat Hosp., 254 A.D.2d 281, 282-283, 678 N.Y.S.2d 112 [2d Dep’t 1998]; Chulla v DiStefano, supra; Markley v Albany Med. Ctr. Hosp., supra. In opposition, the plaintiff failed to raise a triable issue of fact. Wasserman, supra. The Court of Appeals has already confirmed these basic principles in Alvarez v. Prospect Hosp., which held that the duty of a physician was limited to the actions undertaken by that physician. 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]. In Alvarez, the defendant-radiologist, Dr. Stark, took and interpreted x- rays. Id. In support of the motion for summary judgment, Dr. Stark submitted deposition testimony and medical records which rebutted, with factual proof, plaintiff’s claim of malpractice. Id. This was sufficient evidence that Dr. Stark properly and timely diagnosed plaintiff’s condition and did not depart from accepted standards of care in the medical community. Id. The plaintiff failed to submit proof in affidavit form. Id. As such, the Court of Appeals granted the defendant’s summary judgment motion and recognized the limited duty undertaken by the radiologist and his limited role in the patient’s care. Id. The within action is strikingly similar to Burtman, and follows the line of authority set forth above. Supra. As stated previously, Dr. Torelli postponed the hernia surgery and referred the patient to a kidney specialist, Dr. Goyal, on April 8, 2008 when the patient’s lab tests showed elevated creatinine levels which revealed possible worsening kidney function and acute renal failure. (R. 875). The patient began treating with Dr. Goyal who directed the plan of care from April 2008 up until the patient’s death on June 7, 2008. Dr. Goyal established the plan of care which included changing medications, ordering lab studies and, ultimately, a kidney biopsy. (R. 396-397, 400-401, 403-404). Dr. Goyal instructed the patient to obtain cardiac clearance prior to the biopsy and, when the patient failed to do so, Dr. Goyal contacted the patient’s cardiologist to obtain same. (R.428, 429). Dr. Goyal spoke with Dr. D’Agate who provided instructions regarding the antiplatelet medication. (R. 1552-1556, 1541-1542). Dr. Torelli last saw the patient on April 16, 2008 (R. 916) and the patient expired June 7, 2008. During this time, the patient had no contact with Dr. Torelli. During this time, no physician or treatment provider contacted Dr. Torelli to discuss the patient. At no time, did Dr. Goyal or Dr. D’Agate contact Dr. Torelli about the plan of care, the medications of the patient or to obtain any medical clearance. Dr. Torelli did not know the patient was intending to undergo a kidney biopsy. Dr. D’Agate wrote a letter on June 2, 2008 addressed to Dr. Torelli and Dr. Goyal which reflected Dr. D’Agate’s medication instructions to Dr. Goyal, the kidney specialist. (R. 949). The letter does not request or require any action by Dr. Torelli. The letter is merely informative of the plan of care agreed upon by two specialists, Dr. D’Agate and Dr. Goyal. Although the letter is dated June 2, 2008, there is no indication as to when that letter was received or reviewed by Dr. Torelli. The patient died June 7, 2008. (R. 204-207, 2127-2129). It is unknown if Dr. Torelli received and reviewed the letter after the patient expired. Plaintiff’s argument that Dr. Torelli was charged with the duty to coordinate medications and the plan of care simply because of his status as a primary care physician is simply not supported by law. Notably, the patient saw Dr. Torelli on an irregular basis with a large gap in treatment from 2002 through 2006. Nor is this a case of concerted treatment, where the original physician participated in or exercised some degree of control over the acts of the treating physician. Kavanagh, supra, at 548. Dr. Torelli’s duty of care to the patient was fulfilled by referring the patient for his elevated kidney levels to the proper specialist, Dr. Goyal, who formulated a plan of care. Plaintiff incorrectly attempts to impose upon Dr. Torelli a duty to provide medical clearance, by referencing a form at Southside Hospital. Southside Hospital was the location for the planned hernia surgery, which was postponed due to renal failure. The kidney biopsy was to take place at Good Samaritan Hospital (R. 496, 437). Most importantly, Dr. Goyal did not require medical clearance for the kidney biopsy, never called Dr. Torelli for medical clearance and did not instruct the patient to obtain medical clearance. Dr. Goyal instructed the patient to obtain cardiac clearance from his cardiologists. (R. 419, 424-424). Plaintiff also incorrectly attempts to impose upon Dr. Torelli a duty to coordinate medications. While Dr. Torelli may have renewed a prescription for a medication if the patient needed a refill, this does not equate with the duty to inform the patient when to start and resume antiplatelets (when same had been discussed and decided upon by two other specialists) prior to a biopsy that Dr. Torelli had no knowledge was even planned. Dr. Torelli properly referred the patient to a kidney specialist. Once the referral was made, Dr. Torelli had no role in the care or treatment of the patient’s kidney condition. Dr. Torelli did not see the patient after April 16, 2008, did not make any decisions regarding the patient’s kidney failure, and was not called by any doctor or by the patient to address this issue. Accordingly, there is no legal authority to extend and expand the role of a primary care physician which would require Dr. Torelli to make phone calls to specialists, or to the patient, upon receipt of a letter that merely informs Dr. Torelli of a plan of care that was established by the nephrologist. Any medication instructions were discussed and agreed upon between the cardiologist and nephrologist. Plaintiff, with no legal precedent whatsoever, essentially begs the court to expand the legal duties of a primary care physician (PCP) for the independent actions of other medical specialists, to whom the decedent was referred. Plaintiff desires of the court to create a duty for the PCP, to not only oversee the decision- making of specialists in areas of medicine beyond the PCP’s circumscribed duties, but to micromanage treatment which is beyond his control. The court has noted that the “implications of such an enlarged liability would tend to discourage a physician from arranging to have another care for his patients on his illness or absence and thus curtail the availability of medical service.” See Kavanagh, supra, at 548. Although the Kavanagh case involves a covering physician, the argument is analogous to situations where a specialist is involved, and where, as here, there is no joinder of treatment or concerted effort in the treatment by the primary care physician and the specialist. Id. Thus, there is no legal duty on behalf of the primary care physician and his practice, and when there is no legal duty, summary judgment must be granted as to the defendant. Dr. Torelli and South Shore Family Practice Established Their Prima Facie Showing for Summary Judgment as a Matter of Law The Court of Appeals states that, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” Alvarez, supra, at 324. “To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor, and he must do so by tender of evidentiary proof in admissible form.” Friends of Animals, Inc. v. Assoc. Fur Manufacturers, 46 N.Y.2d 1065, 1067, 390 N.E.2d 298 [1979]. In Winegard, the Court of Appeals held that “bare conclusory assertions echoed by all three defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle defendants to summary judgment”. Alvarez, supra, at 325-326, citing Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853. The Court of Appeals contrasted the scenario in Winegard with Alvarez and found that the defendant-physician’s papers refuted, “by specific factual reference the allegations of malpractice made by plaintiff in her amended complaint and bill of particulars.” Alvarez, supra, at 326. Defendants-Respondents, Dr. Torelli and South Shore, submitted as evidence in support of their motion for summary judgment the depositions of all parties, medical records of all defendants and an affirmation from an expert in internal medicine, Dr. Vincent Garbitelli. Plaintiff-Movant asserts the dates of alleged negligence in her Bill of Particulars as against Dr. Torelli and South Shore from June 4, 2008 to June 7, 2008. The Plaintiff-Movant alleges that Dr. Torelli and South Shore were negligent in failing to properly continue decedent’s prescription drug regimen; improperly stopping decedent’s prescription drug regimen; failing to prevent decedent’s heart attack; failing to anticipate and prevent decedent’s heart attack; and failing to anticipate the dangers associated with decedent’s prescription drug regimen and subsequent failure to restart decedent’s prescription drug regimen. (R. 106-107). Plaintiff-Movant’s expert asserts two departures against Dr. Torelli: 1) failure to act upon receipt of June 2, 2008 letter and 2) failure to provide medical clearance for the intended kidney biopsy which had been scheduled to take place June 6, 2008. (R. 2683, 2736, 2737). The evidence before the court clearly establishes that there are no material issues of fact for a jury to decide. The Plaintiff-Movant’s claims of medical malpractice as to Dr. Torelli and South Shore set forth in the Bill of Particulars and Expert Affirmation are limited to issues concerning the suspension and reinstitution of antiplatelet medications. (R. 106, 2736, 2737). Defendants-Respondents’ expert in internal medicine, Dr. Vincent Garbitelli, reviewed the medical records and deposition testimony before the court and based on his review, opined that nothing Dr. Torelli or South Shore did or did not do was a departure from the standard of care nor proximately caused the decedent’s death. Dr. Garbitelli opined within a reasonable degree of medical certainty that Dr. Torelli and South Shore rendered care and treatment within the standard of care to the decedent. This included diagnosing and treating various medical conditions; referring the decedent to proper specialists, and when applicable, coordinating the care of the specialists; referring the decedent for diagnostic testing; and monitoring the decedent’s prescribed drugs for any interactions between medications. (R. 1646-1655). Dr. Garbitelli based his opinion on his review of the evidence before the court, including the medical records and deposition testimony. Based on his review, Dr. Garbitelli specifically stated that, “none of the SOUTH SHORE defendants spoke with the patient regarding the intended kidney biopsy nor his medications in conjunction with the intended procedure”. (R. 1653). Dr. Garbitelli opined that even if Dr. Torelli or South Shore had spoken to the decedent regarding the biopsy, “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.” (R. 1646-1655). It is Dr. Garbitelli’s opinion, within a reasonable degree of medical certainty, and based upon the evidence, that “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, suspension of medications in advance for same, the intended reinitiation of such following the intended procedure, nor the cancelling of the biopsy”. (R. 1653). The evidence before the court and the affirmation of Dr. Garbitelli establish defendants Dr. Torelli and South Shore’s entitlement to judgment as a matter of law. Plaintiff Failed to Produce Sufficient Evidentiary Proof in Admissible Form to Establish Triable Issues of Fact Once the movant has shown their prima facie entitlement for summary judgment, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” Alvarez, supra, 324. In a negligence action, a plaintiff must establish that the defendant’s alleged negligence was a substantial factor in producing the plaintiff’s injury. Derdiarian v. Felix Contractor Corp., 51 N.Y.2d. 308, 414 N.E.2d 666 [1980]. “General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician’s summary judgment motion” Alvarez, supra, at 325. In Witt v. Agin et al., the court determined that defendant Schneer had met his burden for entitlement for summary judgment as a matter of law and, as such, the burden shifted to the plaintiff to prove triable issues of fact. 112 A.D.2d 64, 490 N.Y.S.2d 778 [1st Dept. 1985], affirmed Witt v. Agin et al, 67 N.Y.2d 919, 492 N.E.2d 1231 [1986]. In Witt, plaintiff’s expert submitted a bare, two paragraph conclusory assertion that Dr. Schneer departed from acceptable psychiatric practice in failing to direct a full medical workup. Id. The First Department held, and the Court of Appeals affirmed, that the plaintiff had failed to establish a meritorious cause of action. Id. Similarly, in the present action, the plaintiff’s expert affirmation is bare, short and conclusory. (R. 2736-2737). The expert provides no evidence to support his allegations that Dr. Torelli and South Share departed from the standard of care. Rather, plaintiff’s expert makes conclusory remarks and fails to cite to anything in the medical records or deposition testimony, and/or his own medical research as proof of his assertions. (R. 2736-2737). See Pullman v. Silverman, 28 N.Y.3d 1060, 1063, 66 N.E.3d 663, 665 [2016]. “Where the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment.” Diaz v. N.Y. Downtown Hosp., 99 N.Y.2d 542, 544, 784 N.E.2d 68 [2002]. In Diaz, the Court of Appeals determined that the plaintiff’s expert failed to provide any factual basis for the alleged duty that the plaintiff sought to impose on the defendant-hospital. Id. In the affirmation, there was no reference to either personal knowledge from professional experience or any evidence that other hospitals had assumed the same standard of care. Id. The Court found, “the expert’s affirmation lacked probative force and was insufficient as a matter of law to overcome the hospital’s motion for summary judgment…” Id at 545. Plaintiff’s expert affirmation fails to refute the evidence presented by Dr. Garbitelli, but rather makes bare conclusory allegations regarding Dr. Torelli’s alleged departures. The plaintiff’s expert affirmation states that Dr. Torelli departed from good and accepted practice by failing to act upon receipt of the June 2, 2008 letter. (R. 23737). However, plaintiff’s expert fails to state what the standard of care required Dr. Torelli to do. He does not address the fact that the decedent had not been seen by Dr. Torelli since April 16, 2008 or that Dr. Goyal directed the decedent’s plan of care from April 2008, up until the patient’s death on June 7, 2008. Plaintiff’s expert does not address the fact that there is no evidence that anyone at South Shore was aware of when or where the decedent’s kidney biopsy was to take place or the fact that the biopsy was cancelled. The lower appellate courts have held that an expert affirmation is insufficient to overcome defendant’s prima facie entitlement to summary judgment when it is conclusory, speculative, and devoid of evidence in support of claims. Abalola v. Flower Hosp., 44 A.D.3d 522, 522 843 N.Y.S.2d 615 [1st Dept. 2007]; Macias v. Ferzli, 131 A.D.3d 673, 676-677, 15 N.Y.S.3d 466 [2nd Dept. 2015]; and Douglass v. Gibson, 218 A.D.2d 856, 857, 630 N.Y.S.2d 401 [3rd Dept. 1995]. Plaintiff’s expert affirmation states in a conclusory manner that “medical clearance was a pre-requisite to allowing the biopsy to take place.” (R. 2737). The expert does not cite to any medical records, deposition testimony in evidence, or medical treatise which supports this assertion. Additionally, the courts have also held that an affirmation is insufficient to establish triable issues of fact if it is conclusory, fails to address details from opposing expert affirmation, ignores important facts, or is based on factual errors. Foster-Sturrup v. Long, 95 A.D.3d 726, 945 N.Y.S.2d 246 [1st Dept. 2012]; Macias, supra, at 676-677; Douglass, supra, at 857. In her letter brief, the plaintiff inaccurately surmises that the kidney biopsy was taking place at Southside Hospital and that medical clearance was necessary from the primary care physician. (P. 12). However, the kidney biopsy was scheduled for Good Samaritan Hospital, not Southside. (R. 496, 437). As such, the plaintiff’s expert has absolutely no basis for his claim that Dr. Torelli was required to give medical clearance in order for the biopsy to take place. The plaintiff’s expert affirmation in the present action also fails to address Dr. Garbitelli’s assertion that although no one at South Shore had been involved in the scheduling, or medications in conjunction with the intended procedure, even if they had, it would have been appropriate to defer to the instructions and medication instructions given to the decedent by his following specialists, namely Dr. Goyal and Suffolk Heart Group, LLP. (R. 1646-1655, 2736-2737). As such, the plaintiff’s expert has no basis for stating it was incumbent on Dr. Torelli to determine whether the decedent was able to physically withstand the kidney biopsy. On the issue of causation, the record reflects that Dr. Patel established, via the expert affidavit of Dr. Jacob Shani, that the decedent’s demise was unrelated to the allegation of failure to reinitiate the anti platelets (R. 2188-2203 ). Therefore, the alleged actions or inactions of Dr. Torelli would not have led to the demise of the decedent. Dr. Torelli's alleged actions or inactions could not have caused the demise of decedent. Appellant-Plaintiff's expert affidavit by Dr. Bruce Charash, as pointed out in the record below, makes only bare conclusory statements regarding an unseen thrombus, with no heart damage, without any basis in evidence, medical research or scientific fact. (R. 2727-2737, 2750-2752). See Pullman at 1063; Abalola at 522; Clarke v. Helene Curtis, Inc., 293 A.D.2d 701, 742 N.Y.S.2d 325 [2nd Dept. 2002]. Further, Appellant-Plaintiff's expert, Dr. Charash, did not specify what action Dr. Torelli should have taken upon receipt of the June 2, 2008 letter, or how it would have prevented plaintiff's demise. CONCLUSION For the foregoing reasons, this court should uphold the Appellate Division, Second Department's Decision and Order granting summary judgment as to defendants, Michael Torelli, M.D. and South Shore Family Practice Assoc., P.C. JV ejy·.···.·.' truly your.s,····.· .c ... ··~ .. ·'.·~... . . .~.. · . ··· ' ~' p . .. ! ./ ~-11 /~tc,,···1 //"l CvtNtcENT 1. pf TRo£zo u::) -· ANGELA A. CUTONE KATHLEEN V. MEARA Burns v. Sudhir Goyal, M.D., et al. APL-2017-0091 RULE 500.1(F) DISCLOSURE STATEMENT Defendant-Respondent, South Shore Family Practice Associates, P.C., is a domestic professional corporation wholly owned by defendant, Michael W. Torelli, M.D. There are no parents, affiliates or subsidiaries. NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE Burns v. Sudhir Goyal, M.D., et al. APL-2017-0091 I hereby certify pursuant to 22 NYCRR Part 500.1(j) 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 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, corporate disclosure statement, questions presented, statement of related cases, or any authorized addendum containing statutes, rules, regulations, etc., is 5,109 words. Dated: Woodbury, New York June 30, 2017 Vincent J. Petrozzo Keller, O’Reilly & Watson, P.C. 242 Crossways Park West Woodbury, New York 11757 (516) 496-1919 Attorneys for Defendants-Respondents