On September 12, 2016 a
Exhibit,Appendix
was filed
involving a dispute between
Cheryl Kausner,
Thomas Kausner,
and
Andrew Cappuccino M.D.,
Buffalo Spine Surgery, Pllc,
Eastern Niagara Hospital, Inc.,
Eastern Niagara Radiology And Nuclear Medicine Associates Pc,
Eric Dean Rpa-C,
Harnath B. Clerk M.D.,
Harnath B. Clerk, M.D., P.C.,
Robert E. Lutnick M.D.,
for Torts - Medical, Dental, or Podiatrist Malpractice
in the District Court of Niagara County.
Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 11/15/2017
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 11/15/2017
r
....
,..- 1#,
p 1
Broadcast RePOrt
01/31/2017 14:45
serial No. A7PV011003540
TC: 114557
Addressee Start Time n1e Prints Resu11 Note
2806421 01-31 14:34 00:03: 12 004/004 OK
8496503 01-31 14:38 00:00:45 004/004 OK
8522535 01-31 14:39 00:00:52 004/004 OK
8525649 01-31 14:45 00: 00: 50 002/004 OK
Note
Result
FITZGERALD&: ROLLER, P.C.
ATTORNEYS AND COUNSELORS AT LAW
S09 LIBERTY BUILDING
424 ~ I N STREET
BUFFA.LC>, NEW YORK 14202
TEL: (716) 8S2-2000 FAX: (716) 8S2- 2002
FACSIMILE
January 31, 2017
TO: FAX NO. PHONE NO . (optional)
Hon_ Richard c_ Kloch, Sr-, J_s_c_ 280-6421 280-6406
cc: Brian J_ Weidner, Esq_ 849-6503 849-6500
cc: .Joseph v_ lvfcCarthy. Esq. 852-2S35 852-0400
cc: lvfic hael J .Roach, Esq_ 852-5649 852-5533
FROlvf: Brian P. Fitzgerald, Esq .
RE: Kausner v. Cappuccino, et al.
Index No. E159518/2016
PC File No_ 6646
TOTAL PAGES: 4
(lncludin& Cover Sheet.)
CO:rvnvfENTS: Please refer to the attached correspondence. ~rhanlc you.
THIS MATil R.IAL REINO TR.ANSMl~D IS CONFIDENTIA L AND SOLELY FOR THE PER.SON OR BN"T'ITV NAMBD ABOVE.IP VOU AR..B
NOT THI? 1,.,.l. ENDED RECIPIENT. PLEASI! DO NOT A.SAD THE COMMVNICATlON.
IP YOU HAVS R.£CBIVED Tiff? MATBIU.AL 1'N
PLF..ASI! NOTIPV US BY T&..BPH ONE AND RBTUlt.N Tl-Hi COMMUNJCA~ON TO US AT THE ABOVE ADDRESS VJA TH£ """41L.
FIR.It.OR
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF •DOC.
'...,I' I •
NO. 38 RECEIVED NYSCEF: 11/15/2017
FITZGERALD&: ROLLER, P.C.
BRIAN P. FITZGERALD ATTORNEYS AND COUNSELORS AT LAW
DEREK J. ROLLER 509 LIBERTY BUILDING
424 MAIN STREET
BUFFALO, NEW YORK 14202-3505
(716) 852-2000
TELEFAX: {716) 852-2002
January 31, 20 I 7
Hon. Richard C. Kloch, Sr., J.S.C. Via Facsimile
Niagara County Courthouse
175 Hawley Street
Lockport, New York 14094
Re: Kausner v. Cappuccino, et al.
Index No. El59518/2016
F&R. PC File No. 6646
Dear Judge Kloch:
Your Honor has scheduled this for a preliminary conference by telephone on
February 2, 201 7 at 11 :00 a.m. Your Honor has directed that I initiate the conference
call. I have made arrangements for a conference call as follows:
Please dial : 1-866-423-8755
Enter Participant Passcode: 734223
Pursuant to the Court's request, this case involves plaintiffs Thomas and Cheryl
Kausner.
On September 1, 2015, Thomas Kausner, then age 61, underwent anterior cervical
discectomy and fusion surgery at levels C3 through C7 at defendant Eastern Niagara
Hospital by defendant Andrew Cappuccino, M.D. and his physician assistant defendant
Eric Dean, P.A. During Dr. Cappuccino's performance of a foraminotomy at C5-6,
massive bleeding was encountered. Dr. Cappuccino used various hemostatic agents to
control this bleeding and then completed the surgery. The operative record, as well as
other records, reflect blood loss of 1200 to 1300 milliliters (1.25 quarts, approximately
20% of the average person's blood volume).
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF
'...,/..
DOC.
'
NO. 38
r' RECEIVED NYSCEF: 11/15/2017
Hon. Richard C. Kloch, Sr., J .S.C.
February I, 2017
Page 2
Post operatively, Mr. Kausner exhibits significant signs of spinal cord
compression and left vertebral artery injury. Despite the considerable bleeding
encountered during the surgery, and significant post op signs of trouble, Dr. Cappuccino
failed to order a vascular consult or transfer Mr. Kausner to another institution where
proper vascular care could be rendered. Additionally, hospital staff failed to properly
monitor Mr. Kausner' s condition and report on his condition to Dr. Cappuccino and
physician assistant Dean.
Two days post-op, on September 3, 2015, Mr. Kausner was rendered a
quadriplegic. He was transferred to Gates Vascular Institution and Buffalo General
Hospital where emergency surgery was performed in the early evening by Drs. Pollina
and Kowalski. They opened up Mr. Kausner's neck, removed all the hardware placed by
Dr. Cappuccino, removed the C6 vertebrae, decompressed the spinal cord which was
being damaged causing paralysis, removed a large hematoma, and significant packing
material which had been placed by Dr. Cappuccino to control bleeding. Early on the
morning of September 4, the next day, two stents were placed to repair the left vertebral
artery which had been damaged by Dr. Cappuccino.
Mr. Kausner remained at Buffalo General Hospital for some time and then was
discharged to Erie County Medical Center for rehab. He has gone through a long period
of rehab but continues to have significant deficits with the use of his right arm and hand.
He also sustained frontal lobe damage due to ischemia which has caused judgment and
concentration problems . As a result, Mr. Kausner can no longer work as a pharmacist
and is totally disabled. He was awarded Social Security Disability benefits some time
ago. Mr. Kausner had been employed as a pharmacist with Walgreens earning some
$140,000.00 plus per year. He had intended to work another ten years so there are
substantial past and future lost wages involved in this case.
Mr. Kausner had medical insurance through Blue Cross Blue Shield of Illinois and
I believe that would have been part of an ERISA Plan, thus these medical expenses will
have to be claimed and are recoverable. Additionally, Mr. Kausner is Medicare eligible
as he is on Social Security Disability.
I am in receipt of the Court's form regarding liens and as this matter progresses I
will complete it and send it in.
I am in the process of looking into notification to Medicare and securing all of the
medical bills involved. Tomorrow, I will be responding to all outstanding defense
discovery demands and serving plaintiffs' discovery demands.
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF
v .DOC.
•· NO. 38
~ RECEIVED NYSCEF: 11/15/2017
Hon. Richard C. Kloch, Sr., J.S.C.
February l , 201 7
Page 3
Thank you for your Honor's attention.
Very truly yours,
BPF/ec
cc: Brian J. Weidner, Esq. (via fax)
Michael J. Roach, Esq. (via fax)
Joseph V. McCarthy, Esq., Esq. (via fax)
Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 11/15/2017 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 11/15/2017 r .... ,..- 1#, p 1 Broadcast RePOrt 01/31/2017 14:45 serial No. A7PV011003540 TC: 114557 Addressee Start Time n1e Prints Resu11 Note 2806421 01-31 14:34 00:03: 12 004/004 OK 8496503 01-31 14:38 00:00:45 004/004 OK 8522535 01-31 14:39 00:00:52 004/004 OK 8525649 01-31 14:45 00: 00: 50 002/004 OK Note Result FITZGERALD&: ROLLER, P.C. ATTORNEYS AND COUNSELORS AT LAW S09 LIBERTY BUILDING 424 ~ I N STREET BUFFA.LC>, NEW YORK 14202 TEL: (716) 8S2-2000 FAX: (716) 8S2- 2002 FACSIMILE January 31, 2017 TO: FAX NO. PHONE NO . (optional) Hon_ Richard c_ Kloch, Sr-, J_s_c_ 280-6421 280-6406 cc: Brian J_ Weidner, Esq_ 849-6503 849-6500 cc: .Joseph v_ lvfcCarthy. Esq. 852-2S35 852-0400 cc: lvfic hael J .Roach, Esq_ 852-5649 852-5533 FROlvf: Brian P. Fitzgerald, Esq . RE: Kausner v. Cappuccino, et al. Index No. E159518/2016 PC File No_ 6646 TOTAL PAGES: 4 (lncludin& Cover Sheet.) CO:rvnvfENTS: Please refer to the attached correspondence. ~rhanlc you. THIS MATil R.IAL REINO TR.ANSMl~D IS CONFIDENTIA L AND SOLELY FOR THE PER.SON OR BN"T'ITV NAMBD ABOVE.IP VOU AR..B NOT THI? 1,.,.l. ENDED RECIPIENT. PLEASI! DO NOT A.SAD THE COMMVNICATlON. IP YOU HAVS R.£CBIVED Tiff? MATBIU.AL 1'N PLF..ASI! NOTIPV US BY T&..BPH ONE AND RBTUlt.N Tl-Hi COMMUNJCA~ON TO US AT THE ABOVE ADDRESS VJA TH£ """41L. FIR.It.OR FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF •DOC. '...,I' I • NO. 38 RECEIVED NYSCEF: 11/15/2017 FITZGERALD&: ROLLER, P.C. BRIAN P. FITZGERALD ATTORNEYS AND COUNSELORS AT LAW DEREK J. ROLLER 509 LIBERTY BUILDING 424 MAIN STREET BUFFALO, NEW YORK 14202-3505 (716) 852-2000 TELEFAX: {716) 852-2002 January 31, 20 I 7 Hon. Richard C. Kloch, Sr., J.S.C. Via Facsimile Niagara County Courthouse 175 Hawley Street Lockport, New York 14094 Re: Kausner v. Cappuccino, et al. Index No. El59518/2016 F&R. PC File No. 6646 Dear Judge Kloch: Your Honor has scheduled this for a preliminary conference by telephone on February 2, 201 7 at 11 :00 a.m. Your Honor has directed that I initiate the conference call. I have made arrangements for a conference call as follows: Please dial : 1-866-423-8755 Enter Participant Passcode: 734223 Pursuant to the Court's request, this case involves plaintiffs Thomas and Cheryl Kausner. On September 1, 2015, Thomas Kausner, then age 61, underwent anterior cervical discectomy and fusion surgery at levels C3 through C7 at defendant Eastern Niagara Hospital by defendant Andrew Cappuccino, M.D. and his physician assistant defendant Eric Dean, P.A. During Dr. Cappuccino's performance of a foraminotomy at C5-6, massive bleeding was encountered. Dr. Cappuccino used various hemostatic agents to control this bleeding and then completed the surgery. The operative record, as well as other records, reflect blood loss of 1200 to 1300 milliliters (1.25 quarts, approximately 20% of the average person's blood volume). FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF '...,/.. DOC. ' NO. 38 r' RECEIVED NYSCEF: 11/15/2017 Hon. Richard C. Kloch, Sr., J .S.C. February I, 2017 Page 2 Post operatively, Mr. Kausner exhibits significant signs of spinal cord compression and left vertebral artery injury. Despite the considerable bleeding encountered during the surgery, and significant post op signs of trouble, Dr. Cappuccino failed to order a vascular consult or transfer Mr. Kausner to another institution where proper vascular care could be rendered. Additionally, hospital staff failed to properly monitor Mr. Kausner' s condition and report on his condition to Dr. Cappuccino and physician assistant Dean. Two days post-op, on September 3, 2015, Mr. Kausner was rendered a quadriplegic. He was transferred to Gates Vascular Institution and Buffalo General Hospital where emergency surgery was performed in the early evening by Drs. Pollina and Kowalski. They opened up Mr. Kausner's neck, removed all the hardware placed by Dr. Cappuccino, removed the C6 vertebrae, decompressed the spinal cord which was being damaged causing paralysis, removed a large hematoma, and significant packing material which had been placed by Dr. Cappuccino to control bleeding. Early on the morning of September 4, the next day, two stents were placed to repair the left vertebral artery which had been damaged by Dr. Cappuccino. Mr. Kausner remained at Buffalo General Hospital for some time and then was discharged to Erie County Medical Center for rehab. He has gone through a long period of rehab but continues to have significant deficits with the use of his right arm and hand. He also sustained frontal lobe damage due to ischemia which has caused judgment and concentration problems . As a result, Mr. Kausner can no longer work as a pharmacist and is totally disabled. He was awarded Social Security Disability benefits some time ago. Mr. Kausner had been employed as a pharmacist with Walgreens earning some $140,000.00 plus per year. He had intended to work another ten years so there are substantial past and future lost wages involved in this case. Mr. Kausner had medical insurance through Blue Cross Blue Shield of Illinois and I believe that would have been part of an ERISA Plan, thus these medical expenses will have to be claimed and are recoverable. Additionally, Mr. Kausner is Medicare eligible as he is on Social Security Disability. I am in receipt of the Court's form regarding liens and as this matter progresses I will complete it and send it in. I am in the process of looking into notification to Medicare and securing all of the medical bills involved. Tomorrow, I will be responding to all outstanding defense discovery demands and serving plaintiffs' discovery demands. FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF v .DOC. •· NO. 38 ~ RECEIVED NYSCEF: 11/15/2017 Hon. Richard C. Kloch, Sr., J.S.C. February l , 201 7 Page 3 Thank you for your Honor's attention. Very truly yours, BPF/ec cc: Brian J. Weidner, Esq. (via fax) Michael J. Roach, Esq. (via fax) Joseph V. McCarthy, Esq., Esq. (via fax)