Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017
STATE OF NEW YORK
SUPREME COURT : NIAGARA COUNTY
THOMAS and CHERYL KAUSNER, Individually
and as Husband and Wife
Plaintiffs' Verified
Plaintiffs Bill of Particulars in
Response to Hamath B.
V. Clerk, M .D ., P.C. and
Harnath B. Clerk, M.D.'s
BUFFALO SPINE SURGERY, PLLC, Demand
ANDREW CAPPUCCINO, M.D.,
ERIC DEAN, RP A-C,
HARNATH B. CLERK, M.D., P.C.,
HARNATH B. CLERK, M.D., Index No. E159518/2016
EASTERN NIAGARA HO SPITAL, INC., and
ROBERT E. LUTNICK, M.D.
Defendants
The Plaintiffs, Thomas and Cheryl Kausner, Individually and as Husband and Wife,
by their attorneys, Fitzgerald & Roller, P.C., in response to Defendants Hamath B . Clerk,
M.D., P.C. and Harnath B. Clerk, M.D.'s Demand for Verified Bill of Particulars, responds
as follows:
1. Plaintiffs' residence at the time this action was commenced was 9811 Deer
Creek Road, Portville, New York 14770.
2. Thomas Kausner, date of birth , 1954.
Cheryl Kausner, date of birth 1959.
3. Thomas Kausner, -2755.
Cheryl Kausner, -9356.
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4. Dates of treatment rendered are from September 1 through September 3,
2015.
5. September 1, 2015 through September 3, 2015.
6. The place of treatment was Eastern Niagara Hospital.
7. Each and every particular injury or condition from which plaintiff claims he
was suffering each time he sought treatment from defendants is an improper demand and
beyond the scope of a proper bill of particulars.
8. Each and every act of negligence, commission or omission which plaintiffs
will claim as the basis of the alleged malpractice of the defendants, their agents, servants
and employees, including but not limited to consultants, radiologists and other personnel,
is as follows:
a. Failure to order prompt, immediate, and emergent transfer of Thomas
Kausner when he was in need of a transfer to Gates Vascular Institute or
Buffalo General Hospitals;
b. Failure to order an angiogram STAT and develop a plan to repair an
injury to the left vertebral artery immediately or in a timely fashion;
c. Failed to recognize left vertebral artery injury;
d. Failed to assess the significance of packing with respect to left vertebral
artery injury;
e. Failure to order STAT MRI's and MRA's;
f. Failing to timely and properly assess neurological signs and symptoms
2
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and the need for emergent care relative to same;
g. Failed to properly assess the patient on the dates of September 1, 2 and 3,
2015;
h. Failed to properly assess and treat and determine the cause for
neurological signs and symptoms including difficulty breathing, high
blood pressure, inability to urinate, weakness, and numbness and/or
communicate significant findings to Andrew Cappuccino, M.D. and Eric
Dean, RP A-C;
1. Failing to timely and properly assess and correct left vertebral artery
mJury;
J. Failing to diagnose swelling in or near the spinal cord, including but not
limited to a large hematoma and collection of fluid compromising the
spinal cord;
k. Failure to take into account the expansion of hemostatic agents;
l. Failing to assess the spinal cord and the left vertebral artery injury
post-op;
m. Failing to discontinue Toradol;
n. Failing to appreciate the significance of urinary retention and high blood
pressure and prescribing medications for same without determining the
cause;
o. Failing to do timely neuro checks, document same, or order same;
3
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NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017
p. Failing to determine why the Jackson Pratt drain was not draining;
q. Failure to transfer Thomas Kausner to Gates Vascular Institute/Buffalo
General Hospital on an emergent basis;
r. Negligently allowing a predetermined "set" of post-op orders to be acted
upon and administered;
s. Failing to monitor Thomas Kausner's symptoms and administer
appropriate patient care continuously in the intensive care unit;
t. Failed to correctly interpret and act upon the results of the MRI and MRA
examinations;
u. Failure to correctly assess blood loss;
v. Failed to discuss case with Andrew Cappuccino, M.D. and Eric Dean,
RPA-C;
w. Failed to review the operative record;
x. Assessing Thomas Kausner without requiring to seeing him;
y. Failure to timely monitor and assess and then communicate Thomas
Kausner's critical signs and symptoms on the dates of September 1, 2 and
3, 2015;
z. Failing to report weakness to Mr. Kausner ' s doctors, including Andrew
Cappuccino, M.D. and Eric Dean, RPA-C;
aa. Failure to communicate patient information in a timely and correct
fashion with Dr. Cappuccino relative to Thomas Kausner's condition on
4
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the various dates of September 1, 2 and 3, 2015;
bb.Allowing the administration of doses ofToradol when same was
contraindicated;
cc. Failure to obtain immediate post-op vascular consult and vascular
surgical treatment and initiate steps to repair the vertebral artery and
failure to diagnose, avoid and stop compression of the spinal cord and
interruption and/or decrease of vertebral artery blood flow;
dd. Failing to promptly and emergently implement a plan of action to prevent
and control bleeding post-operatively and prevent acute central nervous
systems ischemia;
ee. Failed to appreciate significance of dropping and fluctuating 0 2 SATS;
ff. Failed to appreciate significance of numbness in fingers and hands;
gg. Failed to appreciate significance of inability to urinate;
hh. Failed to appreciate significance of patient lethargy;
11. Failed to appreciate significance of incontinence;
JJ. Failure to keep mean arterial pressure below 80;
kk. Failure to recognize arterial injury;
11. Failed to order or see that CMS checks were done and/or done every hour
and failed to do these himself;
mm. Failed to correctly initiate a plan of treatment to control Thomas
Kausner's dangerously high blood pressure.
5
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9. The dates of negligence occurred on September 1, 2015 through September
3, 2015.
10. Whether the malpractice of defendants occurred in the course of any
emergency treatment, procedure or surgery is an improper demand and beyond the scope
of a proper bill of particulars.
11. With respect to the acts or omissions performed by another of whose acts
omissions defendants had legal responsibility, this is an improper demand and beyond the
scope of a proper bill of particulars.
12. With respect to accepted medical practices, customs and medical standards
claimed were violated and departed from by defendants or any person for whom
defendants are legally responsible, this is an improper demand and beyond the scope of a
proper bill of particulars.
13. With respect to whether it is claimed that defendants and/or persons for
whom defendants are legally responsible failed to perform their professional duties in
accordance with any manual, rule, regulation, statute, law or ordinance, this is an improper
demand and beyond the scope of a proper bill of particulars.
14. With respect to equipment or other medical instrument being defective or
otherwise improper, this is an improper demand and beyond the scope of a proper bill of
particulars.
15. Every injury sustained by Thomas Kausner consists of the following:
catastrophic cervical cord impairment;
6
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Central cord syndrome;
ischemia lateral frontal lobe;
loss of C-6 cervical vertebrae;
left vertebral artery injury, extensive bleeding and post-operative
bleeding;
compression of the spinal cord and pseudoaneurysm of the left vertebral
artery;
pain and suffering from the effects of the left vertebral artery injury and
compression of the spinal cord and pseudoaneurysm of the left vertebral
artery;
inability to pass urine;
difficulty breathing;
weakness;
paralysis;
inability to walk;
brain injury;
surgery at Buffalo General Hospital on September 3, 2015 to remove all
hardware from his neck;
stenting procedures on the left vertebral artery on September 4, 2015;
acute weakness in bilateral upper extremities;
severe anterior cord compression;
7
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left side vertebral artery pseudoaneurysm at C5-6;
weakness of all extremities and impaired mobility and ambulation;
traumatic left vertebral pseudoaneurysm;
large hematoma compressing the spinal cord;
persistent weakness in both upper and lower extremities, especially
severe in the right shoulder, left grip and also some in the left lower
extremity more than the right;
impaired mobility and ambulation;
neck pain;
numbness;
loss of manual dexterity;
loss of grip strength;
decreased muscle tone in the right upper extremity;
incomplete quadriparesis;
cervical myelopathy with cord compression especially at C5-C6 from
surgical hematoma;
left vertebral artery traumatic pseudoaneurysm;
impaired mobility and ambulation secondary to the above;
acute subacute ischemia right posterior lateral frontal lobe;
acute brain hemorrhage;
clotter hematoma on the left vertebral spinal canal/some cord edema at
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the C6 level;
severe cervical cord injury from the epidural hematoma and compression
from packing placed at the September 1, 2015 Dr. Cappuccino surgery at
Eastern Niagara;
persistent effacement of the left side of the cord from residual packing
that was left in because of known vertebral artery injury;
loss of motion and strength in upper and lower limbs;
C3 ASIA D tetraplegia;
filling defects consistent with acute segmental and subsegmental
pulmonary emboli within the lower lobe pulmonary arteries bilaterally;
loss of shoulder abduction right upper extremity;
loss of horizontal shoulder abduction right upper extremity;
loss of elbow flexion right upper extremity;
loss of supination right upper extremity;
loss of pronation right upper extremity;
loss of finger flexors and intrinsic muscles right upper extremity;
headache;
neurogenic bladder;
bilateral cold feet;
cord displacement, compression and deformity;
focal cord edema;
9
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mild ventral cord impingement and displacement;
instability of cervical spine with failure of Dr. Cappuccino' s anterior
cervical discectomy and fusion and ongoing increased risk of corrective
cervical surgery;
loss ofbalance;
neurogenic bowel;
confusion;
loss of executive function;
intense headache;
areflexia with deep tendon;
weakness of right scapular retraction and elbow flexion and supination;
reduced vibration and proprioceptive sense in both feet requiring the use
of assistive devices during ambulation;
dysphagia;
neuropathic pain;
neurogenic bladder;
weakened immune system and fear of infections and complications;
depression;
loss of judgment;
changes of personality, irritability, poor tolerance and frustration;
hormonal problems, decreased testosterone level and the affects of same;
10
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loss of enjoyment of life;
central pain syndrome;
autonomic dysreflexia;
- hydrocephalus;
- posterior right frontal lobe acute ischemia;
posterior cord sensory damage; and
damage to cerebellum.
16. Yes, the aforesaid injuries are claimed to be permanent.
17. With respect to how it will be claimed each of the aforesaid injuries was
caused by the alleged negligence, this is an improper demand and beyond the scope of a
proper bill of particulars.
18. Names and addresses of physicians whom Thomas Kausner came under the
care of are as follows:
- Robert H. Ablove, M .D., UB MD Orthopedics & Sports Medicine,
4949 Harlem Road, Amherst, New York 14226;
Date seen: 10/31/ 16
- Vaijayantee Belle, M .D., Neurology Outpatient Surgery Center,
500 Main Street, Olean, New York 14760;
Dates seen: 9/23/16
- Billy Carsons, D.O., Pain Management Advanced Pain Care,
84 North Main Street, Wellsville, New York 14895 ;
Dates seen: 11/18/ 15, 12/ 10/15, 1/14/16, 2/11/16, 3/6/ 16, 4/13/ 16,
5/9/196, 6/7 / l 6, 7/8/16, 8/4/ 16, 8/29/16, 9/29/16, and 11/1/16
11
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- Donna Czarnecki, Ph.D., Dent Neurological Group, LLP,
200 Sterling Drive, Orchard Park, New York 14127;
Dates seen: 5/25/16
- James Czyrny, M.D., Rehabilitation Medicine,
UB MD Orthopedics & Sports Medicine,
4949 Harlem Road, Amherst, New York 14226;
Dates seen: 3/9/16, 6/8/ 16, and 11/ 14/ 16
- Dent Tower: CT neck 11/9/15, 5/16/ 16; brain MRI 5/16/16;
Tat Fung, M.D., Erie County Medical Center,
462 Grider Street, Buffalo, New York 14215;
Dates seen: Dr. Fung saw and treated Thomas Kausner at Erie County
Medical Center while he was there (see above for dates) and then
thereafter on the dates of 12/9/ 15, 3/17/16, 6/23/16 and 10/13/ 16
Gates Vascular Institute: 6/9/ 16 angiogram
Joseph Kowalski, M.D., UB MD Orthopedics & Sports Medicine,
4949 Harlem Road, Amherst, New York 14226;
Dates seen: Dr. Kowalski performed surgery on Thomas Kauser on
September 3, 2015 and saw him afterwards at Buffalo General Hospital
until his discharge and then again on various dates thereafter of 11/25/15,
1/20/ 16, 3/9/16, 6/8/16, 8/31 /16 and 11/30/ 16.
- Elad I. Levy, M.D., UB Neurosurgery,
3980-A Sheridan Drive, Amherst, New York 14226;
Dates seen: Dr. Levy saw and treated Thomas Kausner at Buffalo
General Hospital when he was admitted there and thereafter on dates of
11/9/ 15, 5/16/16, 6/9/16 (angio and OBI) and 6/21 /16.
- John Pollina, M .D., UB Neurosurgery,
3980-A Sheridan Drive, Amherst, New York 14226;
Dates seen: Dr. Pollina performed surgery on Thomas Kausner on
September 3, 2015 at Buffalo General Hospital and then saw and treated
him thereafter.
Olean General Hospital Physical and Occupational Therapy Outpatient
Rehab Department, 515 Main Street, Olean, New York 14760;
Dates seen: November through February, 2016, physical and
12
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occupational therapy three times per week and then continuing thereafter;
speech therapy two time per week since November, 2016;
Thomas Stevens, LCSW-R, BCO Counselor,
114 South Tenth Street, Olean, New York 14760;
Dates seen: 11/11/16 and various dates in December, 2016.
Hakeem Shakir, M.D., UB Neurosurgery,
3980-A Sheridan Drive, Amherst, New York 14226;
Dates seen: Dr. Shakir assisted and/or performed the stenting procedures
on Thomas Kausner at Buffalo General Hospital on September 4, 2015.
Elaine Wagner, CCC/SLP, Olean General Hospital,
515 Main Street, Olean, New York 14760;
Dates seen: 12/11/15 for swallow evaluation and tongue paralysis and
cognitive therapy
Zia Shiekh, M.D., Olean Family Medicine,
421North 8th Street, Olean, New York 14760.
Authorizations for the medical records of the above are being provided herewith and
defendants may obtain dates of treatment from those records as well.
19. See number 18 above.
20. See number 18 above.
21. With respect to whether it will be claimed that the aforesaid injuries
necessitated confinement to bed or home, yes, intermittently from September 1, 2015 to
present.
22. With respect to whether it is reasonably anticipated that the claimed
aforesaid injuries will necessitate future confinement to bed or home, yes, intermittently
and for the remainder of Thomas Kausner' s life expectancy.
13
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NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017
23. Yes, loss of earnings is claimed. Thomas Kausner was employed as a
fulltime pharmacist with Walgreens and last worked during the week before the surgery by
Andrew Cappuccino, M.D. on September 1, 2015. During calendar year 2014, the last
year in which Thomas Kausner worked the entire year, he earned $144,149.89. Thomas
Kausner was born on , 1954 and was age 61 on date of Dr. Cappuccino's surgery
of September 1, 2015. Mr. Kausner intended to work to age 71; therefore, lost wages are
claimed, not adjusted for inflation, from on or about November 1, 2015 to August 27, 2015
(9 years and 10 months), for a total of $1 ,417.473.92.
24. Further and future lost wages are claimed. See number 23 above.
25. Expenses for hospitals, physicians, medical supplies, medicines, nursing
expenses and so forth are claimed and will be set forth in a supplemental bill of particulars.
Lost medical insurance and other fringe benefits are claimed as well as diminished social
security benefits, pension benefits, 40 lk contributions and benefits, and the loss of the
value of household services. More specific calculations as to lost income, past and future,
and lost benefits will be provided in a supplemental bill of particulars and the report of an
expert economist to be provided.
26. Amounts listed in demands 23, 24 and 25 which were covered or reimbursed
by insurance and the amounts paid will be supplied in a supplemental bill of particulars.
Thomas Kausner had medical insurance through his employer Walgreens: Blue Cross Blue
Shield of Illinois, Policy No. WAG832002427, Group No. 887644. An authorization is
being provided herewith.
14
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27. Future expenses for physicians, hospitals, medicines, other medical care and
treatment and medical insurance are claimed and will be set forth in a supplemental bill of
particulars.
28. Blue Cross Blue Shield of Illinois and possibly Medicare.
29. Thomas Kausner was awarded social security disability benefits and is
receiving same at the rate of $2,660.00 per month.
30. A particularized statement as to each of the aforesaid amounts of money
which were covered by insurance will be supplied.
31. Amounts reimbursed to plaintiffs or paid directly by a source other than
insurance: None.
32. Cheryl Kausner was deprived of the society, services or companionship of
her husband Thomas Kausner from September 1, 2015 to present.
33. With respect to each other act or omission not included above which plaintiff
swill claim constituted negligence on the part of defendants, this is an improper demand
and beyond the scope of a proper bill of particulars.
34. Expenses for hospitals, physicians, medical supplies, medicines, nursing
expenses and so forth are claimed and will be set forth in a supplemental bill of particulars.
Lost medical insurance and other fringe benefits are claimed as well as diminished social
security benefits, pension benefits, 40 lk contributions and benefits, and the loss of the
value of household services. More specific calculations as to lost income, past and future,
and benefits will be provided in a supplemental bill of particulars and the report of an
15
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NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017
expert economist to be provided.
35. With respect to any other claim or cause of action plaintiffs intend to pursue,
this is an improper demand and beyond the scope of a proper bill of particulars.
36. As to plaintiffs making claims against other parties, none.
Dated: Buffalo, New York
February 1, 2017
Fitzgerald & Roller, P.C.
Brian P. Fitzgerald/ E
Attorneys for Plain · f:
509 Liberty Building
424 Main Street
Buffalo, New York 14202
Tel. (716) 852-2000
brian@fitzgeraldroller.com
To: Michael J. Roach, Esq.
Connors, LLP
Attorneys for Defendants
Harnath B. Clerk, M.D., P.C.
Harnath B. Clerk, M.D.
1000 Liberty Building
Buffalo, New York 14202
Tel. (716) 852-5533
mjr@connorsllp.com
16
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NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017
cc: Brian J. Weidner, Esq.
The Tarantino Law Firm, LLP
Attorneys for Defendants
Buffalo Spine Surgery, PLLC
Andrew Cappuccino, M.D.
Eric Dean, RPA-C
1500 Rand Building
14 Lafayette Square
Buffalo, New York 14203
Tel. (716) 849-6500
bweidner@tarantinolaw.com
Joseph V. McCarthy, Esq.
Roach Brown McCarthy & Gruber PC
Attorneys for Defendants
Eastern Niagara Hospital, Inc.
Robert E. Lutnick, M.D.
1920 Liberty Building
424 Main Street
Buffalo, New York 14202
Tel. (716) 852-0400
jvmccarthy@roachbrown.com
17
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" i,I ,I
VERIFICATION
STATE OF NEW YORK )
COUNTY OF ERIE ) ss.:
CITY OF BUFFALO )
The undersigned, an attorney admitted to practice in the Courts of the State of New
York, shows: that deponent is the attorney of record for plaintiffs in the within action; that
deponent has read the foregoing Plaintiffs' Verified Bill of Particulars in Response to
Harnath B. Clerk, M.D., P.C. and Harnath B. Clerk, M.D.'s Demand and knows the
contents thereof; that the same is true to deponent's own knowledge, except as to matters
therein stated to be alleged on information and belief, and as to those matters deponent
believes it to be true. Deponent further says that the reason this verification is made by
deponent and not by plaintiffs is that plaintiffs are not residents of the County of Erie and
State of New York where deponent has his office.
, Esq.
Sworn to before me this
1st day of February, 2017.
~ ~ ~ G_
Notary Public
ELLEN K. COYLE
NOTARY PUBLIC - STATE OF NEW YORK
NO. 01CO6107591
QUALIFIED IN ERIE COUNTY '),._
COMMISSION EXPIRES APRIL 5, 20~
18
Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 STATE OF NEW YORK SUPREME COURT : NIAGARA COUNTY THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife Plaintiffs' Verified Plaintiffs Bill of Particulars in Response to Hamath B. V. Clerk, M .D ., P.C. and Harnath B. Clerk, M.D.'s BUFFALO SPINE SURGERY, PLLC, Demand ANDREW CAPPUCCINO, M.D., ERIC DEAN, RP A-C, HARNATH B. CLERK, M.D., P.C., HARNATH B. CLERK, M.D., Index No. E159518/2016 EASTERN NIAGARA HO SPITAL, INC., and ROBERT E. LUTNICK, M.D. Defendants The Plaintiffs, Thomas and Cheryl Kausner, Individually and as Husband and Wife, by their attorneys, Fitzgerald & Roller, P.C., in response to Defendants Hamath B . Clerk, M.D., P.C. and Harnath B. Clerk, M.D.'s Demand for Verified Bill of Particulars, responds as follows: 1. Plaintiffs' residence at the time this action was commenced was 9811 Deer Creek Road, Portville, New York 14770. 2. Thomas Kausner, date of birth , 1954. Cheryl Kausner, date of birth 1959. 3. Thomas Kausner, -2755. Cheryl Kausner, -9356. FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 4. Dates of treatment rendered are from September 1 through September 3, 2015. 5. September 1, 2015 through September 3, 2015. 6. The place of treatment was Eastern Niagara Hospital. 7. Each and every particular injury or condition from which plaintiff claims he was suffering each time he sought treatment from defendants is an improper demand and beyond the scope of a proper bill of particulars. 8. Each and every act of negligence, commission or omission which plaintiffs will claim as the basis of the alleged malpractice of the defendants, their agents, servants and employees, including but not limited to consultants, radiologists and other personnel, is as follows: a. Failure to order prompt, immediate, and emergent transfer of Thomas Kausner when he was in need of a transfer to Gates Vascular Institute or Buffalo General Hospitals; b. Failure to order an angiogram STAT and develop a plan to repair an injury to the left vertebral artery immediately or in a timely fashion; c. Failed to recognize left vertebral artery injury; d. Failed to assess the significance of packing with respect to left vertebral artery injury; e. Failure to order STAT MRI's and MRA's; f. Failing to timely and properly assess neurological signs and symptoms 2 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 and the need for emergent care relative to same; g. Failed to properly assess the patient on the dates of September 1, 2 and 3, 2015; h. Failed to properly assess and treat and determine the cause for neurological signs and symptoms including difficulty breathing, high blood pressure, inability to urinate, weakness, and numbness and/or communicate significant findings to Andrew Cappuccino, M.D. and Eric Dean, RP A-C; 1. Failing to timely and properly assess and correct left vertebral artery mJury; J. Failing to diagnose swelling in or near the spinal cord, including but not limited to a large hematoma and collection of fluid compromising the spinal cord; k. Failure to take into account the expansion of hemostatic agents; l. Failing to assess the spinal cord and the left vertebral artery injury post-op; m. Failing to discontinue Toradol; n. Failing to appreciate the significance of urinary retention and high blood pressure and prescribing medications for same without determining the cause; o. Failing to do timely neuro checks, document same, or order same; 3 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 p. Failing to determine why the Jackson Pratt drain was not draining; q. Failure to transfer Thomas Kausner to Gates Vascular Institute/Buffalo General Hospital on an emergent basis; r. Negligently allowing a predetermined "set" of post-op orders to be acted upon and administered; s. Failing to monitor Thomas Kausner's symptoms and administer appropriate patient care continuously in the intensive care unit; t. Failed to correctly interpret and act upon the results of the MRI and MRA examinations; u. Failure to correctly assess blood loss; v. Failed to discuss case with Andrew Cappuccino, M.D. and Eric Dean, RPA-C; w. Failed to review the operative record; x. Assessing Thomas Kausner without requiring to seeing him; y. Failure to timely monitor and assess and then communicate Thomas Kausner's critical signs and symptoms on the dates of September 1, 2 and 3, 2015; z. Failing to report weakness to Mr. Kausner ' s doctors, including Andrew Cappuccino, M.D. and Eric Dean, RPA-C; aa. Failure to communicate patient information in a timely and correct fashion with Dr. Cappuccino relative to Thomas Kausner's condition on 4 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 the various dates of September 1, 2 and 3, 2015; bb.Allowing the administration of doses ofToradol when same was contraindicated; cc. Failure to obtain immediate post-op vascular consult and vascular surgical treatment and initiate steps to repair the vertebral artery and failure to diagnose, avoid and stop compression of the spinal cord and interruption and/or decrease of vertebral artery blood flow; dd. Failing to promptly and emergently implement a plan of action to prevent and control bleeding post-operatively and prevent acute central nervous systems ischemia; ee. Failed to appreciate significance of dropping and fluctuating 0 2 SATS; ff. Failed to appreciate significance of numbness in fingers and hands; gg. Failed to appreciate significance of inability to urinate; hh. Failed to appreciate significance of patient lethargy; 11. Failed to appreciate significance of incontinence; JJ. Failure to keep mean arterial pressure below 80; kk. Failure to recognize arterial injury; 11. Failed to order or see that CMS checks were done and/or done every hour and failed to do these himself; mm. Failed to correctly initiate a plan of treatment to control Thomas Kausner's dangerously high blood pressure. 5 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 9. The dates of negligence occurred on September 1, 2015 through September 3, 2015. 10. Whether the malpractice of defendants occurred in the course of any emergency treatment, procedure or surgery is an improper demand and beyond the scope of a proper bill of particulars. 11. With respect to the acts or omissions performed by another of whose acts omissions defendants had legal responsibility, this is an improper demand and beyond the scope of a proper bill of particulars. 12. With respect to accepted medical practices, customs and medical standards claimed were violated and departed from by defendants or any person for whom defendants are legally responsible, this is an improper demand and beyond the scope of a proper bill of particulars. 13. With respect to whether it is claimed that defendants and/or persons for whom defendants are legally responsible failed to perform their professional duties in accordance with any manual, rule, regulation, statute, law or ordinance, this is an improper demand and beyond the scope of a proper bill of particulars. 14. With respect to equipment or other medical instrument being defective or otherwise improper, this is an improper demand and beyond the scope of a proper bill of particulars. 15. Every injury sustained by Thomas Kausner consists of the following: catastrophic cervical cord impairment; 6 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 Central cord syndrome; ischemia lateral frontal lobe; loss of C-6 cervical vertebrae; left vertebral artery injury, extensive bleeding and post-operative bleeding; compression of the spinal cord and pseudoaneurysm of the left vertebral artery; pain and suffering from the effects of the left vertebral artery injury and compression of the spinal cord and pseudoaneurysm of the left vertebral artery; inability to pass urine; difficulty breathing; weakness; paralysis; inability to walk; brain injury; surgery at Buffalo General Hospital on September 3, 2015 to remove all hardware from his neck; stenting procedures on the left vertebral artery on September 4, 2015; acute weakness in bilateral upper extremities; severe anterior cord compression; 7 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 left side vertebral artery pseudoaneurysm at C5-6; weakness of all extremities and impaired mobility and ambulation; traumatic left vertebral pseudoaneurysm; large hematoma compressing the spinal cord; persistent weakness in both upper and lower extremities, especially severe in the right shoulder, left grip and also some in the left lower extremity more than the right; impaired mobility and ambulation; neck pain; numbness; loss of manual dexterity; loss of grip strength; decreased muscle tone in the right upper extremity; incomplete quadriparesis; cervical myelopathy with cord compression especially at C5-C6 from surgical hematoma; left vertebral artery traumatic pseudoaneurysm; impaired mobility and ambulation secondary to the above; acute subacute ischemia right posterior lateral frontal lobe; acute brain hemorrhage; clotter hematoma on the left vertebral spinal canal/some cord edema at 8 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 the C6 level; severe cervical cord injury from the epidural hematoma and compression from packing placed at the September 1, 2015 Dr. Cappuccino surgery at Eastern Niagara; persistent effacement of the left side of the cord from residual packing that was left in because of known vertebral artery injury; loss of motion and strength in upper and lower limbs; C3 ASIA D tetraplegia; filling defects consistent with acute segmental and subsegmental pulmonary emboli within the lower lobe pulmonary arteries bilaterally; loss of shoulder abduction right upper extremity; loss of horizontal shoulder abduction right upper extremity; loss of elbow flexion right upper extremity; loss of supination right upper extremity; loss of pronation right upper extremity; loss of finger flexors and intrinsic muscles right upper extremity; headache; neurogenic bladder; bilateral cold feet; cord displacement, compression and deformity; focal cord edema; 9 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 mild ventral cord impingement and displacement; instability of cervical spine with failure of Dr. Cappuccino' s anterior cervical discectomy and fusion and ongoing increased risk of corrective cervical surgery; loss ofbalance; neurogenic bowel; confusion; loss of executive function; intense headache; areflexia with deep tendon; weakness of right scapular retraction and elbow flexion and supination; reduced vibration and proprioceptive sense in both feet requiring the use of assistive devices during ambulation; dysphagia; neuropathic pain; neurogenic bladder; weakened immune system and fear of infections and complications; depression; loss of judgment; changes of personality, irritability, poor tolerance and frustration; hormonal problems, decreased testosterone level and the affects of same; 10 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 loss of enjoyment of life; central pain syndrome; autonomic dysreflexia; - hydrocephalus; - posterior right frontal lobe acute ischemia; posterior cord sensory damage; and damage to cerebellum. 16. Yes, the aforesaid injuries are claimed to be permanent. 17. With respect to how it will be claimed each of the aforesaid injuries was caused by the alleged negligence, this is an improper demand and beyond the scope of a proper bill of particulars. 18. Names and addresses of physicians whom Thomas Kausner came under the care of are as follows: - Robert H. Ablove, M .D., UB MD Orthopedics & Sports Medicine, 4949 Harlem Road, Amherst, New York 14226; Date seen: 10/31/ 16 - Vaijayantee Belle, M .D., Neurology Outpatient Surgery Center, 500 Main Street, Olean, New York 14760; Dates seen: 9/23/16 - Billy Carsons, D.O., Pain Management Advanced Pain Care, 84 North Main Street, Wellsville, New York 14895 ; Dates seen: 11/18/ 15, 12/ 10/15, 1/14/16, 2/11/16, 3/6/ 16, 4/13/ 16, 5/9/196, 6/7 / l 6, 7/8/16, 8/4/ 16, 8/29/16, 9/29/16, and 11/1/16 11 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 - Donna Czarnecki, Ph.D., Dent Neurological Group, LLP, 200 Sterling Drive, Orchard Park, New York 14127; Dates seen: 5/25/16 - James Czyrny, M.D., Rehabilitation Medicine, UB MD Orthopedics & Sports Medicine, 4949 Harlem Road, Amherst, New York 14226; Dates seen: 3/9/16, 6/8/ 16, and 11/ 14/ 16 - Dent Tower: CT neck 11/9/15, 5/16/ 16; brain MRI 5/16/16; Tat Fung, M.D., Erie County Medical Center, 462 Grider Street, Buffalo, New York 14215; Dates seen: Dr. Fung saw and treated Thomas Kausner at Erie County Medical Center while he was there (see above for dates) and then thereafter on the dates of 12/9/ 15, 3/17/16, 6/23/16 and 10/13/ 16 Gates Vascular Institute: 6/9/ 16 angiogram Joseph Kowalski, M.D., UB MD Orthopedics & Sports Medicine, 4949 Harlem Road, Amherst, New York 14226; Dates seen: Dr. Kowalski performed surgery on Thomas Kauser on September 3, 2015 and saw him afterwards at Buffalo General Hospital until his discharge and then again on various dates thereafter of 11/25/15, 1/20/ 16, 3/9/16, 6/8/16, 8/31 /16 and 11/30/ 16. - Elad I. Levy, M.D., UB Neurosurgery, 3980-A Sheridan Drive, Amherst, New York 14226; Dates seen: Dr. Levy saw and treated Thomas Kausner at Buffalo General Hospital when he was admitted there and thereafter on dates of 11/9/ 15, 5/16/16, 6/9/16 (angio and OBI) and 6/21 /16. - John Pollina, M .D., UB Neurosurgery, 3980-A Sheridan Drive, Amherst, New York 14226; Dates seen: Dr. Pollina performed surgery on Thomas Kausner on September 3, 2015 at Buffalo General Hospital and then saw and treated him thereafter. Olean General Hospital Physical and Occupational Therapy Outpatient Rehab Department, 515 Main Street, Olean, New York 14760; Dates seen: November through February, 2016, physical and 12 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 occupational therapy three times per week and then continuing thereafter; speech therapy two time per week since November, 2016; Thomas Stevens, LCSW-R, BCO Counselor, 114 South Tenth Street, Olean, New York 14760; Dates seen: 11/11/16 and various dates in December, 2016. Hakeem Shakir, M.D., UB Neurosurgery, 3980-A Sheridan Drive, Amherst, New York 14226; Dates seen: Dr. Shakir assisted and/or performed the stenting procedures on Thomas Kausner at Buffalo General Hospital on September 4, 2015. Elaine Wagner, CCC/SLP, Olean General Hospital, 515 Main Street, Olean, New York 14760; Dates seen: 12/11/15 for swallow evaluation and tongue paralysis and cognitive therapy Zia Shiekh, M.D., Olean Family Medicine, 421North 8th Street, Olean, New York 14760. Authorizations for the medical records of the above are being provided herewith and defendants may obtain dates of treatment from those records as well. 19. See number 18 above. 20. See number 18 above. 21. With respect to whether it will be claimed that the aforesaid injuries necessitated confinement to bed or home, yes, intermittently from September 1, 2015 to present. 22. With respect to whether it is reasonably anticipated that the claimed aforesaid injuries will necessitate future confinement to bed or home, yes, intermittently and for the remainder of Thomas Kausner' s life expectancy. 13 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 23. Yes, loss of earnings is claimed. Thomas Kausner was employed as a fulltime pharmacist with Walgreens and last worked during the week before the surgery by Andrew Cappuccino, M.D. on September 1, 2015. During calendar year 2014, the last year in which Thomas Kausner worked the entire year, he earned $144,149.89. Thomas Kausner was born on , 1954 and was age 61 on date of Dr. Cappuccino's surgery of September 1, 2015. Mr. Kausner intended to work to age 71; therefore, lost wages are claimed, not adjusted for inflation, from on or about November 1, 2015 to August 27, 2015 (9 years and 10 months), for a total of $1 ,417.473.92. 24. Further and future lost wages are claimed. See number 23 above. 25. Expenses for hospitals, physicians, medical supplies, medicines, nursing expenses and so forth are claimed and will be set forth in a supplemental bill of particulars. Lost medical insurance and other fringe benefits are claimed as well as diminished social security benefits, pension benefits, 40 lk contributions and benefits, and the loss of the value of household services. More specific calculations as to lost income, past and future, and lost benefits will be provided in a supplemental bill of particulars and the report of an expert economist to be provided. 26. Amounts listed in demands 23, 24 and 25 which were covered or reimbursed by insurance and the amounts paid will be supplied in a supplemental bill of particulars. Thomas Kausner had medical insurance through his employer Walgreens: Blue Cross Blue Shield of Illinois, Policy No. WAG832002427, Group No. 887644. An authorization is being provided herewith. 14 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 27. Future expenses for physicians, hospitals, medicines, other medical care and treatment and medical insurance are claimed and will be set forth in a supplemental bill of particulars. 28. Blue Cross Blue Shield of Illinois and possibly Medicare. 29. Thomas Kausner was awarded social security disability benefits and is receiving same at the rate of $2,660.00 per month. 30. A particularized statement as to each of the aforesaid amounts of money which were covered by insurance will be supplied. 31. Amounts reimbursed to plaintiffs or paid directly by a source other than insurance: None. 32. Cheryl Kausner was deprived of the society, services or companionship of her husband Thomas Kausner from September 1, 2015 to present. 33. With respect to each other act or omission not included above which plaintiff swill claim constituted negligence on the part of defendants, this is an improper demand and beyond the scope of a proper bill of particulars. 34. Expenses for hospitals, physicians, medical supplies, medicines, nursing expenses and so forth are claimed and will be set forth in a supplemental bill of particulars. Lost medical insurance and other fringe benefits are claimed as well as diminished social security benefits, pension benefits, 40 lk contributions and benefits, and the loss of the value of household services. More specific calculations as to lost income, past and future, and benefits will be provided in a supplemental bill of particulars and the report of an 15 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 expert economist to be provided. 35. With respect to any other claim or cause of action plaintiffs intend to pursue, this is an improper demand and beyond the scope of a proper bill of particulars. 36. As to plaintiffs making claims against other parties, none. Dated: Buffalo, New York February 1, 2017 Fitzgerald & Roller, P.C. Brian P. Fitzgerald/ E Attorneys for Plain · f: 509 Liberty Building 424 Main Street Buffalo, New York 14202 Tel. (716) 852-2000 brian@fitzgeraldroller.com To: Michael J. Roach, Esq. Connors, LLP Attorneys for Defendants Harnath B. Clerk, M.D., P.C. Harnath B. Clerk, M.D. 1000 Liberty Building Buffalo, New York 14202 Tel. (716) 852-5533 mjr@connorsllp.com 16 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 cc: Brian J. Weidner, Esq. The Tarantino Law Firm, LLP Attorneys for Defendants Buffalo Spine Surgery, PLLC Andrew Cappuccino, M.D. Eric Dean, RPA-C 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 Tel. (716) 849-6500 bweidner@tarantinolaw.com Joseph V. McCarthy, Esq. Roach Brown McCarthy & Gruber PC Attorneys for Defendants Eastern Niagara Hospital, Inc. Robert E. Lutnick, M.D. 1920 Liberty Building 424 Main Street Buffalo, New York 14202 Tel. (716) 852-0400 jvmccarthy@roachbrown.com 17 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 11/15/2017 " i,I ,I VERIFICATION STATE OF NEW YORK ) COUNTY OF ERIE ) ss.: CITY OF BUFFALO ) The undersigned, an attorney admitted to practice in the Courts of the State of New York, shows: that deponent is the attorney of record for plaintiffs in the within action; that deponent has read the foregoing Plaintiffs' Verified Bill of Particulars in Response to Harnath B. Clerk, M.D., P.C. and Harnath B. Clerk, M.D.'s Demand and knows the contents thereof; that the same is true to deponent's own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters deponent believes it to be true. Deponent further says that the reason this verification is made by deponent and not by plaintiffs is that plaintiffs are not residents of the County of Erie and State of New York where deponent has his office. , Esq. Sworn to before me this 1st day of February, 2017. ~ ~ ~ G_ Notary Public ELLEN K. COYLE NOTARY PUBLIC - STATE OF NEW YORK NO. 01CO6107591 QUALIFIED IN ERIE COUNTY '),._ COMMISSION EXPIRES APRIL 5, 20~ 18