Preview
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
Exhibit C
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
HANY FATTOUCH, M.D.
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
________________________________________
THOMAS and CHERYL KAUSNER,
Plaintiffs,
- vs - Index No.
E159518/2016
BUFFALO SPINE SURGERY, PLLC,
ANDREW CAPPUCCINO, M.D.,
ERIC DEAN, RPA-C,
HARNATH B. CLERK, M.D., P.C.,
HARNATH B. CLERK, M.D.,
EASTERN NIAGARA HOSPITAL, INC.,
ROBERT E. LUTNICK, M.D., and
EASTERN NIAGARA RADIOLOGY AND
NUCLEAR MEDICINE ASSOCIATES, P.C.,
Defendants.
________________________________________
Examination before trial of HANY
FATTOUCH, M.D., taken pursuant to Notice under
Article 31 of the Civil Practice Law and Rules, at
Eastern Niagara Hospital, 521 East Avenue,
Lockport, New York, on September 24, 2019,
commencing at 11:47 a.m., before LYNN MYERS, Notary
Public.
JACK N. HUNT & ASSOCIATES, INC.
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
2
1 APPEARANCES: FITZGERALD & ROLLER, P.C.,
By BRIAN P. FITZGERALD, ESQ.,
2 509 Liberty Building,
Buffalo, New York 14202,
3 (716) 852-2000,
Appearing for the Plaintiffs.
4
THE TARANTINO LAW FIRM, LLP,
5 By ERICA R. GASIEWICZ, ESQ.,
1500 Rand Building,
6 14 Lafayette Square,
Buffalo, New York 14203,
7 (716) 849-6500,
egasiewicz@tarantinolaw.com,
8 Appearing for the Defendants,
Buffalo Spine Surgery, PLLC;
9 Andrew Cappuccino, M.D., and
Eric Dean, RPA-C.
10
CONNORS LLP,
11 By BRYAN P. KROETSCH, ESQ.,
1000 Liberty Building,
12 Buffalo, New York 14202-1687,
(716) 852-5533,
13 bpk@connorsllp.com,
Appearing for the Defendants,
14 Harnath B. Clerk, M.D., P.C., and
Harnath B. Clerk, M.D.
15
ROACH, BROWN,
16 McCARTHY & GRUBER, P.C.,
By JOSEPH V. McCARTHY, ESQ.,
17 1920 Liberty Building,
Buffalo, New York 14202,
18 (716) 852-0400,
jvmccarthy@roachbrown.com,
19 Appearing for the Defendants,
Eastern Niagara Hospital, Inc., and
20 Robert E. Lutnick, M.D.
21 PRESENT: THOMAS KAUSNER
CHERYL KAUSNER
22
23
JACK W. HUNT & ASSOCIATES , INC .
1120 Liberty Building
Buffalo Rew York 14202 - (716) 853-5600
,
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
3
1 (STIPULATIONS: Waive filing of the
2 transcript, waive Oath of the Referee,
3 reserve all objections until trial, with
4 exception of objections as to form.)
11:47:55 5
11: 47:55 6 MR. McCARTHY: Read and sign.
11: 47:55 7
11:48:15 8 H A N Y F A T T O U C H, M.D., 5468 Pinecrest
11:48:16 9 Drive, Lockport, New York 14094, after being duly
11:48:48 10 called and sworn, testified as follows:
11:48:48 11
11: 48: 48 12 EXAMINATION BY MR. FITZGERALD:
11:48:48 13
11: 48: 48 14 Q. Dr. Fattouch, my name is Brian
11:48:50 15 Fitzgerald, and I represent the Kausners, and I'm
11:48:53 16 going to ask you some questions today about your
11:48:55 17 involvement, if any, in Mr. Kausner's case.
11:48:58 18 A. Sure.
11:48:58 19 Q. And if at any time today I ask you a
11:49:01 20 question and you don't understand it, please let me
11: 49:04 21 know and I'll rephrase it for you.
11: 49:05 22 A. Sure.
11:49:05 23 Q. Is that okay?
JACK W. HUNT & n¤¤™IATES, INC.
1120 Liberty Building
Buffalo, New York 14202 - (716) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
Fat touch id.D . - Fitzgerald - 9/24/19
,
4
11:49:06 1 A. No problem.
11:49:07 2 Q. If you'd like a question repeated, I'll
11:49:09 3 do that sure.
11:49:10 4 A. Sure .
11:49:10 5 Q. Is that okay?
11:49:12 6 A. Sure .
11:49:12 7 Q. A lot of times I might ask a question
11:49:16 8 where you kind of can anticipate the answer or
11:49:19 9 anticipate what I'm asking, but please do a favor
11:49:23 10 and let me finish question before you answer --
my
11:49:25 11 A. Sure .
11:49:26 12 Q. -- is that okay?
11:49:27 13 And, also, if you can give us verbal answers
11:49:30 14 rather than a nod of the head or something like
11:49:31 15 that, we need verbal answers so that we have a
11:49:34 16 record; is that okay?
11:49:35 17 A. Sure.
11:49:36 18 Q. Okay. What's your date of birth?
11:49:37 19 A. 54.
11:49:40 20 Q. How old are you now?
11:49:41 21 A. 65.
11:49:42 22 Q. Where were you born?
11:49:45 23 A. Cairo, Egypt.
JACR W. HUNT & ASSOCZATES , INC .
1120 Liberty Building
Buffalo, Hew York 14202 - (716 ) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
N . D. - Fitzgerald - 9/24/19
Fattouch,
5
11:49:49 1 Q. Where did you grow up?
11: 49:50 2 A. Cairo, Egypt.
11: 49:53 3 Q. When did you come to the United States?
11:49:57 4 A. 1980 -- '81.
11:50:00 5 Q. 1981?
11:50:01 6 A. Uh-huh -- yes.
11:50:04 7 Q. So how old were you when you came to
11:50:07 8 the U.S.?
11:50:o9 9 A. 27.
11:50:12 10 Q. How old?
11:50:13 11 A. 27. '81.
11:50:35 12 Q. So before you came to the U.S., where
11:50:39 13 did you attend university?
11:50:41 14 A. Med school in Cairo, Egypt.
11: 50: 41 15 Q. What school?
11:50: 47 16 A. Ain Shams, E-I-N (sic), S-H-A-M-S,
11:50:52 17 Medical School Cairo.
11:50:55 18 Q. How many years was that program?
11:50:56 19 A. Seven years program.
11:50:57 20 Q. Did that program include any
11:51:09 21 internship?
11:51:10 22 A. Yes.
11:51:10 23 Q. What hospital?
JACK N . HUNT & ASSOCIATES , INC .
1120 Liberty Building
Buffalo, New York 14202 - (716 ) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
DQ. D. - Fitzgerald - 9/24/19
Fattouch,
6
11:51:12 1 A. Ain Shams med school hospital.
11:51:20 2 Q. Did it also include a residency?
11:51:22 3 A. No.
11:51:23 4 Q. Was that seven-year program both
11:51:30 5 medical school and the internship and also
11:51:34 6 undergraduate college?
11:51:36 7 A. Yes.
11:51:37 8 Q. Did you go to any college before Ain
11:51:43 9 Shams Medical?
11:51:43 10 A. The system in Egypt is you go to med
11:51:46 11 S Chool after high school straight.
11:51:47 12 Q. Okay.
11:51:48 13 A. And it's a seven program -- seven-year
11:51:51 14 program.
11:51:51 15 Q. All right. Did you -- when you
11:51:53 16 finished your schooling in Egypt, did you know what
11:51:58 17 specialty you were going to practice?
11:51:59 18 A. No.
11:51:59 19 Q. And when you first came to the United
11:52:03 20 States, where did you come to?
11:52:04 21 A. When or where?
11:52:o5 22 Q. Where?
11:52:06 23 A. To Buffalo, New York.
JACK N . HUNT & ASSOCIATES , ZNC .
1120 Liberty Building
Buffalo, New York 14202 - (716) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
Fa ttouch 16 . D. - Fitzgerald - 9/24/19
,
7
11:52:07 1 Q. Did you get into a residency program
11:52:10 2 here before you came?
11:52:12 3 A. Yes.
11:52:12 4 Q. What program?
11:52:13 5 A. New York State SUNY Buffalo.
11:52:19 6 Q. Did you go to school there or did you
11:52:26 7 go into a residency program associated with the
11:52:28 8 medical school?
11:52:29 9 A. I went to a residency in the SUNY
11:52:32 10 program in Buffalo, New York.
11:52:34 11 Q. And what type of residency?
11:52:35 12 A. Anesthesiology.
11:52:38 13 Q. When did you begin it?
11:52:40 14 A. July 1981.
11:52:45 15 Q. Now, did you have to take any exam in
11:52:50 16 order to be able to start that program in the
11:52:52 17 United States?
11:52:52 18 A. Yes.
11:52:53 19 Q. Is it some kind of a foreign medical
11:52:56 20 student exam?
11:52:57 21 A. Yes.
11:52:57 22 Q. What's that called?
11:52:58 23 A. ECFMG.
JACK N . HUNT & ASSOCIATES , INC .
1120 Liberty Building
Buffalo, New York 14202 - (716) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
M.D. - Fitzgerald - 9/24/19
Fattouch,
8
11:52:59 1 Q. E-C?
11:53:00 2 A. F-M-G.
11:53:05 3 Q. What's that stand for?
11:53:05 4 A. Educational Commission of Foreign
11:53:07 5 Medical Grads.
11:53:08 6 Q. Okay. What year did you take that?
11:53:14 7 A. I don't recall.
11:53:15 8 Q. Pardon?
11:53:16 9 A. I don't recall. Early before that
11:53:19 10 time, early.
11:53:19 11 Q. Did you pass it on your first try?
11:53:22 12 A. Yes, sir.
11:53:23 13 Q. And how many years was the residency in
11:53:31 14 anesthesia?
11:53:31 15 A. Three years.
11:53:34 16 Q. What year did you complete it?
11:53:36 17 A. 1984.
11:53:39 18 Q. And in doing that, what hospitals were
11:53:43 19 you at?
11:53:44 20 A. Buffalo SUNY program, Buffalo
11:53: 48 21 hospitals: Buffalo General, Erie County Medical
11:53:52 22 Center, Children's Hospital, Deaconess Hospital.
11:53:57 23 Q. Once you completed your residency, did
JACE H. HUNT & ASSOCIATES, INC.
1120 Liberty Building
New York 14202 - (716) 853-5600
Buffalo,
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
M.D. - Fitzgerald - 9/24/19
Fattouch,
9
11:54:01 1 you then start to practice anesthesiology?
11:54:05 2 A. Yes, sir.
11:54:05 3 Q. Where was that?
11:54:05 4 A. I started in California.
11:54:11 5 Q. What hospital?
11:54:12 6 A. Mercy General Hospital.
11:54:18 7 Q. Where?
11:54:19 8 A. In Santa Ana .
11:54:21 9 Q. How long were you there?
11:54:22 10 A. '84 to '97.
11:54:28 11 Q. '97?
11:54:29 12 A. Uh-huh -- yes.
11:54:32 13 Q. Why did you leave there?
11:54:35 14 A. To come back to Buffalo.
11:54:36 15 Q. Why?
11:54:37 16 A. Because education for the kids is
11:54:39 17 better here than the East Coast -- than the West
11:54:42 18 COa s t .
11:54:50 19 Q. When you came back to New York State,
11:54:53 20 where did you come to? Buffalo, New York?
11:54:57 21 A. Yes.
11:54:57 22 Q. Where did you live?
11:54:59 23 A. Lockport.
JACE H. HUNT & ASSCCIATES, ZNC.
1120 Liberty Building
New York 14202 - (716) 853-5600
Buffalo,
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
M.D. - Fitzgerald - 9/24/19
Fattouch,
10
11:55:00 1 Q. Okay. And where did you practice
11:55:03 2 anesthesiology at that point?
11:55:04 3 A. Lockport, New York.
11:55:06 4 Q. Okay. At what hospital?
11:55:09 5 A. Eastern Niagara Medical. Used to be
11:55:13 6 Lockport Memorial.
11:55:13 7 Q. When you came back in '94 it was
11:55:18 8 Lockport Memorial and now it's --
11:55:18 9 A. '97.
11:55:19 10 Q. '97. That's right.
11:55:20 11 And now -- that was Lockport Memorial then,
11:55:23 12 and now it's Eastern Niagara; correct?
11:55:25 13 A. Yes, sir.
11:55:26 14 Q. Did you practice anesthesiology
11:55:30 15 anywhere else from 1997 to present?
11:55:34 16 A. Medina Memorial Hospital, Newfane
11:55: 41 17 Medical Center.
11:55:42 18 Q. Where?
11:55: 42 19 A. Newfane, Inter-Community Hospital. I
11:55:53 20 practice sometimes in St. Mary's Hospital.
11:55:59 21 Q. Now, were you associated with any
11:56:02 22 anesthesiology group?
11:56:03 23 A. No.
JACK W. HUNT & ASSOCIATES, INC.
1120 Liberty Building
Buffalo, Hew York 14202 - (716) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
N.D. - Fitzgerald - 9/24/19
Fattouch,
11
11:56:03 1 Q. So you were always a solo practitioner?
11:56:08 2 A. No. Only here at the hospital here we
11:56:10 3 were medical group here at this hospital.
11:56:11 4 Q. This hospital being Eastern Niagara
11:56:13 5 Lockport Memorial?
11:56:14 6 A. Yeah.
11:56:15 7 Q. You were part of a medical group?
11:56:16 8 A. Yes, sir.
11:56:17 9 Q. What was the name of that group?
11:56:18 10 A. Right now it's Eastern Niagara Medical
11:56:21 11 Group, P.C.
11:56:23 12 Q. When did you start with them?
11:56:27 13 A. 1997.
11:56:28 14 Q. And how many anesthesiologists did they
11:56:35 15 have?
11:56:35 16 A. Two.
11:56:36 17 Q. Were you one of them?
11:56:37 18 A. Yes, sir.
11:56:38 19 Q. And then they had other doctors in
11:56:40 20 other specialties?
11:56:42 21 A. No, only anesthesiology.
11:56:44 22 Q. Just two anesthesiologists.
11:56:47 23 A. Yes, sir.
JACK 19. HUNT & ASSOCIATES, INC.
1120 Liberty Building
Hew York 14202 - (716) 853-5600
Buffalo,
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
M.D. - Fitzgerald - 9/24/19
Fattouch,
12
11:56:47 1 Q. Okay. Who was the other one?
11:56:49 2 A. Dr. Wagdy Ghaly. W-A-G-D-Y, Ghaly,
11:56:58 3 G-H-A-L-Y.
11:57:01 4 Q. Okay. So back in September of 2015
11:57:07 5 when Mr. Kausner was here at Eastern Niagara, were
11:57:10 6 you practicing here as an anesthesiologist with
11:57:14 7 that medical group Eastern Niagara Medical Group,
11:57:17 8 P.C.?
11:57:18 9 A. Yes, sir.
11:57:18 10 Q. Did they have a contract with the
11:57:20 11 hospital to provide anesthesiology services?
11:57:24 12 A. Yes, sir.
11:57:25 13 Q. Did that Eastern Niagara Medical Group,
11:57:42 14 P.C., also provide anesthesiology services at the
11:57:46 15 other hospitals you mentioned?
11:57:47 16 A. Yes, sir.
11:57:47 17 Q. Okay. And that would be you and
11:57:50 18 Dr. Ghaly, correct?
11:57:51 19 A. That's correct.
11:57:52 20 Q. Okay. Okay. Were you a practicing
11:57:58 21 anesthesiologist at those other hospitals you
11:58:03 22 mentioned in September 2015?
11:58:04 23 A. I don't think Medina Hospital because
JACK H. HUNT & ASSOCIATES, INC.
2120 Liberty Building
Buffalo, New York 24202 - (716) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
Fa t touch hQ . D. - Fitzgerald - 9/24/19
,
13
11:58:07 1 we left Medina Hospital maybe like eight, nine
11:58:11 2 years ago, so.
11:58:13 3 Q. Now --
11:58:14 4 A. And I don't know if Newfane Hospital
11:58:17 5 had the OR opened. I'm not sure.
11:58:19 6 Q. aS Of -- as Of AuguSt/September
So,
11:58:22 7 2015, did you have any sort of regular days here at
11:58:27 8 Eastern Niagara where you were working as an
11:58:31 9 anesthesiologist?
11:58:32 10 A. Every day we work as anesthesiologist.
11:58:34 11 Q. Okay. So you were a Monday through
11:58:36 12 Friday anesthesiologist?
11:58:37 13 A. It depends on -- sometimes I was off
11:58:41 14 for vacation so I was not here.
11:58:43 15 Q. Okay.
11:58:43 16 A. Sometimes I used to work all nights so
11:58:45 17 I WaS not here the next day. So I don't know what.
11:58:47 18 Q. All right. You have a varied schedule?
11:58:50 19 A. I can not a hundred percent say I was
11:58:51 20 here all the time.
11:58:52 21 Q. Okay. All right. Okay. And before
11:58:57 22 September 1, 2015, had you ever been the
11:59:01 23 anesthesiologist on any of Dr. Cappuccino's
JACK H . HUNT & ASSOCIATES , INC .
1120 Liberty Building
Buffalo, New York 14202 - (716) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
N.D. - Fitzgerald - 9/24/19
Fattouch,
14
11:59:04 1 SurgerieS?
11:59:04 2 A. Yes, sir.
11:59:05 3 Q. Can you estimate how many?
11:59:15 4 A. No.
11:59:17 5 Q. He had a surgery scheduled usually
11:59:20 6 Tuesdays and then also Wednesdays, do you remember
11:59:26 7 that?
11:59:26 8 A. Sure.
11:59:27 9 Q. Okay. How many years do you think you
11:59:32 10 were anesthesiologist on his surgeries before
11:59:34 11 September 2015?
11:59:36 12 A. Since 1997, when I came here he was
11:59:42 13 here.
11:59:43 14 Q. And you can't remember how many
11:59:48 15 surgeries you were the anesthesiologist for
11:59:53 16 Dr. Cappuccino, but would it be fair to say
11:59:56 17 hundreds?
11:59:56 18 A. I cannot say yes or no. Maybe. I have
11:59:59 19 no idea.
12:00:00 20 Q. Well, 1997 to 2015, that's 18 years.
12:00:06 21 A. Uh-huh.
12:00:06 22 Q. And he did surgery here on a regular
12:00:11 23 basis during those years, correct?
JACK H. HUNT & ASSOCIATES, INC.
1120 Liberty BusTrung
New York 14202 - (716) 853-5600
Buffalo,
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
M.D. - Fitzgerald - 9/24/19
Fattouch,
15
12:00:13 1 A. Yes, sir.
12:00:13 2 Q. And you were an anesthesiologist here,
12:00:21 3 Dr. Ghaly was an anesthesiologist here, were there
12:00:23 4 other people who did anesthesiology?
12:00:26 5 A. CRNAs.
12:00:31 6 Q. Okay. How many CRNAs did you have in
12:00:35 7 2015?
12:00:37 8 A. Three or four. I don't recall --
12:00:41 9 Q. All right.
12:00:43 10 A. -- exact number.
12:00:44 11 Q. How many surgeries a week were they
12:00:46 12 doing at Eastern Niagara back in September 2015?
12:00:48 13 MR. McCARTHY: Form.
12:00:52 14 BY MR. FITZGERALD:
12:00:52 15 Q. You can answer.
12:00:55 16 A. 20.
12:00:56 17 Q. 20 a week?
12:00:57 18 A. To 40, 50. Depends on the days what.
12:01:02 19 It depends also on the week. Depends, so.
12:01:03 20 Q. Okay. I didn't really hear your
12:01:07 21 answer.
12:01:07 22 A. Between 20 and 40, I have no idea
12:01:10 23 exactly. Some weeks were busy, some weeks were not
JACK H. HUNT & ASSOCIATES , INC.
1120 Liberty Building
Buffalo, Hew York 14202 - (716) 853-5600
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020
M.D. - Fitzgera.1d - 9/24/19
Fattouch,
16
12:01:13 1 busy, so.
12:01:15 2 Q. All right. Do you remember Mr. --
12:01:19 3 well, strike that.
12:01:19 4 Do you remember if you were the
12:01:32 5 anesthesiologist during any of Dr. Cappuccino's
12:01:37 6 surgeries where he was doing an ante
Preview
FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 Exhibit C FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 HANY FATTOUCH, M.D. STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA ________________________________________ THOMAS and CHERYL KAUSNER, Plaintiffs, - vs - Index No. E159518/2016 BUFFALO SPINE SURGERY, PLLC, ANDREW CAPPUCCINO, M.D., ERIC DEAN, RPA-C, HARNATH B. CLERK, M.D., P.C., HARNATH B. CLERK, M.D., EASTERN NIAGARA HOSPITAL, INC., ROBERT E. LUTNICK, M.D., and EASTERN NIAGARA RADIOLOGY AND NUCLEAR MEDICINE ASSOCIATES, P.C., Defendants. ________________________________________ Examination before trial of HANY FATTOUCH, M.D., taken pursuant to Notice under Article 31 of the Civil Practice Law and Rules, at Eastern Niagara Hospital, 521 East Avenue, Lockport, New York, on September 24, 2019, commencing at 11:47 a.m., before LYNN MYERS, Notary Public. JACK N. HUNT & ASSOCIATES, INC. FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 2 1 APPEARANCES: FITZGERALD & ROLLER, P.C., By BRIAN P. FITZGERALD, ESQ., 2 509 Liberty Building, Buffalo, New York 14202, 3 (716) 852-2000, Appearing for the Plaintiffs. 4 THE TARANTINO LAW FIRM, LLP, 5 By ERICA R. GASIEWICZ, ESQ., 1500 Rand Building, 6 14 Lafayette Square, Buffalo, New York 14203, 7 (716) 849-6500, egasiewicz@tarantinolaw.com, 8 Appearing for the Defendants, Buffalo Spine Surgery, PLLC; 9 Andrew Cappuccino, M.D., and Eric Dean, RPA-C. 10 CONNORS LLP, 11 By BRYAN P. KROETSCH, ESQ., 1000 Liberty Building, 12 Buffalo, New York 14202-1687, (716) 852-5533, 13 bpk@connorsllp.com, Appearing for the Defendants, 14 Harnath B. Clerk, M.D., P.C., and Harnath B. Clerk, M.D. 15 ROACH, BROWN, 16 McCARTHY & GRUBER, P.C., By JOSEPH V. McCARTHY, ESQ., 17 1920 Liberty Building, Buffalo, New York 14202, 18 (716) 852-0400, jvmccarthy@roachbrown.com, 19 Appearing for the Defendants, Eastern Niagara Hospital, Inc., and 20 Robert E. Lutnick, M.D. 21 PRESENT: THOMAS KAUSNER CHERYL KAUSNER 22 23 JACK W. HUNT & ASSOCIATES , INC . 1120 Liberty Building Buffalo Rew York 14202 - (716) 853-5600 , FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 3 1 (STIPULATIONS: Waive filing of the 2 transcript, waive Oath of the Referee, 3 reserve all objections until trial, with 4 exception of objections as to form.) 11:47:55 5 11: 47:55 6 MR. McCARTHY: Read and sign. 11: 47:55 7 11:48:15 8 H A N Y F A T T O U C H, M.D., 5468 Pinecrest 11:48:16 9 Drive, Lockport, New York 14094, after being duly 11:48:48 10 called and sworn, testified as follows: 11:48:48 11 11: 48: 48 12 EXAMINATION BY MR. FITZGERALD: 11:48:48 13 11: 48: 48 14 Q. Dr. Fattouch, my name is Brian 11:48:50 15 Fitzgerald, and I represent the Kausners, and I'm 11:48:53 16 going to ask you some questions today about your 11:48:55 17 involvement, if any, in Mr. Kausner's case. 11:48:58 18 A. Sure. 11:48:58 19 Q. And if at any time today I ask you a 11:49:01 20 question and you don't understand it, please let me 11: 49:04 21 know and I'll rephrase it for you. 11: 49:05 22 A. Sure. 11:49:05 23 Q. Is that okay? JACK W. HUNT & n¤¤™IATES, INC. 1120 Liberty Building Buffalo, New York 14202 - (716) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 Fat touch id.D . - Fitzgerald - 9/24/19 , 4 11:49:06 1 A. No problem. 11:49:07 2 Q. If you'd like a question repeated, I'll 11:49:09 3 do that sure. 11:49:10 4 A. Sure . 11:49:10 5 Q. Is that okay? 11:49:12 6 A. Sure . 11:49:12 7 Q. A lot of times I might ask a question 11:49:16 8 where you kind of can anticipate the answer or 11:49:19 9 anticipate what I'm asking, but please do a favor 11:49:23 10 and let me finish question before you answer -- my 11:49:25 11 A. Sure . 11:49:26 12 Q. -- is that okay? 11:49:27 13 And, also, if you can give us verbal answers 11:49:30 14 rather than a nod of the head or something like 11:49:31 15 that, we need verbal answers so that we have a 11:49:34 16 record; is that okay? 11:49:35 17 A. Sure. 11:49:36 18 Q. Okay. What's your date of birth? 11:49:37 19 A. 54. 11:49:40 20 Q. How old are you now? 11:49:41 21 A. 65. 11:49:42 22 Q. Where were you born? 11:49:45 23 A. Cairo, Egypt. JACR W. HUNT & ASSOCZATES , INC . 1120 Liberty Building Buffalo, Hew York 14202 - (716 ) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 N . D. - Fitzgerald - 9/24/19 Fattouch, 5 11:49:49 1 Q. Where did you grow up? 11: 49:50 2 A. Cairo, Egypt. 11: 49:53 3 Q. When did you come to the United States? 11:49:57 4 A. 1980 -- '81. 11:50:00 5 Q. 1981? 11:50:01 6 A. Uh-huh -- yes. 11:50:04 7 Q. So how old were you when you came to 11:50:07 8 the U.S.? 11:50:o9 9 A. 27. 11:50:12 10 Q. How old? 11:50:13 11 A. 27. '81. 11:50:35 12 Q. So before you came to the U.S., where 11:50:39 13 did you attend university? 11:50:41 14 A. Med school in Cairo, Egypt. 11: 50: 41 15 Q. What school? 11:50: 47 16 A. Ain Shams, E-I-N (sic), S-H-A-M-S, 11:50:52 17 Medical School Cairo. 11:50:55 18 Q. How many years was that program? 11:50:56 19 A. Seven years program. 11:50:57 20 Q. Did that program include any 11:51:09 21 internship? 11:51:10 22 A. Yes. 11:51:10 23 Q. What hospital? JACK N . HUNT & ASSOCIATES , INC . 1120 Liberty Building Buffalo, New York 14202 - (716 ) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 DQ. D. - Fitzgerald - 9/24/19 Fattouch, 6 11:51:12 1 A. Ain Shams med school hospital. 11:51:20 2 Q. Did it also include a residency? 11:51:22 3 A. No. 11:51:23 4 Q. Was that seven-year program both 11:51:30 5 medical school and the internship and also 11:51:34 6 undergraduate college? 11:51:36 7 A. Yes. 11:51:37 8 Q. Did you go to any college before Ain 11:51:43 9 Shams Medical? 11:51:43 10 A. The system in Egypt is you go to med 11:51:46 11 S Chool after high school straight. 11:51:47 12 Q. Okay. 11:51:48 13 A. And it's a seven program -- seven-year 11:51:51 14 program. 11:51:51 15 Q. All right. Did you -- when you 11:51:53 16 finished your schooling in Egypt, did you know what 11:51:58 17 specialty you were going to practice? 11:51:59 18 A. No. 11:51:59 19 Q. And when you first came to the United 11:52:03 20 States, where did you come to? 11:52:04 21 A. When or where? 11:52:o5 22 Q. Where? 11:52:06 23 A. To Buffalo, New York. JACK N . HUNT & ASSOCIATES , ZNC . 1120 Liberty Building Buffalo, New York 14202 - (716) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 Fa ttouch 16 . D. - Fitzgerald - 9/24/19 , 7 11:52:07 1 Q. Did you get into a residency program 11:52:10 2 here before you came? 11:52:12 3 A. Yes. 11:52:12 4 Q. What program? 11:52:13 5 A. New York State SUNY Buffalo. 11:52:19 6 Q. Did you go to school there or did you 11:52:26 7 go into a residency program associated with the 11:52:28 8 medical school? 11:52:29 9 A. I went to a residency in the SUNY 11:52:32 10 program in Buffalo, New York. 11:52:34 11 Q. And what type of residency? 11:52:35 12 A. Anesthesiology. 11:52:38 13 Q. When did you begin it? 11:52:40 14 A. July 1981. 11:52:45 15 Q. Now, did you have to take any exam in 11:52:50 16 order to be able to start that program in the 11:52:52 17 United States? 11:52:52 18 A. Yes. 11:52:53 19 Q. Is it some kind of a foreign medical 11:52:56 20 student exam? 11:52:57 21 A. Yes. 11:52:57 22 Q. What's that called? 11:52:58 23 A. ECFMG. JACK N . HUNT & ASSOCIATES , INC . 1120 Liberty Building Buffalo, New York 14202 - (716) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 M.D. - Fitzgerald - 9/24/19 Fattouch, 8 11:52:59 1 Q. E-C? 11:53:00 2 A. F-M-G. 11:53:05 3 Q. What's that stand for? 11:53:05 4 A. Educational Commission of Foreign 11:53:07 5 Medical Grads. 11:53:08 6 Q. Okay. What year did you take that? 11:53:14 7 A. I don't recall. 11:53:15 8 Q. Pardon? 11:53:16 9 A. I don't recall. Early before that 11:53:19 10 time, early. 11:53:19 11 Q. Did you pass it on your first try? 11:53:22 12 A. Yes, sir. 11:53:23 13 Q. And how many years was the residency in 11:53:31 14 anesthesia? 11:53:31 15 A. Three years. 11:53:34 16 Q. What year did you complete it? 11:53:36 17 A. 1984. 11:53:39 18 Q. And in doing that, what hospitals were 11:53:43 19 you at? 11:53:44 20 A. Buffalo SUNY program, Buffalo 11:53: 48 21 hospitals: Buffalo General, Erie County Medical 11:53:52 22 Center, Children's Hospital, Deaconess Hospital. 11:53:57 23 Q. Once you completed your residency, did JACE H. HUNT & ASSOCIATES, INC. 1120 Liberty Building New York 14202 - (716) 853-5600 Buffalo, FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 M.D. - Fitzgerald - 9/24/19 Fattouch, 9 11:54:01 1 you then start to practice anesthesiology? 11:54:05 2 A. Yes, sir. 11:54:05 3 Q. Where was that? 11:54:05 4 A. I started in California. 11:54:11 5 Q. What hospital? 11:54:12 6 A. Mercy General Hospital. 11:54:18 7 Q. Where? 11:54:19 8 A. In Santa Ana . 11:54:21 9 Q. How long were you there? 11:54:22 10 A. '84 to '97. 11:54:28 11 Q. '97? 11:54:29 12 A. Uh-huh -- yes. 11:54:32 13 Q. Why did you leave there? 11:54:35 14 A. To come back to Buffalo. 11:54:36 15 Q. Why? 11:54:37 16 A. Because education for the kids is 11:54:39 17 better here than the East Coast -- than the West 11:54:42 18 COa s t . 11:54:50 19 Q. When you came back to New York State, 11:54:53 20 where did you come to? Buffalo, New York? 11:54:57 21 A. Yes. 11:54:57 22 Q. Where did you live? 11:54:59 23 A. Lockport. JACE H. HUNT & ASSCCIATES, ZNC. 1120 Liberty Building New York 14202 - (716) 853-5600 Buffalo, FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 M.D. - Fitzgerald - 9/24/19 Fattouch, 10 11:55:00 1 Q. Okay. And where did you practice 11:55:03 2 anesthesiology at that point? 11:55:04 3 A. Lockport, New York. 11:55:06 4 Q. Okay. At what hospital? 11:55:09 5 A. Eastern Niagara Medical. Used to be 11:55:13 6 Lockport Memorial. 11:55:13 7 Q. When you came back in '94 it was 11:55:18 8 Lockport Memorial and now it's -- 11:55:18 9 A. '97. 11:55:19 10 Q. '97. That's right. 11:55:20 11 And now -- that was Lockport Memorial then, 11:55:23 12 and now it's Eastern Niagara; correct? 11:55:25 13 A. Yes, sir. 11:55:26 14 Q. Did you practice anesthesiology 11:55:30 15 anywhere else from 1997 to present? 11:55:34 16 A. Medina Memorial Hospital, Newfane 11:55: 41 17 Medical Center. 11:55:42 18 Q. Where? 11:55: 42 19 A. Newfane, Inter-Community Hospital. I 11:55:53 20 practice sometimes in St. Mary's Hospital. 11:55:59 21 Q. Now, were you associated with any 11:56:02 22 anesthesiology group? 11:56:03 23 A. No. JACK W. HUNT & ASSOCIATES, INC. 1120 Liberty Building Buffalo, Hew York 14202 - (716) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 N.D. - Fitzgerald - 9/24/19 Fattouch, 11 11:56:03 1 Q. So you were always a solo practitioner? 11:56:08 2 A. No. Only here at the hospital here we 11:56:10 3 were medical group here at this hospital. 11:56:11 4 Q. This hospital being Eastern Niagara 11:56:13 5 Lockport Memorial? 11:56:14 6 A. Yeah. 11:56:15 7 Q. You were part of a medical group? 11:56:16 8 A. Yes, sir. 11:56:17 9 Q. What was the name of that group? 11:56:18 10 A. Right now it's Eastern Niagara Medical 11:56:21 11 Group, P.C. 11:56:23 12 Q. When did you start with them? 11:56:27 13 A. 1997. 11:56:28 14 Q. And how many anesthesiologists did they 11:56:35 15 have? 11:56:35 16 A. Two. 11:56:36 17 Q. Were you one of them? 11:56:37 18 A. Yes, sir. 11:56:38 19 Q. And then they had other doctors in 11:56:40 20 other specialties? 11:56:42 21 A. No, only anesthesiology. 11:56:44 22 Q. Just two anesthesiologists. 11:56:47 23 A. Yes, sir. JACK 19. HUNT & ASSOCIATES, INC. 1120 Liberty Building Hew York 14202 - (716) 853-5600 Buffalo, FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 M.D. - Fitzgerald - 9/24/19 Fattouch, 12 11:56:47 1 Q. Okay. Who was the other one? 11:56:49 2 A. Dr. Wagdy Ghaly. W-A-G-D-Y, Ghaly, 11:56:58 3 G-H-A-L-Y. 11:57:01 4 Q. Okay. So back in September of 2015 11:57:07 5 when Mr. Kausner was here at Eastern Niagara, were 11:57:10 6 you practicing here as an anesthesiologist with 11:57:14 7 that medical group Eastern Niagara Medical Group, 11:57:17 8 P.C.? 11:57:18 9 A. Yes, sir. 11:57:18 10 Q. Did they have a contract with the 11:57:20 11 hospital to provide anesthesiology services? 11:57:24 12 A. Yes, sir. 11:57:25 13 Q. Did that Eastern Niagara Medical Group, 11:57:42 14 P.C., also provide anesthesiology services at the 11:57:46 15 other hospitals you mentioned? 11:57:47 16 A. Yes, sir. 11:57:47 17 Q. Okay. And that would be you and 11:57:50 18 Dr. Ghaly, correct? 11:57:51 19 A. That's correct. 11:57:52 20 Q. Okay. Okay. Were you a practicing 11:57:58 21 anesthesiologist at those other hospitals you 11:58:03 22 mentioned in September 2015? 11:58:04 23 A. I don't think Medina Hospital because JACK H. HUNT & ASSOCIATES, INC. 2120 Liberty Building Buffalo, New York 24202 - (716) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 Fa t touch hQ . D. - Fitzgerald - 9/24/19 , 13 11:58:07 1 we left Medina Hospital maybe like eight, nine 11:58:11 2 years ago, so. 11:58:13 3 Q. Now -- 11:58:14 4 A. And I don't know if Newfane Hospital 11:58:17 5 had the OR opened. I'm not sure. 11:58:19 6 Q. aS Of -- as Of AuguSt/September So, 11:58:22 7 2015, did you have any sort of regular days here at 11:58:27 8 Eastern Niagara where you were working as an 11:58:31 9 anesthesiologist? 11:58:32 10 A. Every day we work as anesthesiologist. 11:58:34 11 Q. Okay. So you were a Monday through 11:58:36 12 Friday anesthesiologist? 11:58:37 13 A. It depends on -- sometimes I was off 11:58:41 14 for vacation so I was not here. 11:58:43 15 Q. Okay. 11:58:43 16 A. Sometimes I used to work all nights so 11:58:45 17 I WaS not here the next day. So I don't know what. 11:58:47 18 Q. All right. You have a varied schedule? 11:58:50 19 A. I can not a hundred percent say I was 11:58:51 20 here all the time. 11:58:52 21 Q. Okay. All right. Okay. And before 11:58:57 22 September 1, 2015, had you ever been the 11:59:01 23 anesthesiologist on any of Dr. Cappuccino's JACK H . HUNT & ASSOCIATES , INC . 1120 Liberty Building Buffalo, New York 14202 - (716) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 N.D. - Fitzgerald - 9/24/19 Fattouch, 14 11:59:04 1 SurgerieS? 11:59:04 2 A. Yes, sir. 11:59:05 3 Q. Can you estimate how many? 11:59:15 4 A. No. 11:59:17 5 Q. He had a surgery scheduled usually 11:59:20 6 Tuesdays and then also Wednesdays, do you remember 11:59:26 7 that? 11:59:26 8 A. Sure. 11:59:27 9 Q. Okay. How many years do you think you 11:59:32 10 were anesthesiologist on his surgeries before 11:59:34 11 September 2015? 11:59:36 12 A. Since 1997, when I came here he was 11:59:42 13 here. 11:59:43 14 Q. And you can't remember how many 11:59:48 15 surgeries you were the anesthesiologist for 11:59:53 16 Dr. Cappuccino, but would it be fair to say 11:59:56 17 hundreds? 11:59:56 18 A. I cannot say yes or no. Maybe. I have 11:59:59 19 no idea. 12:00:00 20 Q. Well, 1997 to 2015, that's 18 years. 12:00:06 21 A. Uh-huh. 12:00:06 22 Q. And he did surgery here on a regular 12:00:11 23 basis during those years, correct? JACK H. HUNT & ASSOCIATES, INC. 1120 Liberty BusTrung New York 14202 - (716) 853-5600 Buffalo, FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 M.D. - Fitzgerald - 9/24/19 Fattouch, 15 12:00:13 1 A. Yes, sir. 12:00:13 2 Q. And you were an anesthesiologist here, 12:00:21 3 Dr. Ghaly was an anesthesiologist here, were there 12:00:23 4 other people who did anesthesiology? 12:00:26 5 A. CRNAs. 12:00:31 6 Q. Okay. How many CRNAs did you have in 12:00:35 7 2015? 12:00:37 8 A. Three or four. I don't recall -- 12:00:41 9 Q. All right. 12:00:43 10 A. -- exact number. 12:00:44 11 Q. How many surgeries a week were they 12:00:46 12 doing at Eastern Niagara back in September 2015? 12:00:48 13 MR. McCARTHY: Form. 12:00:52 14 BY MR. FITZGERALD: 12:00:52 15 Q. You can answer. 12:00:55 16 A. 20. 12:00:56 17 Q. 20 a week? 12:00:57 18 A. To 40, 50. Depends on the days what. 12:01:02 19 It depends also on the week. Depends, so. 12:01:03 20 Q. Okay. I didn't really hear your 12:01:07 21 answer. 12:01:07 22 A. Between 20 and 40, I have no idea 12:01:10 23 exactly. Some weeks were busy, some weeks were not JACK H. HUNT & ASSOCIATES , INC. 1120 Liberty Building Buffalo, Hew York 14202 - (716) 853-5600 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 08/27/2020 M.D. - Fitzgera.1d - 9/24/19 Fattouch, 16 12:01:13 1 busy, so. 12:01:15 2 Q. All right. Do you remember Mr. -- 12:01:19 3 well, strike that. 12:01:19 4 Do you remember if you were the 12:01:32 5 anesthesiologist during any of Dr. Cappuccino's 12:01:37 6 surgeries where he was doing an ante