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FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022
STATE OF NEW YORK
SUPREMECOURT : NIAGARA COUNTY
THOMAS and CHERYL KAUSNER, Individually
and as Husband and Wife,
Affirmation of Plaintiffs'
Plaintiffs. Expert Radiologist
V. in
Opposition to Motion
BUFFALO SPINE SURGERY, PLLC, for Summary Judgment by
ANDREW CAPPUCCINO, M. D, Defendants Robert E.
ERIC DEAN. RPA-C. Lutnick. M.D. and Eastern
HARNATH B. CLERK, M. D, P. C, Niagara Radiology and
HARNATH B. CLERK, M. D, Nuclear Medicine
EASTERN NIAGARA HOSPITAL, INC., Associates, PC
ROBERT E. LUTNICK, M. D, and
EASTERN NIAGARA RADIOLOGY AND
NUCLEAR MEDICINE ASSOCIATES, P. C., IndexNo. El 59518/2016
Defendants.
I am a physician duly licensed to practice medicine in the State of New York.
This Affirmation is affirmed under penalties of perjury pursuant to Rule 2106 of the
CPLR.
1. This Affirmation is made on behalf of the plaintiffs in opposition to the
Motion for summary judgment (NYSCEF #216) submitted by defendant Robert E.
Lutnick, M. D. (hereinafter Lutnick) and his radiology group, Eastern Niagara Radiology
and Nuclear Medicine Associates, P. C. (hereinafter Eastern Niagara Radiology).
2. All opinions expressed herein are expressed with a reasonable degree of
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medical and radiological certainty.
MY CREDENTIALS
3. My credentials are as follows: Undergraduate Degree from a major college
in the City ofNew York, graduating in the top 5% of my class pre-med; attended medical
school at a major university hospital, graduating in the top third ofmy class; completing a
medical internship at a major state university hospital in a major northeastern city;
completing a four year diagnostic radiology residency at a major university in a major
northeastern city; and then practicing my specialty of radiology from 1976 to 2006 at one
of the largest groups of private practice radiologists in a major metropolitan area. I am a
Board Certified radiologist and full professor at a major northeastern university and a
Diplomat ofthe American College ofRadiology and a Fellow ofthe American College of
Radiology. Over the last several years, I have held the position of Professor of Clinical
Imaging at a major northeastern university and have worked as an expert radiologist
consultant. I have practiced diagnostic radiology for over 35 years. I have over three
decades of clinical experience as a Board Certified practicing radiologist.
MATERIALS REVIEWED
4. I have reviewed various materials in this case including the following:
Eastern Niagara record, 9/1/15-9/3/15 (EBT Exhibit 18) (NYSCEF
#235);
Eastern Niagara's MM, 9/2/15;
Eastern Niagara's MRA, 9/2/15;
Buffalo General's Cerebral angiogram, 9/3/15;
Buffalo General's Cerebral angiogram, 9/4/15, stenting of left vertebral
artery;
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Buffalo General's MRI cervical spine, 9/4/15,
Buffalo General's MRI brain, 9/4/15;
Buffalo General's Cerebral angiogram, 9/8/15;
ECMC's MRI cervical spine, 9/20/15;
ECMC's MRI brain, 9/20/15;
Robert Lutnick, M. D. deposition transcript;
Andrew Cappuccino's Operative Report, 9/1/15;
Eastern Niagara Hospital's Discharge Summary;
John Pollina, M. D. 's Operative Report, 9/3/15 (Exh. 5 hereto);
Affidavit ofRobert E. Lutnick, M. D. submitted in support of defendant
Lutnick's and Eastern Niagara Radiology's Motion for Summary
Judgment (NYSCEF #219);
Buffalo General Hospital's History and Physical, 9/3/15 (Exh. 4 hereto);
Philip T. Kumvilla, M.D. Consult Report, 9/9/15 (Exh. 6 hereto);
Erie County Medical Center's Discharge Summary Report, 10/16/15
(Exh. 7 hereto).
5. I affirm and opine without equivocation that Lutnick departed from
accepted standards ofradiological careandpractice, deviated from accepted standards of
care, acted negligently, and that such deviations, departures, and negligence caused injury
to Thomas Kausner (hereinaflter Kausner).
6. On the morning of September 2, 2015, an MRI ("for evaluation ofright arm
weakness") and MRA was ordered. The MRI study was performed that afitemoon from
2:36 p.m. to 2:52 p.m. After looking at the MRJ, Lutnick testified that he had never seen
a mass before like the mass seen at C5-6 compressing the spinal cord. So he spoke with
defendant Eric Dean, RPA-C (hereinafter Dean) who came down to radiology at
approximately 3:00 p.m. According to Lutnick, Deantold him that the mass was
Fibrillar, a mesh-like material whichwas used during Kausner's surgery to control
bleeding the day before.
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7. According to the report ofMR[ of September 2, 2015 which Lutnick
authored (not transcribed until 10:45 p. m. ), he noted that "the possibility of disc
protrusion with or without adjacent hemorrhage must be considered in the differential".
(See Exhibit 1 hereto, the MRI Report of 9/2/15 by Lutnick) I opine that the mass was
"huge" extending from C5 to C7 and severely compressing the cord. It was 4. 5 cm in
the vertical plane and 1. 5 cm in the anterior posterior plane. This was a medical and
surgical emergency. (See Exhibit 1, MRI image SE 2/7, Image 7/1 1)
8. According to Lutnick, he recommended an MRA be done to assess whether
there was an injury to the vertebral artery. The Eastern Niagara record reflects a phone
order for an MRA by Andrew Cappuccino, M. D. (hereinafter Cappuccino) at 3:35 p. m.
(NYSCEF #235, p. 70)
9. The MRA was perfonned from 4:08 p. m. to 4:31 p. m. According to
Lutnick, he spoke with Dean and/or Cappuccino at around 5:00 p. m. He told them that
the MRA did not show any injury to the vertebral artery. His report ofthis MRA
indicates "normal vertebral arteries specific left vertebral artery shows normal caliber and
no evidence of dissection or obstruction. " (Exh. 1) According to the Requisition Form
for the MRA, radiology tech Rachel Napoleon (hereinafter Napoleon) noted patient
history of"weakness R and L upper extremities S/P cervical Sy". (Exh. 3) I have been
informed by plaintiffs' counsel that she also testified that she had to take a verbal consent
to the MRA from Kausner because he was unable to sign the consent form with either
hand.
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10. Cheryl Kausner spoke with Cappuccino several days later on September 5,
2015, andCappuccino told herwhatLutnicktold him aboutthe MRI andMRA. (Exh.
2, transcript ofCappuccino/Cheryl Kausner phone call of September 5, 2015)
Cappuccino told herthat "There was little bit ofwhatthey felt wasthe packing, he
[Lutnick] didn't feel like it was a hematoma, at least atthatpoint. And I askedhim as
you did and questioned him they saidwell this is a little bit, a little bit more discoloration,
pressure onthe left sidethatI would like to seebuthe saidit doesn't look like something
that's expanding so I said okay I'll see howhe does overnight... ". (Exh. 2, p.4)
MY REVIEW OF THE SEPTEMBER 2 2015 MRI
11. I have reviewed the MRI ofthe cervical spine of September 2, 2015 which
demonstrates a large mass extending posteriorly involving the levels at C5 and C6. This
MRJ demonstrates post-surgical hematoma anteriorly. This MR! demonstrates extensive
com romise ofthe s inal canal with a large compressive extradural defect located
midline and to the left at C5-C6 with extension into the neural foramen. This MRI
shows that there are extensive compression forces on the spinal cord with findings
consistent with just minimal myelomalacia at that time (early evidence of damage to the
cord). This MRI demonstrates postsurgical bleeding noted from the level of C3-C7
posterior to thevertebral bodies andanteriorto theposterior spinal ligament. There are
compressive changeswhicharemajor andare located at C5-C6. TheMRI is deficient in
that C6 and C7 were only partially visualized. Further evaluation of C6 and C7 was
advisable via CAT scan.
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12. As the result ofLutnick's deviations and departures from accepted
standards of radiological care and practice, there was a delay in Kausner's transfer to
Gates Vascular Institute for definitive treatment from approximately 3:00 p. m. on
September 2, 2015 to 12:34 p. m. on September 3, 2015, a delay of 21. 5 hours. During
this time there was untreated severe cord compression and worsening damage to the cord
which can be seen in the MRI of September 4, 2015 later done at Buffalo General which I
reviewed and compared to the MRI of September 2, 2015. The damage to the cord seen
on the MRI of September 4, 2015 was more extensive that that seen on the MRI of
September 2, 2015.
13. This damage and injury to the cord could and should have been avoided
had Kausner been transferred to Gates Vascular Institute on September 2, 2015 at 3:00
p.m. so that a definitive angiogram asto vertebral artery injury could have been done.
This type ofangiogram wasnot available at Eastern NiagaraHospital andLutnick knew
that. Once at Gates, the vertebral artery injury could have been diagnosed and repaired
and then surgery promptly done to relieve the severe compression on the cord. Lutnick's
deviations and departures from accepted standards ofradiological care andpractice
caused this delay and further injury to the spinal cord. Lutnick also admitted in his
pretrial testimony that MRA is not as good as a tme angiogram.
MY REVIEWOF THE SEPTEMBER2 2015 MRA
14. I have reviewed the MRA of September 2, 2015. Contrary to Lutnick' s
Affidavit (NYSCEF #219), the MRA was simply non-diagnostic and had significant
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technical limitations. The MRA was performed to focus on the integrity of the vertebral
arteries, particularly the left vertebral artery. Lutnick deviated and departed firom
accepted standards ofradiological care andpractice when he failed to characterize,
describe and report that the study was technically compromised rather than describing the
study as normal with normal vertebral arteries. The vertebral arteries were not
adequately visualized and little definitive comment could be made upon the status ofthe
vertebral arteries. Lutnick deviated and departed from accepted standards of
radiological care andpractice when he failed to tell Cappuccino andDean that the MRA
study was compromised and offered little definitive diagnostic information. Lutnick
deviated and departed from accepted standards ofradiological care and practice when he
failed to tell Dean and Cappuccino that a definitive evaluation ofthe vertebral artery was
warranted by arteriogram which was not available at Eastern Niagara Hospital but was
available at Gates Vascular Institute where Kausner should have been transferred as of
5:00 p.m. or so on September 2, 2015 when the results ofthe MRA were interpreted.
15 Lutnick's claims in his pretrial testimony that the MRA showed a flow void
in the arteries and that the arteries were fairly clean and smooth and that the vertebral
arteries were normal. Lutnick is wrong to say that because flow void does not rule out
arterial injury.
16. Lutnick believed that the spinal cord compression was significant and
claimed, in his pretrial testimony, that he does not use words to describe such
compression as severe, moderate or light. (Lutnick EBT, Exh. 1, p. 124) However, he
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should have used the word severe when discussing the degree of spinal cord compression
with Dean and Cappuccino and he failed to emphasize the severe nature ofthis
compression when he talked to Dean and Cappuccino. His statement that he would not
call the compression severe is, quite simply, a ridiculous statement to make.
17. In sum, the MRA was technically so compromised as to offer no
convincing diagnostic data with specific focus to the left vertebral artery. Despite the
obvious limitations in the examination, Lutnick wrongly opined, and deviated and
departed from accepted standards ofradiological care and practice, when he said "normal
carotid MRI with nonnal vertebral arteries. Specific lefit vertebral artery shows nonnal
caliber and no evidence of dissection or obstruction. " There is simply no foundation for
Lutnick's opinion in this regard. Again, Lutnick was obligated to infomi Dean and
Cappuccino that the MRA was inconclusive or basically worthless and if there was an
ongoing clinical concern an emergency transfer to Gates Vascular Institute should be
arranged for definitive angiogram.
18. The compression ofthe cord shown on September 2, 2015 indicates injury
to the cord. The pressure on the cord affected blood supply to the cord causing ischemia
and irreversible damage to the cord. One cannot wait until the last minute to do
something about such decompression, it is a surgical emergency. You do not wait to the
end of the window of opportunity to correct the effects of such compression.
19. As a radiologist, Lutnick was obligated to tell Dean and/or Cappuccino that
the compression of the cord was severe. His failure to do so constitutes a deviation and
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departure from accepted standards of radiological care and practice causing permanent
injury to Kausner.
20. Again, I must say that the MRA was nondiagnostic and ofpoor quality and
failed to include certain standard views. The MRA findings by Lutnick were simply not
correct. The left vertebral artery was not normal. The study was worthless. Lutnick's
claim that the mass seen did not communicate with the left vertebral artery and thus no
injury to the left vertebral artery is simply not a correct statement or conclusion. The
MRA did not provide that kind of information. (The MRA actually attempts to remove
structures from the views seen.)
21. Lutnick's conclusion that there was no injury to the left vertebral artery was
wrong because based upon an MRA that was worthless and offered no reliable diagnostic
information as to the status ofthe left vertebral artery.
MY REVIEW OF THE LUTNICK AFFIDAVIT
22. I have reviewed the Lutnick Affidavit (NYSCEF #21 9).
23. Notably, Lutnick admits, at paragraph 4, that he may recommend additional
studies if the studies were inadequate or showed a positive result that needed further
imaging. Sincethe MRA was inadequate, Lutnick should have recommended that an
arteriogram be done.
24. At paragraph 5, Lutnick's statement that the mass on the images was not
diagnostic ofblood in any form, acute or subacute or chronic is, quite simply, a ridiculous
statement. Lutnick acknowledges that there was Fibrillar present and filled with fluid
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and blood. Obviously, that meant that there had been a bleed and that there was blood
present.
25. At paragraph 8 ofLutnick's Affidavit, his statement that if he sees a normal
fat plane around an artery and no bleeding then that means no injury but that is not true.
Lutnick himself admitted that there could be a pseudoaneurysm present that the MRA
would not show Lutnick's claim, at paragraph 8, that the images do not show the
appearance ofa brand new aneurysm or hematoma, is simply wrong and misleading.
Obviously, the swollen Fibrillar contained blood which is evidence ofbleeding which
contradicts Lutnick's statements in this regard.
26. At paragraph 16 ofLutnick's Affidavit, Lutnick's claim that there was
nothing found that would require additional imaging studies is simply not true. The
MRA was not of good quality, Dr. Lutnick should have called what he was seeing a
vascular emergency, andrecommended a definitive angiogram. Contrary to Lutnick s
claims at paragraph 16 of his Affidavit, the studies that were performed did not
accurately demonstrate the condition ofthe anatomy in those areas.
27. Contrary to Lutnick's claim at paragraph 17 ofhis Affidavit, that the
studies as ordered were performed, they were not the proper studies and an angiogram
should have been ordered.
28. At paragraph 29 of Lutnick's Affidavit, Lutnick claims that Kausner's
various allegations of injury with respect to his deviations and departures from the
standard of care are groundless. This is not a true or correct statement. Contrary to
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Lutnick's claims, Kausner did suffer catastrophic cervical cord impairment, central cord
syndrome, ischemia to the spinal cord, compression ofthe spinal cord, longtenn and
permanent damage to the right arm and hand, weakness ofall extremities and impaired
mobility and ambulation, cervical myelopathy with cord compression at C5-6 from
surgical hematoma, and loss ofrange ofmotion ofright upper extremity. The Operative
Report by surgeon John Pollina, M. D. ofthe emergency surgery done at Buffalo General
at 7:00 p.m. or so on September 3, 2015, Exh. 5 hereto, reflects no movement in the left
and ri ht u er extremities and both lower extremities. Kausner had become
auadripleeic (paralyzed!). The Report also reflects no evidence of SSEP waveforms nor
did he have any motor evoked waveforms in his upper and lower extremities prior to the
procedure. Severe damage to the spinal cord hadtaken place as a result ofLutnick's
negligence, deviations and departures from standards ofradiologic care and practice.
The History andPhysical done at Buffalo General (Exh. 4 hereto), included the
assessment of severe anterior cord compression. The Consultation by Dr. Kuruvilla of
September 9, 2015, done at Buffalo General (Exh. 6 hereto), included evidence of injury
with references to "persistent weakness in both upper and lower extremities, especially
severe in the right shoulder, left grip... impaired mobility and ambulation."
"IMPRESSION: 1. Quadriparesis, incomplete. 2. Cervical myelopathy with cord
compression, especially at C5-6 from the surgical hematoma... 5. Impaired mobility
and ambulation secondary to the above... ". The ECMC Discharge Summary Report of
October 16, 2015 by Tat S. Fung, M.D. (Exh. 7 hereto) reflected "continued weakness of
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therightupper limb" further evidence ofinjury tothespinal cordcausedbyLutnick's
deviations.
29. Again, with respect to injury, the September 4, 2015 MRI ofthe spinal cord
in the areaofC5-6 demonstrated ischemia ofthe cord andfurther damageto the spinal
cordwhich hadtaken place since September 2, 2015 reflecting definitive injury to the
cord with permanent consequences.
30. Given ^11oftheforegoing, it ismy opinion, witha reasonable degree of
medical andradiological certainty, thatLutnick deviated anddeparted from accepted
standardsofradiological careandpracticeinmanyrespects asdetailedabove,allof
which caused injury to Kausner.
31. Finally, I should note the defendants Lutaick and Eastern Niagara
Radiology offernoopinionofanindependentexpertradiologistinsupportoftheir
Motion.
WHEREFORE, the Court should deny the Motion by Lutnick andEastern Niagara
Radiology for summary judgment in its entirety.
Affirmed underpenalties ofperjury pursuant to CPLR§2106this4thdayofApril,
2022.
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CERTIFICATIONAS TO WORD COUNT
I hereby certify, pursuant to Rule 202. 8-b ofthe Unifonn Civil Rules for the
Supreme Courtandthe County Court, thattheattachedAffidavitis 2, 891 wordsinlength
and complies with the word count requirement contained in Rule 202. 8-b(a).
Brian P Fitzger , sq.
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Preview
FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 STATE OF NEW YORK SUPREMECOURT : NIAGARA COUNTY THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife, Affirmation of Plaintiffs' Plaintiffs. Expert Radiologist V. in Opposition to Motion BUFFALO SPINE SURGERY, PLLC, for Summary Judgment by ANDREW CAPPUCCINO, M. D, Defendants Robert E. ERIC DEAN. RPA-C. Lutnick. M.D. and Eastern HARNATH B. CLERK, M. D, P. C, Niagara Radiology and HARNATH B. CLERK, M. D, Nuclear Medicine EASTERN NIAGARA HOSPITAL, INC., Associates, PC ROBERT E. LUTNICK, M. D, and EASTERN NIAGARA RADIOLOGY AND NUCLEAR MEDICINE ASSOCIATES, P. C., IndexNo. El 59518/2016 Defendants. I am a physician duly licensed to practice medicine in the State of New York. This Affirmation is affirmed under penalties of perjury pursuant to Rule 2106 of the CPLR. 1. This Affirmation is made on behalf of the plaintiffs in opposition to the Motion for summary judgment (NYSCEF #216) submitted by defendant Robert E. Lutnick, M. D. (hereinafter Lutnick) and his radiology group, Eastern Niagara Radiology and Nuclear Medicine Associates, P. C. (hereinafter Eastern Niagara Radiology). 2. All opinions expressed herein are expressed with a reasonable degree of 1 1 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 medical and radiological certainty. MY CREDENTIALS 3. My credentials are as follows: Undergraduate Degree from a major college in the City ofNew York, graduating in the top 5% of my class pre-med; attended medical school at a major university hospital, graduating in the top third ofmy class; completing a medical internship at a major state university hospital in a major northeastern city; completing a four year diagnostic radiology residency at a major university in a major northeastern city; and then practicing my specialty of radiology from 1976 to 2006 at one of the largest groups of private practice radiologists in a major metropolitan area. I am a Board Certified radiologist and full professor at a major northeastern university and a Diplomat ofthe American College ofRadiology and a Fellow ofthe American College of Radiology. Over the last several years, I have held the position of Professor of Clinical Imaging at a major northeastern university and have worked as an expert radiologist consultant. I have practiced diagnostic radiology for over 35 years. I have over three decades of clinical experience as a Board Certified practicing radiologist. MATERIALS REVIEWED 4. I have reviewed various materials in this case including the following: Eastern Niagara record, 9/1/15-9/3/15 (EBT Exhibit 18) (NYSCEF #235); Eastern Niagara's MM, 9/2/15; Eastern Niagara's MRA, 9/2/15; Buffalo General's Cerebral angiogram, 9/3/15; Buffalo General's Cerebral angiogram, 9/4/15, stenting of left vertebral artery; 2 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 Buffalo General's MRI cervical spine, 9/4/15, Buffalo General's MRI brain, 9/4/15; Buffalo General's Cerebral angiogram, 9/8/15; ECMC's MRI cervical spine, 9/20/15; ECMC's MRI brain, 9/20/15; Robert Lutnick, M. D. deposition transcript; Andrew Cappuccino's Operative Report, 9/1/15; Eastern Niagara Hospital's Discharge Summary; John Pollina, M. D. 's Operative Report, 9/3/15 (Exh. 5 hereto); Affidavit ofRobert E. Lutnick, M. D. submitted in support of defendant Lutnick's and Eastern Niagara Radiology's Motion for Summary Judgment (NYSCEF #219); Buffalo General Hospital's History and Physical, 9/3/15 (Exh. 4 hereto); Philip T. Kumvilla, M.D. Consult Report, 9/9/15 (Exh. 6 hereto); Erie County Medical Center's Discharge Summary Report, 10/16/15 (Exh. 7 hereto). 5. I affirm and opine without equivocation that Lutnick departed from accepted standards ofradiological careandpractice, deviated from accepted standards of care, acted negligently, and that such deviations, departures, and negligence caused injury to Thomas Kausner (hereinaflter Kausner). 6. On the morning of September 2, 2015, an MRI ("for evaluation ofright arm weakness") and MRA was ordered. The MRI study was performed that afitemoon from 2:36 p.m. to 2:52 p.m. After looking at the MRJ, Lutnick testified that he had never seen a mass before like the mass seen at C5-6 compressing the spinal cord. So he spoke with defendant Eric Dean, RPA-C (hereinafter Dean) who came down to radiology at approximately 3:00 p.m. According to Lutnick, Deantold him that the mass was Fibrillar, a mesh-like material whichwas used during Kausner's surgery to control bleeding the day before. 3 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 7. According to the report ofMR[ of September 2, 2015 which Lutnick authored (not transcribed until 10:45 p. m. ), he noted that "the possibility of disc protrusion with or without adjacent hemorrhage must be considered in the differential". (See Exhibit 1 hereto, the MRI Report of 9/2/15 by Lutnick) I opine that the mass was "huge" extending from C5 to C7 and severely compressing the cord. It was 4. 5 cm in the vertical plane and 1. 5 cm in the anterior posterior plane. This was a medical and surgical emergency. (See Exhibit 1, MRI image SE 2/7, Image 7/1 1) 8. According to Lutnick, he recommended an MRA be done to assess whether there was an injury to the vertebral artery. The Eastern Niagara record reflects a phone order for an MRA by Andrew Cappuccino, M. D. (hereinafter Cappuccino) at 3:35 p. m. (NYSCEF #235, p. 70) 9. The MRA was perfonned from 4:08 p. m. to 4:31 p. m. According to Lutnick, he spoke with Dean and/or Cappuccino at around 5:00 p. m. He told them that the MRA did not show any injury to the vertebral artery. His report ofthis MRA indicates "normal vertebral arteries specific left vertebral artery shows normal caliber and no evidence of dissection or obstruction. " (Exh. 1) According to the Requisition Form for the MRA, radiology tech Rachel Napoleon (hereinafter Napoleon) noted patient history of"weakness R and L upper extremities S/P cervical Sy". (Exh. 3) I have been informed by plaintiffs' counsel that she also testified that she had to take a verbal consent to the MRA from Kausner because he was unable to sign the consent form with either hand. 4 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 10. Cheryl Kausner spoke with Cappuccino several days later on September 5, 2015, andCappuccino told herwhatLutnicktold him aboutthe MRI andMRA. (Exh. 2, transcript ofCappuccino/Cheryl Kausner phone call of September 5, 2015) Cappuccino told herthat "There was little bit ofwhatthey felt wasthe packing, he [Lutnick] didn't feel like it was a hematoma, at least atthatpoint. And I askedhim as you did and questioned him they saidwell this is a little bit, a little bit more discoloration, pressure onthe left sidethatI would like to seebuthe saidit doesn't look like something that's expanding so I said okay I'll see howhe does overnight... ". (Exh. 2, p.4) MY REVIEW OF THE SEPTEMBER 2 2015 MRI 11. I have reviewed the MRI ofthe cervical spine of September 2, 2015 which demonstrates a large mass extending posteriorly involving the levels at C5 and C6. This MRJ demonstrates post-surgical hematoma anteriorly. This MR! demonstrates extensive com romise ofthe s inal canal with a large compressive extradural defect located midline and to the left at C5-C6 with extension into the neural foramen. This MRI shows that there are extensive compression forces on the spinal cord with findings consistent with just minimal myelomalacia at that time (early evidence of damage to the cord). This MRI demonstrates postsurgical bleeding noted from the level of C3-C7 posterior to thevertebral bodies andanteriorto theposterior spinal ligament. There are compressive changeswhicharemajor andare located at C5-C6. TheMRI is deficient in that C6 and C7 were only partially visualized. Further evaluation of C6 and C7 was advisable via CAT scan. 5 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 12. As the result ofLutnick's deviations and departures from accepted standards of radiological care and practice, there was a delay in Kausner's transfer to Gates Vascular Institute for definitive treatment from approximately 3:00 p. m. on September 2, 2015 to 12:34 p. m. on September 3, 2015, a delay of 21. 5 hours. During this time there was untreated severe cord compression and worsening damage to the cord which can be seen in the MRI of September 4, 2015 later done at Buffalo General which I reviewed and compared to the MRI of September 2, 2015. The damage to the cord seen on the MRI of September 4, 2015 was more extensive that that seen on the MRI of September 2, 2015. 13. This damage and injury to the cord could and should have been avoided had Kausner been transferred to Gates Vascular Institute on September 2, 2015 at 3:00 p.m. so that a definitive angiogram asto vertebral artery injury could have been done. This type ofangiogram wasnot available at Eastern NiagaraHospital andLutnick knew that. Once at Gates, the vertebral artery injury could have been diagnosed and repaired and then surgery promptly done to relieve the severe compression on the cord. Lutnick's deviations and departures from accepted standards ofradiological care andpractice caused this delay and further injury to the spinal cord. Lutnick also admitted in his pretrial testimony that MRA is not as good as a tme angiogram. MY REVIEWOF THE SEPTEMBER2 2015 MRA 14. I have reviewed the MRA of September 2, 2015. Contrary to Lutnick' s Affidavit (NYSCEF #219), the MRA was simply non-diagnostic and had significant 6 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 technical limitations. The MRA was performed to focus on the integrity of the vertebral arteries, particularly the left vertebral artery. Lutnick deviated and departed firom accepted standards ofradiological care andpractice when he failed to characterize, describe and report that the study was technically compromised rather than describing the study as normal with normal vertebral arteries. The vertebral arteries were not adequately visualized and little definitive comment could be made upon the status ofthe vertebral arteries. Lutnick deviated and departed from accepted standards of radiological care andpractice when he failed to tell Cappuccino andDean that the MRA study was compromised and offered little definitive diagnostic information. Lutnick deviated and departed from accepted standards ofradiological care and practice when he failed to tell Dean and Cappuccino that a definitive evaluation ofthe vertebral artery was warranted by arteriogram which was not available at Eastern Niagara Hospital but was available at Gates Vascular Institute where Kausner should have been transferred as of 5:00 p.m. or so on September 2, 2015 when the results ofthe MRA were interpreted. 15 Lutnick's claims in his pretrial testimony that the MRA showed a flow void in the arteries and that the arteries were fairly clean and smooth and that the vertebral arteries were normal. Lutnick is wrong to say that because flow void does not rule out arterial injury. 16. Lutnick believed that the spinal cord compression was significant and claimed, in his pretrial testimony, that he does not use words to describe such compression as severe, moderate or light. (Lutnick EBT, Exh. 1, p. 124) However, he 7 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 should have used the word severe when discussing the degree of spinal cord compression with Dean and Cappuccino and he failed to emphasize the severe nature ofthis compression when he talked to Dean and Cappuccino. His statement that he would not call the compression severe is, quite simply, a ridiculous statement to make. 17. In sum, the MRA was technically so compromised as to offer no convincing diagnostic data with specific focus to the left vertebral artery. Despite the obvious limitations in the examination, Lutnick wrongly opined, and deviated and departed from accepted standards ofradiological care and practice, when he said "normal carotid MRI with nonnal vertebral arteries. Specific lefit vertebral artery shows nonnal caliber and no evidence of dissection or obstruction. " There is simply no foundation for Lutnick's opinion in this regard. Again, Lutnick was obligated to infomi Dean and Cappuccino that the MRA was inconclusive or basically worthless and if there was an ongoing clinical concern an emergency transfer to Gates Vascular Institute should be arranged for definitive angiogram. 18. The compression ofthe cord shown on September 2, 2015 indicates injury to the cord. The pressure on the cord affected blood supply to the cord causing ischemia and irreversible damage to the cord. One cannot wait until the last minute to do something about such decompression, it is a surgical emergency. You do not wait to the end of the window of opportunity to correct the effects of such compression. 19. As a radiologist, Lutnick was obligated to tell Dean and/or Cappuccino that the compression of the cord was severe. His failure to do so constitutes a deviation and 8 8 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 departure from accepted standards of radiological care and practice causing permanent injury to Kausner. 20. Again, I must say that the MRA was nondiagnostic and ofpoor quality and failed to include certain standard views. The MRA findings by Lutnick were simply not correct. The left vertebral artery was not normal. The study was worthless. Lutnick's claim that the mass seen did not communicate with the left vertebral artery and thus no injury to the left vertebral artery is simply not a correct statement or conclusion. The MRA did not provide that kind of information. (The MRA actually attempts to remove structures from the views seen.) 21. Lutnick's conclusion that there was no injury to the left vertebral artery was wrong because based upon an MRA that was worthless and offered no reliable diagnostic information as to the status ofthe left vertebral artery. MY REVIEW OF THE LUTNICK AFFIDAVIT 22. I have reviewed the Lutnick Affidavit (NYSCEF #21 9). 23. Notably, Lutnick admits, at paragraph 4, that he may recommend additional studies if the studies were inadequate or showed a positive result that needed further imaging. Sincethe MRA was inadequate, Lutnick should have recommended that an arteriogram be done. 24. At paragraph 5, Lutnick's statement that the mass on the images was not diagnostic ofblood in any form, acute or subacute or chronic is, quite simply, a ridiculous statement. Lutnick acknowledges that there was Fibrillar present and filled with fluid 9 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 and blood. Obviously, that meant that there had been a bleed and that there was blood present. 25. At paragraph 8 ofLutnick's Affidavit, his statement that if he sees a normal fat plane around an artery and no bleeding then that means no injury but that is not true. Lutnick himself admitted that there could be a pseudoaneurysm present that the MRA would not show Lutnick's claim, at paragraph 8, that the images do not show the appearance ofa brand new aneurysm or hematoma, is simply wrong and misleading. Obviously, the swollen Fibrillar contained blood which is evidence ofbleeding which contradicts Lutnick's statements in this regard. 26. At paragraph 16 ofLutnick's Affidavit, Lutnick's claim that there was nothing found that would require additional imaging studies is simply not true. The MRA was not of good quality, Dr. Lutnick should have called what he was seeing a vascular emergency, andrecommended a definitive angiogram. Contrary to Lutnick s claims at paragraph 16 of his Affidavit, the studies that were performed did not accurately demonstrate the condition ofthe anatomy in those areas. 27. Contrary to Lutnick's claim at paragraph 17 ofhis Affidavit, that the studies as ordered were performed, they were not the proper studies and an angiogram should have been ordered. 28. At paragraph 29 of Lutnick's Affidavit, Lutnick claims that Kausner's various allegations of injury with respect to his deviations and departures from the standard of care are groundless. This is not a true or correct statement. Contrary to 10 10 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 Lutnick's claims, Kausner did suffer catastrophic cervical cord impairment, central cord syndrome, ischemia to the spinal cord, compression ofthe spinal cord, longtenn and permanent damage to the right arm and hand, weakness ofall extremities and impaired mobility and ambulation, cervical myelopathy with cord compression at C5-6 from surgical hematoma, and loss ofrange ofmotion ofright upper extremity. The Operative Report by surgeon John Pollina, M. D. ofthe emergency surgery done at Buffalo General at 7:00 p.m. or so on September 3, 2015, Exh. 5 hereto, reflects no movement in the left and ri ht u er extremities and both lower extremities. Kausner had become auadripleeic (paralyzed!). The Report also reflects no evidence of SSEP waveforms nor did he have any motor evoked waveforms in his upper and lower extremities prior to the procedure. Severe damage to the spinal cord hadtaken place as a result ofLutnick's negligence, deviations and departures from standards ofradiologic care and practice. The History andPhysical done at Buffalo General (Exh. 4 hereto), included the assessment of severe anterior cord compression. The Consultation by Dr. Kuruvilla of September 9, 2015, done at Buffalo General (Exh. 6 hereto), included evidence of injury with references to "persistent weakness in both upper and lower extremities, especially severe in the right shoulder, left grip... impaired mobility and ambulation." "IMPRESSION: 1. Quadriparesis, incomplete. 2. Cervical myelopathy with cord compression, especially at C5-6 from the surgical hematoma... 5. Impaired mobility and ambulation secondary to the above... ". The ECMC Discharge Summary Report of October 16, 2015 by Tat S. Fung, M.D. (Exh. 7 hereto) reflected "continued weakness of 11 11 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 therightupper limb" further evidence ofinjury tothespinal cordcausedbyLutnick's deviations. 29. Again, with respect to injury, the September 4, 2015 MRI ofthe spinal cord in the areaofC5-6 demonstrated ischemia ofthe cord andfurther damageto the spinal cordwhich hadtaken place since September 2, 2015 reflecting definitive injury to the cord with permanent consequences. 30. Given ^11oftheforegoing, it ismy opinion, witha reasonable degree of medical andradiological certainty, thatLutnick deviated anddeparted from accepted standardsofradiological careandpracticeinmanyrespects asdetailedabove,allof which caused injury to Kausner. 31. Finally, I should note the defendants Lutaick and Eastern Niagara Radiology offernoopinionofanindependentexpertradiologistinsupportoftheir Motion. WHEREFORE, the Court should deny the Motion by Lutnick andEastern Niagara Radiology for summary judgment in its entirety. Affirmed underpenalties ofperjury pursuant to CPLR§2106this4thdayofApril, 2022. 12 12 of 13 FILED: NIAGARA COUNTY CLERK 04/04/2022 03:52 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 04/04/2022 CERTIFICATIONAS TO WORD COUNT I hereby certify, pursuant to Rule 202. 8-b ofthe Unifonn Civil Rules for the Supreme Courtandthe County Court, thattheattachedAffidavitis 2, 891 wordsinlength and complies with the word count requirement contained in Rule 202. 8-b(a). Brian P Fitzger , sq. 13 13 of 13