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FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
THOMAS and CHERYL KAUSNER,
Individually & As Husband and Wife,
Plaintiffs,
' Vs" AFFIDAVIT
Index # E159518/2010
BUFFALO SPINE SURGERY,PLLC,
ANDREW CAPPUCCINO, M.D.,
ERIC DEAN, RPA-C,
HARNATH CLERK, M.D., P.C.,
HARNATH B. CLERK, M.D.,
EASTERN NIAGARA HOSPITAL,INC.,
ROBERT E. LUTNICK, M.D.,
EASTERN NIAGARA RADIOLOGY &
NUCLEAR MEDICINE ASSOCIATES, P.C.,
Defendants.
STATE OF NEW YORK
COUNTY OF TOMPKINS ) ss.:
CITY OF ITHACA
MARTIN STALLONE., M.D., being duly sworn, deposes and says:
1. I am a physician duly licensed to practice medicine in the State of New
York. I offer this affidavit in support .of the motion by Harnath Clerk, M.D.,and
Harnath Clerk, M.D., P.C., seeking summary judgment.
2. I.earned my medical degree from the University ofPennsylvania
School of Medicine in Philadelphia, Pennsylvania in 2004. Thereafter, I completed
an internship and residency in Internal Medicine from the Hospital of the
University of Pennsylvania. I am board-certified by the American Board of
Internal Medicine., a certification that I have held continuously since 2007.
3. I am currently an attending physician actively practicing Internal
Medicine at Cayuga Medical. Center in.Ithaca, New York.
4. Based upon my education, knowledge,. training, and experience, I am
well-versed in the standard of care applicable to Internal Medicine, and more
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specifically with evaluating and treating patients who present with high blood
pressure in the post-operative hospital setting such as Thomas Kausner.
5. In preparation for making this affidavit, I reviewed the following:
• Plaintiffs Summons & Complaint;
• Dr.. Clerk's Answer;
• Plaintiffs Verified Bill of Particulars directed to Dr.
Clerk;
• Plaintiffs Supplemental Bill of Particulars directed to Dr.
Clerk;
• Plaintiffs Amended Complaint;
• Dr. Clerk's Answer to the Amended Complaint;
The records of-
• Eastern Niagara Hospital;
• Buffalo General Medical. Center;
• Erie County Medical Center;
• Buffalo Spine Surgery;
• Billy Carstens,. D.O.;
• Robert Ablove, M.D.;
• Vaijayantee Belle, M.D.;
• Donna Czarnecki, Ph.D.;
• James Czyrny, M.D.;
• Dent Neurologic Institute;
• Tat Fung, M.D.;
• Thomas Holmlund, M.D.;
• Olean General Rehab;
• James Vandewall, M.D.;
The deposition testimony of-
• Thomas Kausner;
• Cheryl Kausner;
• Andrew Cappuccino, M.D.;
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• Eric Dean, R.P.A.-C;
• Donna Heiman, R.N.;
• Harnath. Clerk, M.D.;
• Erika Eberlin;
• Kim Careri, R.N..;
.
• Margaret BOlt, R.N.;
• Robert Moreno, R.N.;
• Barbara Cronshaw, R.N.;
• Joseph Koss;
• Joseph Yanulevich,
• Hany Fattouch, M.D.;
• Melissa Lasly;
• Alyssa Wendt;
• John Dyster, M.D.;
• Shelley Jakubec., R.N.;
• Joan Parks, R.N.;
• Ken Crane;
• Robert Lutnick, M.D.;.
• Rachel Napoleon;
• Dawn Knott;
• Shannon Johnson;
• Christine Delgado, R.N.;
• Alexander Rovner, M.D.;
• Elad.Levy, M.D.,
• John Pollina, Jr:, M.D., and
• Linda Kozlowksi, R.N.
6. It is my opinion, with a reasonable degree of medical certainty,that
Dr. Clerk was not negligent and did not: commit medical malpractice:in his
treatment of Thomas Kausner from September 1, 2015. through September 3, 2015.
Dr. Clerk was not Mr. Kausner's attending physician, and he played a limited role
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in Mr. Kausner's care and treatment. It is my opinion, with a reasonable degree of
medical certainty, that Dr. Clerk's care: was at all times in keeping with the
standard ofcare.
7. Moreover, it is my opinion, with a reasonable degree of medical
certainty, that any claimed negligence. or malpractice on Dr. Clerk's part did not
cause Mr. Kausner's allege.d injuries or damages.
8, I respectfully request that the Court dismiss this lawsuit against Dr.
Clerk and his professional corporation.
THOMAS KAUSNER
9.. On September..1, 2015, Thomas Kausner presented to Eastern Niagara
Hospital for an anterior cervical discectomy and interbody fusion from 03-7 to be
performed by Andrew Cappuccino,M.D..
10. In the history and physical dated August 25., 2015, Mr, Kausner's chief
complaint was neck pain which radiated to his hands. It was sharp, constant, and
rated 9110. He also,complained of numbness.
11. On the date ofsurgery, Dr. Cappuccino was assisted by his physician
assistant, Eric Dean.
12. During the surgery, Dr. Cappuccino encountered a "trickling of blood".
which he described as venous in nature and non-pulsatile.
13. Dr. Cappuccino documented that the area began to'hemorrhage
significantly, so he paCked it with Fibrillar (a hemostatic agent).
14.. Dr. Cappuccino closed the wound, found Mr. Kausner to be
neurologically and vascularly intact, and transported him to the recovery room,
where he remained stable.
15. Dr. Clerk first became involved during the post-operative period. .At
14:16, Mr. Dean, placed an order for a "medical management." consultation with
Dr. Clerk.
16.: As Dr.. Clerk explained at his deposition, his role in methcal
management was primarily to manage Mr. Kausner's blood pressure: If Mr.
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Kausner developed some other issue, like shortness of breath, Dr. Clerk would then
assist.
17. Ultimately, and consistent with a post-operative orthopedic patient
like Mr. Kausner, all consequential decision-making was left to the attending
physician (Dr. Cappuccino) and physician assistant(Mr. Dean). Dr. Clerk was
simply a consultant.
18. Dr. Clerk was never informed of Mr. Kausner's intra-operative blood.
loss. In fact, Dr. Cappuccino's operative report was not dictated until September
17, 2015. Thus, Dr. Clerk did not have an opportunity to review it during
involvement in Mr. Kausner's care.
19. In the post-anesthesia care unit, Mr. Kausner was on four liters of
oxygen via nasal cannula until 14:45, and then room air. He developed
hypertension (elevated blood pressure) and was in severe pain. Dr. Clerk was not
involved in his PACU care.
20. Upon discharge from the PACU, Mr. Kausner's blood pressure was
148/88. In an untimed order attributed to anesthesiologist Hany Fattouch, M.D.,
Mr. Kausner was to receive. Labetalol 5 mg.(a blood pressure medication) via IV.
21. Around 16:15, Mr. Kausner arrived in the ICU. His blood pressure
was 167/93.
22. Linda Kozlowski, R.N., cared for Mr. Kausner when he first arrived in
the ICU. He complained of 9/10 pain, was agitated, and was unable to grip the
PCA button, He was given 2 mg. of Dilaudid intramuscularly, and 5 mg. of Valium
orally.
23. Mr. Kausner also received Toradol post-operatively. As one would
expect, the medication was ordered by Dr. Cappuccino's team, and Dr. Clerk was
not managing Mr. Kausner's post-operative pain.
24. He settled down temporarily, but remained agitated. Dr. Cappuccino
was aware. Dr. Cappuccino advised that providers could get Mr. Kausner up out of
bed and into 'a chair to see if it would make him more comfortable.
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25. Dr. Clerk was not called until the evening of September 1. His first
involvement came at 19:35. Joan Parks, R.N., called Dr. Clerk.
26. Ms. Parks informed Dr. Clerk that Mr. Kausner had elevated blood
pressure (with readings of 192/98, 177/98, and 171/100) and that Mr. Kausner
reported intake of drinks five beers per day.
27. Dr. Clerk returned Ms. Parks' call at 19:45. Dr. Clerk advised that Dr.
Cappuccino should be made aware of.Mr. Kausner's alcohol use. Notably, alcohol
withdrawal may increase a patient's blood pressure.
28. During the call, Dr. Clerk ordered one inch of Nitropaste every six
hours, and Clonidine ..1 mg for control of the blood pressure if it reached 160/90
(which Ms. Parks erroneously documented as 190/90).
29. Ms. Parks also informed.Dr. Clerk that Mr. Kausner had been placed
on Librium (a medication to treat alcohol withdrawal).
30. The Clonidine was not administered that evening, and Dr. Clerk
placed a new order for it the following morning.
31. At 20:00, Mr. Dean called to check on Mr. Kausner. Ms. Parks advised
P.A. Dean that Mr. Kausner's blood pressure was elevated, and that Mr. Kausner
had a difficult time using the PCA button (pain medication pump). Mr. Dean was
aware that Mr. Kausner drank five beers per day. He ordered Librium and
Valium.
32. Dr. Clerk first saw the patient some time in the evening of September
1, 2015, after he spoke with Ms. Parks. He dictated his medical consultation the
following day.
33. At the time of the consultation, Mr. Kausner's blood pressure was
elevated at 200/120.
34. Dr. Clerk obtained a detailed history and review of systems. Dr. Clerk
was unaware of any intra-operative bleed. The operative note was not yet dictated.
35. Dr. Clerk recommended ICU care, the aforementioned Nitropaste and
Clonidine, that Mr. Kausner's CBC and BMP be monitored, and continuation of
pain medication. Dr. Clerk documented that if Mr. Kausner does well, then.he.
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could be discharged to the floor the following day. This encapsulates Dr. Clerk's
first of three consultations.
36. At 22:30, Mr. Dean was notified that Mr.. Kausner's Jackson-Pratt
drain was not maintaining suction. Per Mr. Dean's instructions, the nurse
manipulated the drain, and suction was re-established.
37. At 23:30, Mr. Dean was notified that Mr. Kausner's oxygen saturations
dropped.. Mr. Dean ordered oxygen to keep Mr. Kausner's saturation above 92%. A
venti mask was applied, and the oxygen saturations were maintained at 92%.
38. Throughout the early morning hours on September 2, Mr. Kausner's
blood pressure remained slightly elevated, but had improved from the previous
evening. Ms. Parks documented readings of 171/95, 169/86, and 176/92.
39. Dr. Clerk was not contacted about the blood pressure readings or for
any other reason at all between the late evening of September 1 and the morning of
September 2. Rather, Mr. Dean was contacted because he was part of the
attending's team.
40. At 5:35 a.m., Ms. Parks again contacted Mr. Dean to inform him that
Mr. Kausner's Jackson-Pratt drain was still not maintaining suction. He had only
had only 20 cc's of output during Ms... Parks' shift.
41. .At 5:40 a.m., Mr. Kausner pulled off his venti mask because his nose
was dried out. Mr. Kausner mentioned that he had numbness in his fingers and
hands and he was able to push the button with moderate difficulty. Thereafter, he
rested comfortably.
42. That morning,. Mr. Kausner had normal lab values. As the attending
physician, Dr. Cappuccino followed Mr. Kausner's lab values.
43. Dr. Clerk saw Mr. Kausner on the morning of September 2, 2015. His
blood pressure was trending in the right direction, albeit still elevated, with
readings of 159/83 at 6 a.m. and 167/89 at 7 a.m.
44. Notably, at 8 a.m.., Mr. Kausner's blood pressure was in an acceptable
range at 144/82. From Dr. Clerk's perspective, the regimen of medications
appeared to be working.
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45. Dr. Clerk documented that Mr. Kausner had less neck pain, less
shortness of breath, less cough and better blood pressure.
46. The recent painful surgical intervention was an obvious explanation
for Mr. Kausner's post-operative high blood pressure. Mr. Kausner was in pain
and anxious.. The stress of surgery can be difficult for a patient and can raise the
patient's blood pressure.
47. Mr. Kausner complained of headaches and shortness of breath. He
was in no acute respiratory distress, and Dr. Clerk testified that Mr. Kausner was
comfortable and not in acute respiratory distress at the time of the consultation.
48. Dr. Clerk did not see Mr. Kausner again on September 2, and did not
receive any updates on him. At the risk of stating the obvious, this was reasonable
given Dr. Clerk's limited role, especially in comparison to that of the surgeon and
his team, who were actively involved in Mr. Kausner's care and treatment.
49. Mr. Kausner was then seen by Mr. Dean. Mr. Dean documented that
Mr. Kausner had 4/5 bilateral grips, 4/5 right deltoid and biceps decreased
subjective sensation in both hands. As part of the attending surgeon's team, Mr.
Dean was responsible for assessing strength and managing the numbness in Mr.
Kausner's hands (as well as all other post-operative neurologic issues).
50. Mr. Dean and. Dr. Cappuccino added Solu-Medrol
(methylprednisolone), a steroid, in an effort to treat Mr. Kausner's condition. The
order was placed at 11:11.
51. An MRI and MRA were ordered by Dr. Cappuccino and Mr. Dean. Mr.
Dean and Dr. Cappuccino reviewed Mr. Kausner's status and planned a transfer to
another floor. Dr. Clerk was not informed of any of the events of that afternoon —
presumably because they all fell under the auspices of the attending.
52. Mr. Kausner's blood pressure was elevated in the afternoon, but again,
Dr. Clerk was not notified.
53. At 17:00, Mr. Kausner returned from imaging. He reported increased
cervical pain and bilateral upper extremity weakness, more pronounced on the
right upper extremity, and generalized muscle weakness.
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54. In the afternoon of September 2, radiologist Robert Lutnick, M.D.,
reviewed the MRI and MRA and discussed his findings with Dr. Cappuccino and
Mr. Dean.
55. At 19:42, Robert Moreno, R.N., documented no neuro deficits, facial
symmetry, tongue protrusion normal, smile equal, pupils equal and reactive, grips
equal, and some gross motor weakness with lifting Mr. Kausner's right arm.
56. At 19:57, Mr. Moreno documented that Mr. Kausner's blood pressure
was 165/102. Mr. Kausner was given Clonidine .1 mg.
57. In the evening of September 2, the patient and family offered concerns
about the MRI and MRA results and right arm weakness.
58. At 20:48, based on his responsibility as part of the attending team, Mr.
Dean called and spoke with Mrs. Kausner. They discussed the imaging, and Mr.
Dean provided reassurances.
59. At 22:56, Mr. Kausner complained of pain of 7/10 and had not voided.
Dr. Cappuccino was notified and it was recommended that Mr. Kausner use a
commode, but that did not help. Mr. Kausner was assisted back to his bed,
unsteady on his feet.
60. As of 00:26 on September 3, 2015, Mr. Kausner was still unable to void
and.Mr. Dean ordered a straight catheter. As of 2 a.m., Mr. Kausner's oxygen
saturation fluctuated between 87-91% on nasal cannula. He was given a venti
mask, and his oxygen saturation fluctuated between 88% and 96%.
61. Notably, Dr. Clerk was not contacted at all again in the evening of
September 2 and early morning hours of September 3..
62. At 7 a.m., Shelley Jakubec, R.N., documented that the PCA pump
Dilaudid was discontinued. On behalf of the attending team, Mr. Dean evaluated.
Mr. Kausner in the morning and requested all narcotics held until Mr. Kausner's
mental status improved, a urology consult, and that he would review with "AC"
(Andrew Cappuccino).
63. At 7;30 a.m., Mr. Dean examined Mr. Kausner and was aware of the
extreme weakness..
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64. Mr. Kausner was assisted out of bed to the chair, but did poorly and
was unable to move his left foot.
65. Ms. Jakubec described him as very weak on the left side. At 8 a.m.,
Mr. Dean held Librium and Neurontin.
66. Consistent with his responsibility as part of Dr. Cappuccino's surgical
team, Mr. Dean documented that Mr. Kausner was lethargic but moved all four
extremities and followed commands. His right deltoid and bicep were weakened.
He did not have any long tract signs. His sensation was diminished but still
present in both hands, and it was intact elsewhere.
67. Dr. Clerk saw Mr.. Kausner again on the morning of September 3. This
was the first time he saw Mr. Kausner in about 24 hours. The hypertension had
persisted, and Dr. Clerk documented "hypoxia worse today." Mr. Kausner also had
new onset orthopnea and lethargy (as described above).
68. Dr. Clerk did not evaluate Mr. Kausner's extremities that day, which
was reasonable because P.A. Dean saw him shortly before.
69. Dr. Clerk ordered an arterial blood gas and chest x-ray because of Mr.
Kausner's difficulty breathing. Mr. Kausner had a low level of oxygen in the blood.
70. The portable chest x-ray demonstrated questionable atelectasis versus
a right lower lobe infiltrate. Dr. Clerk also added Duoneb (breathing treatment).
71. Because Mr. Kausner was clearly declining, preparations were made to
transfer Mr. Kausner to Gates Vascular Institute in Buffalo, New York, for a
higher level of care.
72. Around 10:30, Dr. Cappuccino spoke to Mrs. Kausner and made her
aware of a planned transfer for an angiogram of the vertebral artery.
73. Dr. Cappuccino was the attending surgeon, and thus he needed to
order the transfer.
74. Dr. Clerk was no longer at the hospital that morning after his morning
consultations. Accordingly, Dr. Dyster helped complete the paperwork for
discharge and transfer.
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75. A "COBRA"form.(a hospital.transfer form) was prepared and an
ambulance were notified for transfer at 12.20.. At..12:38, Dr. Dyster authored a
note documenting that Dr. Clerk had asked him to facilitate transfer by completing
the COBRA form. Mr. Kausner was.then transferred.
76. At Gates Vascular Institute, the angiogram perfOrmed by Elad Levy,
M.D., revealed an arterial injury. Joseph Pollina, Jr.., M.D., performed an
operation to decompress Mr. Kausner's spinal cord, and Dr. Levy performed
arterial stenting to address the arterial injury.
77. Thereafter, this lawsuit was commenced against.Dr. Clerk and others.
PLAINTIFFS ALLEGATIONS AGAINST
DR. CLERK ARE MERITLESS.
78. I have reviewed plaintiffs' allegations against Dr. Clerk and his P.C. in
their bill of particulars and find therm to be meritless. All of the allegations are
directed to Dr. Clerk and the P.C. It is my opinion, with a reasonable degree of
medical certainty, that Dr. Clerk's care of Mr. Kausner was at all times in keeping
with the standard of care.
79. Specifically, plaintiffs allege that defendants "fail[ed] 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," and also that Dr.
Clerk "fail[ed] to transfer Thomas Kausner to Gates Vascular Institute/Buffalo
General Hospital on an emergent basis."
80. This is false. As previously stated, Dr. Cappuccino was the attending
physician and would be responsible for facilitating the transfer. Dr. Clerk would
necessarily defer to Dr. Cappuccino in his role as the attending, and would not be
involved with transfer unless Dr. Cappuccino or his team were unavailable. Indeed,
the only reason that Dr. Clerk was involved with the transfer here is because
transfer requires a physician and Dr. Cappuccino was unavailable. Ultimately, the
role fell to Dr. Dyster because Dr. Clerk was not available, either.
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81.. Plaintiffs allege that defendants "fail[ed] to order an angiogram STAT
and develop a plan to repair an injury to the left vertebral artery immediately or in
a timely fashion." This allegation is meritless as to Dr. Clerk because he is not a
surgeon. If it were a valid claim, it should instead be directed to Dr. Cappuccino,
At the risk of stating the obvious, Dr. Clerk would not have known that the left
vertebral artery was injured at all. The record does not reflect that he was told
about any bleeding during the surgery, he was not told about the MRI or MRA, and
because he is not a surgeon, there is nothing he could have done to repair the
artery. Any argument to the contrary is meritless. The responsibility would fall on
Dr. Cappuccino as the surgeon.
82. Plaintiffs allege that defendants "fail[ed] to recognize left vertebral
artery injury," and "fail[ed] to timely and properly assess and correct left vertebral
artery injury." For the reasons previously stated, this allegation is meritless. Dr.
Clerk would have had no way to know about a left vertebral artery injury because
Dr. Cappuccino's operative report was not available to him for his review. He did
not order the MRA, and did not discuss the results of that diagnostic test with Dr.
Lutnick. All of these issues were in the purview of the attending surgeon, and not
Dr, Clerk.
83. Dr. Clerk is not .a surgeon. He did not have an opportunity to view Dr.
Cappuccino's operative report to learn about any possible intra-operative bleed, and
post-operative imaging was ordered by and copied to Dr. Cappuccino and Eric Dean.
This course of events confirm that this aspect of care was not within Dr. Clerk's
limited role.
84. Plaintiffs allege that defendants "fail[ed] to assess the significance of
packing with respect to left vertebral artery injury." This allegation is also
meritless because Dr. Clerk was not aware that any packing was utilized in Dr.
Cappuccino's surgery. He is not a surgeon and was not part of the surgical team.
He was not present for any aspects of surgery. He was not told about the presence of
Fibrillar and would have no way to know that Fibrillar was used. He did not order
or see the MRI.
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85. Plaintiffs allege that defendants "fail[ed] to order STAT MRI's and
MRA's." This allegation is meritless because Dr. Clerk was in charge of the medical
management of Mr. Kausner's blood pressure. Dr. Cappuccino and his team were
responsible for Mr. Kausner's post-operative care. Dr. Clerk's limited role is not
comparable to Dr. Cappuccino's role as the attending physician and surgeon
handling post-operative care. The standard of care certainly did not require Dr.
Clerk to order MRI's and MRA's. As Dr. Clerk correctly explained at his deposition,
Dr. Cappuccino was the "captain of the ship." In that regard, Dr. Cappuccino was
solely responsible for obtaining post-operative imaging for the assessment of Mr.
Kausner's status.
86. Plaintiffs allege that defendants "fail[ed] to timely and properly assess
neurological signs and symptoms and the need for emergent care relative to same."
Plaintiff did not exhibit neurologic signs and symptoms requiring urgent care
during Dr. Clerk's physical examinations. Mr. Kausner had normal two plus
reflexes in his biceps and triceps on the morning of September 2. By the time Dr.
Clerk examined Mr. Kausner on September 3, he had already been seen by Mr.
Dean as a member of Dr. Cappuccino's attending team, who documented Mr.
Kausner's lethargy but lack of long tract signs. Mr. Dean was clearly involved in
the process that morning and assessing these issues as part of the attending team.
Ultimately,. Dr. Cappuccino determined that transfer was indicated in his role as
the attending.
87. Plaintiffs allege that defendants "failed to properly assess the patient
on the dates of September 1, 2 and 3, 2015." This is false. Dr. Clerk performed
appropriate and indicated assessments at each visit, at all times in keeping with
the standard of care. Specifically, he documented the events that took place in
between encounters, reviewed Mr. Kausner's systems, ordered medications, and
established a plan of care for the treatment of Mr. Kausner's elevated blood
pressure.
88. Plaintiffs allege that defendants "failed to properly assess and treat
and determine the cause for neurological signs and symptoms including difficulty
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breathing, high blood pressure, inability to urinate, weakness and numbness and/or
communicate significant findings to Andrew Cappuccino, M.D. and Eric Dean,.RPA-
0," Again, these allegations against Dr. Clerk have no. merit. .Mr. Kausner did not
exhibit concerning neurologic signs during Dr. Clerk's examinations until
September 3. Moreover, Mr. Kausner was seen and assessed by Dr. Cappuccino and
Mr. Dean for those issues — which was entirely consistent with Dr. Clerk's limited
role of medical management for Mr. Kausner's hypertension. To be clear, Dr. Clerk
appropriately treated Mr. Kausner for high blood pressure and potential associated
respiratory issues, while the other aspects of the postsurgical care (including
urinary issues and neurologic issues) were up to Dr. Cappuccino and P.A. Dean.
Further, high blood pressure is not a neurologic sign, and was easily explained by
Mr. Kausner's recentsurgery and level of pain. Dr. Clerk had no reason.to suspect
any sinister etiology for the high blood pressure based on Mr. Kausner's clinical
condition..
89. Plaintiffs allege that defendants c`fail[ed] 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." To state the obvious, these would be.
considere.d post-surgical findings and would be managed by the surgical team.
Again, Dr. Clerk was riot aware of the hematoma or any purported spinal cord
compression. The MRI in this case was ordered and reviewed by Dr. Cappuccino
and Mr.. Dean. It did not fall within Dr. Clerk's limited role to assess this aspect of
Mr. Kausner's post-operative care or to order or review imaging.
90. Plaintiffs .allege that defendants "fail[ed] to take into account the
expansion of hemostatic agents." This allegation is likewise. meritless and. not
properly directed to Dr. Clerk because Dr; Clerk would not know hemostatic agents
were utilized intra-operatively. Dr. Cappuccino's operative report was not dictated
until well after Dr. Clerk's care had ended. Additionally, because he is not a
surgeon who uses hemostatic agents, and he was not the attending physician in his
case, it was not within Dr. Clerk's purview to consider the purported expansion of
hemostatic agents.
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91. Plaintiffs allege that defendants "fail[ed] to assess the spinal cord and.
the left vertebral artery injury post-op." This is another meritles.s allegation in the
same vein that fails to take into account the surgical team's responsibility for this
aspect ofthe care and Dr. Clerk's circumscribed role as a physician providing
medical management for hypertension. He was not a surgeon and would have no
reason to assess the spinal cord (or the vertebral artery injury that he was not even
aware of). For the reasons previously stated in response to similar allegations, this
.allegation is without merit.
92. Plaintiffs allege that defendants "fail[ed] to discontinue Toradol" and
"allow[ed] the administration of doses of Toradol when same was contraindicated."
As Dr. Clerk explained at his deposition, Toradol was ordered by Dr. Cappuccino. It
was not Dr. Clerk's role to override the judgment ofthe attending surgeon.
regarding his order of post-operative Toradol:
93. Plaintiffs allege that defendants "fail[ed] to appreciate the significance
of urinary retention and high blood pressure and prescribing medications for same
without determining the cause." From Dr. Clerk's perspective, Mr. Kausner's high
blood pressure was attributable to the recent surgery, associated post-operative
pain, and anxiety. It is normal for a patient in severe pain and experiencing
anxiety to develop this type of hypertension. Given Dr. Clerk's limited role in this
case,: it was Dr. Cappuccino and Mr. Dean's duty to consider the potential meaning
of the urinary retention as it pertained to their surgery, and Dr. Clerk appropriately
treated the elevated blood pressure..
94. Plaintiffs.allege that defendants "fail[ed] to do timely neuro checks,
document same, or order same." As a spine surgery team,Dr. Cappuccino and Eric
Dean were the experts clearly in charge of the neurologic aspect of Mr. Kausner's
care. On the morning of September 2, Dr. Clerk saw Mr. Kausner and then Mr.
Dean saw him just a few hours later, at which point Mr. Dean documented
decreased subjective sensation in both hands and ordered an MRI and MRA.
95. Plaintiffs allege that defendants `!fail[ed] to determine why the Jackson
Pratt drain was not draining." This is another clear postoperative responsibility of
15 of 25
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NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021
Mr. Dean and Dr. Cappuccino, not Dr. Clerk. As of 19:05 on September 1, the
Jackson-Pratt drain was draining bloody drainage according to. Linda Kozlowski,
R.N. At 22:30; Joan Parks, R.N., documented.that Eric Dean was notified about the
Jackson Pratt drain riot maintaining suction. Ms. Parks manipulated the drain to
improve suction and continued to monitor the situation. Once again, this is a post-
surgical function:for the surgical team.
96. Thereafter, at 5:35 a..m.; Eric.Dean was.again infOrnied that the
Jackson-Pratt drain was not maintaining suction. Eric specifically advised
providers to leave. the drain alone until he arrived to see it. Given his role on the
surgical team, this makes perfect sense.. Thereafter, Mr.. Dean discontinued the
Jackson-Pratt drain. Thus; it is clear the: attending team was iri charge, and Dr.
Clerk was never apprised.of any issues with the Jackson-Pratt drain. There would
be no reason for Dr. Clerk to be involved.
97. Plaintiffs allege. that defendants "negligently allov.viedi a
predetermined 'set' of post-op orders to be acted upon and administered:" To the
extent that this is a criticism of Dr. Clerk for permitting the use of Toradol,. t
Preview
FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA THOMAS and CHERYL KAUSNER, Individually & As Husband and Wife, Plaintiffs, ' Vs" AFFIDAVIT Index # E159518/2010 BUFFALO SPINE SURGERY,PLLC, ANDREW CAPPUCCINO, M.D., ERIC DEAN, RPA-C, HARNATH CLERK, M.D., P.C., HARNATH B. CLERK, M.D., EASTERN NIAGARA HOSPITAL,INC., ROBERT E. LUTNICK, M.D., EASTERN NIAGARA RADIOLOGY & NUCLEAR MEDICINE ASSOCIATES, P.C., Defendants. STATE OF NEW YORK COUNTY OF TOMPKINS ) ss.: CITY OF ITHACA MARTIN STALLONE., M.D., being duly sworn, deposes and says: 1. I am a physician duly licensed to practice medicine in the State of New York. I offer this affidavit in support .of the motion by Harnath Clerk, M.D.,and Harnath Clerk, M.D., P.C., seeking summary judgment. 2. I.earned my medical degree from the University ofPennsylvania School of Medicine in Philadelphia, Pennsylvania in 2004. Thereafter, I completed an internship and residency in Internal Medicine from the Hospital of the University of Pennsylvania. I am board-certified by the American Board of Internal Medicine., a certification that I have held continuously since 2007. 3. I am currently an attending physician actively practicing Internal Medicine at Cayuga Medical. Center in.Ithaca, New York. 4. Based upon my education, knowledge,. training, and experience, I am well-versed in the standard of care applicable to Internal Medicine, and more 1 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 specifically with evaluating and treating patients who present with high blood pressure in the post-operative hospital setting such as Thomas Kausner. 5. In preparation for making this affidavit, I reviewed the following: • Plaintiffs Summons & Complaint; • Dr.. Clerk's Answer; • Plaintiffs Verified Bill of Particulars directed to Dr. Clerk; • Plaintiffs Supplemental Bill of Particulars directed to Dr. Clerk; • Plaintiffs Amended Complaint; • Dr. Clerk's Answer to the Amended Complaint; The records of- • Eastern Niagara Hospital; • Buffalo General Medical. Center; • Erie County Medical Center; • Buffalo Spine Surgery; • Billy Carstens,. D.O.; • Robert Ablove, M.D.; • Vaijayantee Belle, M.D.; • Donna Czarnecki, Ph.D.; • James Czyrny, M.D.; • Dent Neurologic Institute; • Tat Fung, M.D.; • Thomas Holmlund, M.D.; • Olean General Rehab; • James Vandewall, M.D.; The deposition testimony of- • Thomas Kausner; • Cheryl Kausner; • Andrew Cappuccino, M.D.; 2 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 • Eric Dean, R.P.A.-C; • Donna Heiman, R.N.; • Harnath. Clerk, M.D.; • Erika Eberlin; • Kim Careri, R.N..; . • Margaret BOlt, R.N.; • Robert Moreno, R.N.; • Barbara Cronshaw, R.N.; • Joseph Koss; • Joseph Yanulevich, • Hany Fattouch, M.D.; • Melissa Lasly; • Alyssa Wendt; • John Dyster, M.D.; • Shelley Jakubec., R.N.; • Joan Parks, R.N.; • Ken Crane; • Robert Lutnick, M.D.;. • Rachel Napoleon; • Dawn Knott; • Shannon Johnson; • Christine Delgado, R.N.; • Alexander Rovner, M.D.; • Elad.Levy, M.D., • John Pollina, Jr:, M.D., and • Linda Kozlowksi, R.N. 6. It is my opinion, with a reasonable degree of medical certainty,that Dr. Clerk was not negligent and did not: commit medical malpractice:in his treatment of Thomas Kausner from September 1, 2015. through September 3, 2015. Dr. Clerk was not Mr. Kausner's attending physician, and he played a limited role 3 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 in Mr. Kausner's care and treatment. It is my opinion, with a reasonable degree of medical certainty, that Dr. Clerk's care: was at all times in keeping with the standard ofcare. 7. Moreover, it is my opinion, with a reasonable degree of medical certainty, that any claimed negligence. or malpractice on Dr. Clerk's part did not cause Mr. Kausner's allege.d injuries or damages. 8, I respectfully request that the Court dismiss this lawsuit against Dr. Clerk and his professional corporation. THOMAS KAUSNER 9.. On September..1, 2015, Thomas Kausner presented to Eastern Niagara Hospital for an anterior cervical discectomy and interbody fusion from 03-7 to be performed by Andrew Cappuccino,M.D.. 10. In the history and physical dated August 25., 2015, Mr, Kausner's chief complaint was neck pain which radiated to his hands. It was sharp, constant, and rated 9110. He also,complained of numbness. 11. On the date ofsurgery, Dr. Cappuccino was assisted by his physician assistant, Eric Dean. 12. During the surgery, Dr. Cappuccino encountered a "trickling of blood". which he described as venous in nature and non-pulsatile. 13. Dr. Cappuccino documented that the area began to'hemorrhage significantly, so he paCked it with Fibrillar (a hemostatic agent). 14.. Dr. Cappuccino closed the wound, found Mr. Kausner to be neurologically and vascularly intact, and transported him to the recovery room, where he remained stable. 15. Dr. Clerk first became involved during the post-operative period. .At 14:16, Mr. Dean, placed an order for a "medical management." consultation with Dr. Clerk. 16.: As Dr.. Clerk explained at his deposition, his role in methcal management was primarily to manage Mr. Kausner's blood pressure: If Mr. 4 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 Kausner developed some other issue, like shortness of breath, Dr. Clerk would then assist. 17. Ultimately, and consistent with a post-operative orthopedic patient like Mr. Kausner, all consequential decision-making was left to the attending physician (Dr. Cappuccino) and physician assistant(Mr. Dean). Dr. Clerk was simply a consultant. 18. Dr. Clerk was never informed of Mr. Kausner's intra-operative blood. loss. In fact, Dr. Cappuccino's operative report was not dictated until September 17, 2015. Thus, Dr. Clerk did not have an opportunity to review it during involvement in Mr. Kausner's care. 19. In the post-anesthesia care unit, Mr. Kausner was on four liters of oxygen via nasal cannula until 14:45, and then room air. He developed hypertension (elevated blood pressure) and was in severe pain. Dr. Clerk was not involved in his PACU care. 20. Upon discharge from the PACU, Mr. Kausner's blood pressure was 148/88. In an untimed order attributed to anesthesiologist Hany Fattouch, M.D., Mr. Kausner was to receive. Labetalol 5 mg.(a blood pressure medication) via IV. 21. Around 16:15, Mr. Kausner arrived in the ICU. His blood pressure was 167/93. 22. Linda Kozlowski, R.N., cared for Mr. Kausner when he first arrived in the ICU. He complained of 9/10 pain, was agitated, and was unable to grip the PCA button, He was given 2 mg. of Dilaudid intramuscularly, and 5 mg. of Valium orally. 23. Mr. Kausner also received Toradol post-operatively. As one would expect, the medication was ordered by Dr. Cappuccino's team, and Dr. Clerk was not managing Mr. Kausner's post-operative pain. 24. He settled down temporarily, but remained agitated. Dr. Cappuccino was aware. Dr. Cappuccino advised that providers could get Mr. Kausner up out of bed and into 'a chair to see if it would make him more comfortable. 5 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 25. Dr. Clerk was not called until the evening of September 1. His first involvement came at 19:35. Joan Parks, R.N., called Dr. Clerk. 26. Ms. Parks informed Dr. Clerk that Mr. Kausner had elevated blood pressure (with readings of 192/98, 177/98, and 171/100) and that Mr. Kausner reported intake of drinks five beers per day. 27. Dr. Clerk returned Ms. Parks' call at 19:45. Dr. Clerk advised that Dr. Cappuccino should be made aware of.Mr. Kausner's alcohol use. Notably, alcohol withdrawal may increase a patient's blood pressure. 28. During the call, Dr. Clerk ordered one inch of Nitropaste every six hours, and Clonidine ..1 mg for control of the blood pressure if it reached 160/90 (which Ms. Parks erroneously documented as 190/90). 29. Ms. Parks also informed.Dr. Clerk that Mr. Kausner had been placed on Librium (a medication to treat alcohol withdrawal). 30. The Clonidine was not administered that evening, and Dr. Clerk placed a new order for it the following morning. 31. At 20:00, Mr. Dean called to check on Mr. Kausner. Ms. Parks advised P.A. Dean that Mr. Kausner's blood pressure was elevated, and that Mr. Kausner had a difficult time using the PCA button (pain medication pump). Mr. Dean was aware that Mr. Kausner drank five beers per day. He ordered Librium and Valium. 32. Dr. Clerk first saw the patient some time in the evening of September 1, 2015, after he spoke with Ms. Parks. He dictated his medical consultation the following day. 33. At the time of the consultation, Mr. Kausner's blood pressure was elevated at 200/120. 34. Dr. Clerk obtained a detailed history and review of systems. Dr. Clerk was unaware of any intra-operative bleed. The operative note was not yet dictated. 35. Dr. Clerk recommended ICU care, the aforementioned Nitropaste and Clonidine, that Mr. Kausner's CBC and BMP be monitored, and continuation of pain medication. Dr. Clerk documented that if Mr. Kausner does well, then.he. 6 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 could be discharged to the floor the following day. This encapsulates Dr. Clerk's first of three consultations. 36. At 22:30, Mr. Dean was notified that Mr.. Kausner's Jackson-Pratt drain was not maintaining suction. Per Mr. Dean's instructions, the nurse manipulated the drain, and suction was re-established. 37. At 23:30, Mr. Dean was notified that Mr. Kausner's oxygen saturations dropped.. Mr. Dean ordered oxygen to keep Mr. Kausner's saturation above 92%. A venti mask was applied, and the oxygen saturations were maintained at 92%. 38. Throughout the early morning hours on September 2, Mr. Kausner's blood pressure remained slightly elevated, but had improved from the previous evening. Ms. Parks documented readings of 171/95, 169/86, and 176/92. 39. Dr. Clerk was not contacted about the blood pressure readings or for any other reason at all between the late evening of September 1 and the morning of September 2. Rather, Mr. Dean was contacted because he was part of the attending's team. 40. At 5:35 a.m., Ms. Parks again contacted Mr. Dean to inform him that Mr. Kausner's Jackson-Pratt drain was still not maintaining suction. He had only had only 20 cc's of output during Ms... Parks' shift. 41. .At 5:40 a.m., Mr. Kausner pulled off his venti mask because his nose was dried out. Mr. Kausner mentioned that he had numbness in his fingers and hands and he was able to push the button with moderate difficulty. Thereafter, he rested comfortably. 42. That morning,. Mr. Kausner had normal lab values. As the attending physician, Dr. Cappuccino followed Mr. Kausner's lab values. 43. Dr. Clerk saw Mr. Kausner on the morning of September 2, 2015. His blood pressure was trending in the right direction, albeit still elevated, with readings of 159/83 at 6 a.m. and 167/89 at 7 a.m. 44. Notably, at 8 a.m.., Mr. Kausner's blood pressure was in an acceptable range at 144/82. From Dr. Clerk's perspective, the regimen of medications appeared to be working. 7 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 45. Dr. Clerk documented that Mr. Kausner had less neck pain, less shortness of breath, less cough and better blood pressure. 46. The recent painful surgical intervention was an obvious explanation for Mr. Kausner's post-operative high blood pressure. Mr. Kausner was in pain and anxious.. The stress of surgery can be difficult for a patient and can raise the patient's blood pressure. 47. Mr. Kausner complained of headaches and shortness of breath. He was in no acute respiratory distress, and Dr. Clerk testified that Mr. Kausner was comfortable and not in acute respiratory distress at the time of the consultation. 48. Dr. Clerk did not see Mr. Kausner again on September 2, and did not receive any updates on him. At the risk of stating the obvious, this was reasonable given Dr. Clerk's limited role, especially in comparison to that of the surgeon and his team, who were actively involved in Mr. Kausner's care and treatment. 49. Mr. Kausner was then seen by Mr. Dean. Mr. Dean documented that Mr. Kausner had 4/5 bilateral grips, 4/5 right deltoid and biceps decreased subjective sensation in both hands. As part of the attending surgeon's team, Mr. Dean was responsible for assessing strength and managing the numbness in Mr. Kausner's hands (as well as all other post-operative neurologic issues). 50. Mr. Dean and. Dr. Cappuccino added Solu-Medrol (methylprednisolone), a steroid, in an effort to treat Mr. Kausner's condition. The order was placed at 11:11. 51. An MRI and MRA were ordered by Dr. Cappuccino and Mr. Dean. Mr. Dean and Dr. Cappuccino reviewed Mr. Kausner's status and planned a transfer to another floor. Dr. Clerk was not informed of any of the events of that afternoon — presumably because they all fell under the auspices of the attending. 52. Mr. Kausner's blood pressure was elevated in the afternoon, but again, Dr. Clerk was not notified. 53. At 17:00, Mr. Kausner returned from imaging. He reported increased cervical pain and bilateral upper extremity weakness, more pronounced on the right upper extremity, and generalized muscle weakness. 8 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 54. In the afternoon of September 2, radiologist Robert Lutnick, M.D., reviewed the MRI and MRA and discussed his findings with Dr. Cappuccino and Mr. Dean. 55. At 19:42, Robert Moreno, R.N., documented no neuro deficits, facial symmetry, tongue protrusion normal, smile equal, pupils equal and reactive, grips equal, and some gross motor weakness with lifting Mr. Kausner's right arm. 56. At 19:57, Mr. Moreno documented that Mr. Kausner's blood pressure was 165/102. Mr. Kausner was given Clonidine .1 mg. 57. In the evening of September 2, the patient and family offered concerns about the MRI and MRA results and right arm weakness. 58. At 20:48, based on his responsibility as part of the attending team, Mr. Dean called and spoke with Mrs. Kausner. They discussed the imaging, and Mr. Dean provided reassurances. 59. At 22:56, Mr. Kausner complained of pain of 7/10 and had not voided. Dr. Cappuccino was notified and it was recommended that Mr. Kausner use a commode, but that did not help. Mr. Kausner was assisted back to his bed, unsteady on his feet. 60. As of 00:26 on September 3, 2015, Mr. Kausner was still unable to void and.Mr. Dean ordered a straight catheter. As of 2 a.m., Mr. Kausner's oxygen saturation fluctuated between 87-91% on nasal cannula. He was given a venti mask, and his oxygen saturation fluctuated between 88% and 96%. 61. Notably, Dr. Clerk was not contacted at all again in the evening of September 2 and early morning hours of September 3.. 62. At 7 a.m., Shelley Jakubec, R.N., documented that the PCA pump Dilaudid was discontinued. On behalf of the attending team, Mr. Dean evaluated. Mr. Kausner in the morning and requested all narcotics held until Mr. Kausner's mental status improved, a urology consult, and that he would review with "AC" (Andrew Cappuccino). 63. At 7;30 a.m., Mr. Dean examined Mr. Kausner and was aware of the extreme weakness.. 9 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 64. Mr. Kausner was assisted out of bed to the chair, but did poorly and was unable to move his left foot. 65. Ms. Jakubec described him as very weak on the left side. At 8 a.m., Mr. Dean held Librium and Neurontin. 66. Consistent with his responsibility as part of Dr. Cappuccino's surgical team, Mr. Dean documented that Mr. Kausner was lethargic but moved all four extremities and followed commands. His right deltoid and bicep were weakened. He did not have any long tract signs. His sensation was diminished but still present in both hands, and it was intact elsewhere. 67. Dr. Clerk saw Mr.. Kausner again on the morning of September 3. This was the first time he saw Mr. Kausner in about 24 hours. The hypertension had persisted, and Dr. Clerk documented "hypoxia worse today." Mr. Kausner also had new onset orthopnea and lethargy (as described above). 68. Dr. Clerk did not evaluate Mr. Kausner's extremities that day, which was reasonable because P.A. Dean saw him shortly before. 69. Dr. Clerk ordered an arterial blood gas and chest x-ray because of Mr. Kausner's difficulty breathing. Mr. Kausner had a low level of oxygen in the blood. 70. The portable chest x-ray demonstrated questionable atelectasis versus a right lower lobe infiltrate. Dr. Clerk also added Duoneb (breathing treatment). 71. Because Mr. Kausner was clearly declining, preparations were made to transfer Mr. Kausner to Gates Vascular Institute in Buffalo, New York, for a higher level of care. 72. Around 10:30, Dr. Cappuccino spoke to Mrs. Kausner and made her aware of a planned transfer for an angiogram of the vertebral artery. 73. Dr. Cappuccino was the attending surgeon, and thus he needed to order the transfer. 74. Dr. Clerk was no longer at the hospital that morning after his morning consultations. Accordingly, Dr. Dyster helped complete the paperwork for discharge and transfer. 10 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 75. A "COBRA"form.(a hospital.transfer form) was prepared and an ambulance were notified for transfer at 12.20.. At..12:38, Dr. Dyster authored a note documenting that Dr. Clerk had asked him to facilitate transfer by completing the COBRA form. Mr. Kausner was.then transferred. 76. At Gates Vascular Institute, the angiogram perfOrmed by Elad Levy, M.D., revealed an arterial injury. Joseph Pollina, Jr.., M.D., performed an operation to decompress Mr. Kausner's spinal cord, and Dr. Levy performed arterial stenting to address the arterial injury. 77. Thereafter, this lawsuit was commenced against.Dr. Clerk and others. PLAINTIFFS ALLEGATIONS AGAINST DR. CLERK ARE MERITLESS. 78. I have reviewed plaintiffs' allegations against Dr. Clerk and his P.C. in their bill of particulars and find therm to be meritless. All of the allegations are directed to Dr. Clerk and the P.C. It is my opinion, with a reasonable degree of medical certainty, that Dr. Clerk's care of Mr. Kausner was at all times in keeping with the standard of care. 79. Specifically, plaintiffs allege that defendants "fail[ed] 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," and also that Dr. Clerk "fail[ed] to transfer Thomas Kausner to Gates Vascular Institute/Buffalo General Hospital on an emergent basis." 80. This is false. As previously stated, Dr. Cappuccino was the attending physician and would be responsible for facilitating the transfer. Dr. Clerk would necessarily defer to Dr. Cappuccino in his role as the attending, and would not be involved with transfer unless Dr. Cappuccino or his team were unavailable. Indeed, the only reason that Dr. Clerk was involved with the transfer here is because transfer requires a physician and Dr. Cappuccino was unavailable. Ultimately, the role fell to Dr. Dyster because Dr. Clerk was not available, either. 11 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 81.. Plaintiffs allege that defendants "fail[ed] to order an angiogram STAT and develop a plan to repair an injury to the left vertebral artery immediately or in a timely fashion." This allegation is meritless as to Dr. Clerk because he is not a surgeon. If it were a valid claim, it should instead be directed to Dr. Cappuccino, At the risk of stating the obvious, Dr. Clerk would not have known that the left vertebral artery was injured at all. The record does not reflect that he was told about any bleeding during the surgery, he was not told about the MRI or MRA, and because he is not a surgeon, there is nothing he could have done to repair the artery. Any argument to the contrary is meritless. The responsibility would fall on Dr. Cappuccino as the surgeon. 82. Plaintiffs allege that defendants "fail[ed] to recognize left vertebral artery injury," and "fail[ed] to timely and properly assess and correct left vertebral artery injury." For the reasons previously stated, this allegation is meritless. Dr. Clerk would have had no way to know about a left vertebral artery injury because Dr. Cappuccino's operative report was not available to him for his review. He did not order the MRA, and did not discuss the results of that diagnostic test with Dr. Lutnick. All of these issues were in the purview of the attending surgeon, and not Dr, Clerk. 83. Dr. Clerk is not .a surgeon. He did not have an opportunity to view Dr. Cappuccino's operative report to learn about any possible intra-operative bleed, and post-operative imaging was ordered by and copied to Dr. Cappuccino and Eric Dean. This course of events confirm that this aspect of care was not within Dr. Clerk's limited role. 84. Plaintiffs allege that defendants "fail[ed] to assess the significance of packing with respect to left vertebral artery injury." This allegation is also meritless because Dr. Clerk was not aware that any packing was utilized in Dr. Cappuccino's surgery. He is not a surgeon and was not part of the surgical team. He was not present for any aspects of surgery. He was not told about the presence of Fibrillar and would have no way to know that Fibrillar was used. He did not order or see the MRI. 12 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 85. Plaintiffs allege that defendants "fail[ed] to order STAT MRI's and MRA's." This allegation is meritless because Dr. Clerk was in charge of the medical management of Mr. Kausner's blood pressure. Dr. Cappuccino and his team were responsible for Mr. Kausner's post-operative care. Dr. Clerk's limited role is not comparable to Dr. Cappuccino's role as the attending physician and surgeon handling post-operative care. The standard of care certainly did not require Dr. Clerk to order MRI's and MRA's. As Dr. Clerk correctly explained at his deposition, Dr. Cappuccino was the "captain of the ship." In that regard, Dr. Cappuccino was solely responsible for obtaining post-operative imaging for the assessment of Mr. Kausner's status. 86. Plaintiffs allege that defendants "fail[ed] to timely and properly assess neurological signs and symptoms and the need for emergent care relative to same." Plaintiff did not exhibit neurologic signs and symptoms requiring urgent care during Dr. Clerk's physical examinations. Mr. Kausner had normal two plus reflexes in his biceps and triceps on the morning of September 2. By the time Dr. Clerk examined Mr. Kausner on September 3, he had already been seen by Mr. Dean as a member of Dr. Cappuccino's attending team, who documented Mr. Kausner's lethargy but lack of long tract signs. Mr. Dean was clearly involved in the process that morning and assessing these issues as part of the attending team. Ultimately,. Dr. Cappuccino determined that transfer was indicated in his role as the attending. 87. Plaintiffs allege that defendants "failed to properly assess the patient on the dates of September 1, 2 and 3, 2015." This is false. Dr. Clerk performed appropriate and indicated assessments at each visit, at all times in keeping with the standard of care. Specifically, he documented the events that took place in between encounters, reviewed Mr. Kausner's systems, ordered medications, and established a plan of care for the treatment of Mr. Kausner's elevated blood pressure. 88. Plaintiffs allege that defendants "failed to properly assess and treat and determine the cause for neurological signs and symptoms including difficulty 13 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 breathing, high blood pressure, inability to urinate, weakness and numbness and/or communicate significant findings to Andrew Cappuccino, M.D. and Eric Dean,.RPA- 0," Again, these allegations against Dr. Clerk have no. merit. .Mr. Kausner did not exhibit concerning neurologic signs during Dr. Clerk's examinations until September 3. Moreover, Mr. Kausner was seen and assessed by Dr. Cappuccino and Mr. Dean for those issues — which was entirely consistent with Dr. Clerk's limited role of medical management for Mr. Kausner's hypertension. To be clear, Dr. Clerk appropriately treated Mr. Kausner for high blood pressure and potential associated respiratory issues, while the other aspects of the postsurgical care (including urinary issues and neurologic issues) were up to Dr. Cappuccino and P.A. Dean. Further, high blood pressure is not a neurologic sign, and was easily explained by Mr. Kausner's recentsurgery and level of pain. Dr. Clerk had no reason.to suspect any sinister etiology for the high blood pressure based on Mr. Kausner's clinical condition.. 89. Plaintiffs allege that defendants c`fail[ed] 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." To state the obvious, these would be. considere.d post-surgical findings and would be managed by the surgical team. Again, Dr. Clerk was riot aware of the hematoma or any purported spinal cord compression. The MRI in this case was ordered and reviewed by Dr. Cappuccino and Mr.. Dean. It did not fall within Dr. Clerk's limited role to assess this aspect of Mr. Kausner's post-operative care or to order or review imaging. 90. Plaintiffs .allege that defendants "fail[ed] to take into account the expansion of hemostatic agents." This allegation is likewise. meritless and. not properly directed to Dr. Clerk because Dr; Clerk would not know hemostatic agents were utilized intra-operatively. Dr. Cappuccino's operative report was not dictated until well after Dr. Clerk's care had ended. Additionally, because he is not a surgeon who uses hemostatic agents, and he was not the attending physician in his case, it was not within Dr. Clerk's purview to consider the purported expansion of hemostatic agents. 14 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 91. Plaintiffs allege that defendants "fail[ed] to assess the spinal cord and. the left vertebral artery injury post-op." This is another meritles.s allegation in the same vein that fails to take into account the surgical team's responsibility for this aspect ofthe care and Dr. Clerk's circumscribed role as a physician providing medical management for hypertension. He was not a surgeon and would have no reason to assess the spinal cord (or the vertebral artery injury that he was not even aware of). For the reasons previously stated in response to similar allegations, this .allegation is without merit. 92. Plaintiffs allege that defendants "fail[ed] to discontinue Toradol" and "allow[ed] the administration of doses of Toradol when same was contraindicated." As Dr. Clerk explained at his deposition, Toradol was ordered by Dr. Cappuccino. It was not Dr. Clerk's role to override the judgment ofthe attending surgeon. regarding his order of post-operative Toradol: 93. Plaintiffs allege that defendants "fail[ed] to appreciate the significance of urinary retention and high blood pressure and prescribing medications for same without determining the cause." From Dr. Clerk's perspective, Mr. Kausner's high blood pressure was attributable to the recent surgery, associated post-operative pain, and anxiety. It is normal for a patient in severe pain and experiencing anxiety to develop this type of hypertension. Given Dr. Clerk's limited role in this case,: it was Dr. Cappuccino and Mr. Dean's duty to consider the potential meaning of the urinary retention as it pertained to their surgery, and Dr. Clerk appropriately treated the elevated blood pressure.. 94. Plaintiffs.allege that defendants "fail[ed] to do timely neuro checks, document same, or order same." As a spine surgery team,Dr. Cappuccino and Eric Dean were the experts clearly in charge of the neurologic aspect of Mr. Kausner's care. On the morning of September 2, Dr. Clerk saw Mr. Kausner and then Mr. Dean saw him just a few hours later, at which point Mr. Dean documented decreased subjective sensation in both hands and ordered an MRI and MRA. 95. Plaintiffs allege that defendants `!fail[ed] to determine why the Jackson Pratt drain was not draining." This is another clear postoperative responsibility of 15 of 25 FILED: NIAGARA COUNTY CLERK 11/26/2021 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 241 RECEIVED NYSCEF: 11/26/2021 Mr. Dean and Dr. Cappuccino, not Dr. Clerk. As of 19:05 on September 1, the Jackson-Pratt drain was draining bloody drainage according to. Linda Kozlowski, R.N. At 22:30; Joan Parks, R.N., documented.that Eric Dean was notified about the Jackson Pratt drain riot maintaining suction. Ms. Parks manipulated the drain to improve suction and continued to monitor the situation. Once again, this is a post- surgical function:for the surgical team. 96. Thereafter, at 5:35 a..m.; Eric.Dean was.again infOrnied that the Jackson-Pratt drain was not maintaining suction. Eric specifically advised providers to leave. the drain alone until he arrived to see it. Given his role on the surgical team, this makes perfect sense.. Thereafter, Mr.. Dean discontinued the Jackson-Pratt drain. Thus; it is clear the: attending team was iri charge, and Dr. Clerk was never apprised.of any issues with the Jackson-Pratt drain. There would be no reason for Dr. Clerk to be involved. 97. Plaintiffs allege. that defendants "negligently allov.viedi a predetermined 'set' of post-op orders to be acted upon and administered:" To the extent that this is a criticism of Dr. Clerk for permitting the use of Toradol,. t