Preview
FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK Motion Returnable:
-x February 20, 2024
PAUL BERTRAM,
AFFIRMATION IN
Plaintiffs, OPPOSITION TO
-against- PLAINTIFF’S POST
TRIAL MOTION
TSAI-LUNQ TSAI and ORANGE REGIONAL
MEDICAL CENTER,
Index No.: 602919/ 19
Defendants.
x
DOUGLAS P. PERRY, being duly sworn, deposes and states:
1. That I am a member of PERRY, VAN E’VI’EN, ROZANSKI &
KUTNER, LLP, attorneys for Defendant Tsai-Lung Tsai, M.D. As such, and
from both a review of this file maintained in my offices as well as having been
the Trial attorney on this matter, I am fully familiar with the facts and
circumstances surrounding this action. This case was tried before this
Honorable Court on two separate occasions with the first Trial having ended
in a deadlocked Jury followed by the Court declaring a mistrial on February
16, 2023 and thereafter setting the case down for a re-Trial resulting in a
unanimous Jury verdict in favor of the Defendant Tsai-Lung Tsai on
November 1, 2023 following approximately 2 hours of deliberations.
2. This affirmation is submitted in opposition to Plaintiffs motion for
relief under CPLR Section 4404. While I am tempted to “stand on the record”
from the Trial and unanimous Jury verdict, please accept the following in
opposition to the arguments set forth in the papers submitted on behalf of the
Plaintiff Paul Bertram.
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BRIEF STATEMENT OF FACTS
3. This lawsuit involves allegations of medical malpractice
surrounding a purported delay in the performance of surgery for a crush
injury to Paul Bertram’s left index finger which ultimately led to the surgery
performed by Dr. Tsai-Lung Tsai during the early evening of June 4, 2018.
The injury itself occurred while Paul Bertram was attempting to move a large
rock/boulder in his yard on the afternoon-early evening of Sunday June 3,
2018 whereupon he and his then girlfriend drove to the Emergency Room of
Eon Secour Community Hospital in Port Jervis, New York. Later that same
evening, after hospital personnel consulted with Dr. Tsai by phone, Paul
Bertram was transferred to the Orange Regional Medical Center in
Middletown, New York where Dr. Tsai maintained his surgical privileges. This
transfer occurred at approximately 11:00 p.m. on June 3, 2 018 with surgery
having been performed by Dr. Tsai at approximately 7:30 p.m. on June 4,
2018. Dr. Tsai’s procedure consisted of open washout of the proximal phalanx
of the left index finger; deep tissue debridement; repair of a comminuted
fracture and bone debridement with percutaneous pinning of the left index
finger; and, complex wound repair. Plaintiff alleged that it was a deviation
from the standard of care by Dr. Tsai to delay surgery beyond 12:00 noon on
June 4, 2018, because of which it was claimed that Paul Bertram suffered
from full thickness skin loss and exposure of his tendon with the alleged
injury having demonstrated itself when Paul Bertram returned to Dr. Tsai’s
offices on June 26, 2018. Dr. Tsai’s office records confirm that wound
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dehiscence had occurred and it was explained to Mr. Bertram and his sister
that he would need a washout and flap closure to cover the wound. Paul
Bertram, who was accompanied by his sister to that visit, refused any further
treatment by Dr. Tsai and immediately transferred his care to Dr. Francis
Winski, a plastic surgeon who subsequently became Paul Bertram’s treating
physician and who likewise testified as an expert on behalf of the Plaintiff. Dr.
Winski undertook to perform a wide excisional debridement of the open
wound and Integra placement at the wound site including a split-thickness
skin graft to the left index finger. Mr. Bertram was thereafter left with
significant scarring and both a flexion and contracture deformity in his
injured finger. Dr. Winski undertook to perform multiple surgical procedures
with virtually no success whatsoever in terms of resolving Paul Bertram’s left
index finger deformity.
STANDARD OF REVIEW
4. A Motion for Judgment as a matter of law pursuant to CPLR §4404
may be granted only when, in the first instance, the Court concludes that
there is “no rational process by which the Jury could find in favor of the
prevailing party”, Sczerbiak v. Pilat, 90 N.Y.2d 553 (1997); Broadie v. St.
Francis Hospital, 25 A.D.3d 745 (2nd Dept. 2006); Tapia v. Dattco, Inc., 32
A.D.3d 842 (2nd Dept. 2006); Hand v. Field, 15 A.D.3d 542 (2nd Dept. 2005),
and that Judgment notwithstanding the verdict may not be granted unless
“no valid line of reasoning and permissible inferences could possibly lead
rational people to the conclusion reached by the Jury”. In the Court’s
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analysis, the evidence “must be viewed in a light most favorable to the
ii prevailing party,” Hammond v. Diaz, 802 A.D.3d 839 (2nd Dept. 2011); Hand,
supra; and, the prevailing party must be given “every favorable inference that
can be drawn from the evidence”. Fellin v. Sahgg, 35 A.D.3d 800 (2nd Dept.
2006). Similarly, when considering whether a Jury’s verdict is against the
weight of the credible evidence, the standard to be applied is that the Court
may not act unless “the verdict could not have been reached on any fair
interpretation of the evidence,” Tapia, supra; Nicastro v. Park, 113 A.D.2d
129. Where the verdict can be reconciled with a reasonable review of the
evidence, the successful party is entitled to the presumption that the Jury
adopted that view. Torres v. Esaian, 5 A.D.3d 670 (2nd Dept. 2004).
5. Where, as here, both the Plaintiff and the Defendant presented
expert testimony in support of their respective positions, it was the province of
H the Juzy to determine the expert’s credibility.” Qiammarino v. Carlos, 144
A,D.3d 1086 (2nd Dept. 2016).
6. The Jury Verdict sheet contained two questions as follows: (1) Did
I Defendant Tsai-Lung Tsai depart from accepted practices in failing to perform
a washout of the injury to Paul Bertram’s left hand prior to 12:00 pm. on
June 4, 2018; and, (2) Did Defendant Tsai-Lung Tsai depart from accepted
medical practices by failing to timely reduce the fracture fragments and
angulation of Paul Bertram’s left hand prior to 12:00 p.m. on June 4, 2018?
Each of these questions was followed by an inquiry as to whether such
departure (if answered in the affirmative) was a substantial factor in causing
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injury to Paul Bertram. Each of the “Departure” questions were unanimously
answered in favor of the Defendant Tsai-Lung Tsai, M.D. and of course the
Jury never reached the issue of causation.
THE COURT SHOULD SUSTAIN THE VERDICT ON BEHALF
OF TSAI-LUNG TSAI. M.D.
7. This Honorable Court should not lose sight of the fact that the
treatment involved in this case commenced shortly following Paul Bertram’s
presentation to Bon Secour Hospital with a significant deformity to his left
index finger resulting from a crush injury. It was agreed by the experts that a
crush injury results in damage to tissue, skin and blood vessels with tissue
necrosis being one of the later manifestations of a crush injury. (Winski T.
p.646) As testified to by Dr. Tsai, a crush injury means the soft tissue of the
hand (finger) is compressed between two hard surfaces. (Tsai T. pgs. 117, 118)
The defense posture as set forth by both Dr. Tsai and Dr. Dagly consisted of
the undisputed fact that Paul Bertram sustained a significant injury from the
outset. It caused damage to skin, tissue and blood vessels with the skin and
H
tissue “declaring itself’ at or about the time of Paul Bertram’s last office visit
to Dr. Tsai on June 26, 2018. In this regard, the Jury was presented with
overwhelming evidence to support their unanimous verdict on liability.
I Furthermore, the testimony was unrefuted in that the initial injury was
devastating in nature. The Jury was well within their province to conclude
that the timing of surgery; whether it be a washout or reduction of the
fracture fragments, was meaningless in terms of the ultimate outcome
regarding the claimed injuries.
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8. In discussing how he first learned of the fact that Paul Bertram
was in the Emergency Room of Son Secour Hospital, Dr. Tsai testified to
having received a page from Bon Secour Hospital requesting that he call. (T.
p.115) This occurred at approximately 9:30-10:00 p.m. on Sunday evening
June 3, 2018. Upon speaking with the Emergency Room physician at Bon
Secour Hospital, Dr. Tsai was told that Paul Bertram sustained a “crush”
injury to the left index finger and that he (Bertram) presented with mud and a
contaminated, dirty wound. The Emergency Room physician at Son Secour
Hospital was seeking guidance from Dr. Tsai (T. p.1 17). Upon reviewing the
x-rays, Dr. Tsai confirmed that Paul Bertram had an open, displaced fracture
of the proximal phalanx of his left index finger. During the Trial, Dr. Tsai
testified that a crush injury involves the soft tissue of the hand (finger) and
results from it being compressed between two hard surfaces. In this case, the
boulder crushed Paul Bertram’s finger between two hard surfaces whereby the
fingers on the hand were sandwiched between the boulder and another hard
surface. (T. p. 117) Dr. Tsai appropriately advised the Emergency Room
physician at Bon Secour Hospital to wash out the wound.
“So, I told him that this type of injury, the most important
thing, the most critical thing is immediately washout and
place the patient on antibiotics.” (T. p.118)
Continuing, Dr. Tsai testified that he told the ER physician that:
“Based upon the literature, study and experience, that the
most important thing is to wash out, so do as much as you
can and washout as good as you can and put the patient
on antibiotics and that’s the most important thing to
minimizing the nature of the injury.” (T. p.119)
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All of the experts concurred with Dr. Tsai’s testimony that Ancef, a
broad-spectrum antibiotic, is the first line drug of choice. At the same time,
Dr. Tsai testified to the following:
“I told him that by washing out and put him on antibiotics you decrease
the urgency to do—the emergency of surgery. So, I told him that by washing
out and giving antibiotics, I can take into surgery the next day.” (T. p.120.)
9. Dr. Tsai was asked opinions as to the treatment which he provided
to Paul Bertram including pointed inquiry as to the timing of the surgery
which he performed. Specifically, at page at page 143 of the attached Trail
transcript, Dr. Tsai testified that he ‘debrided devitalized tissue’ during his
surgery and went on to explain that he removed tissue which did not look
healthy enough as a result of the crush injury and went on to explain that “I
cut it to remove all the questionable unhealthy soft tissue.” When questioned
as to the cause of the damage to the tissue, Dr. Tsai explained that it was
from the crush of the boulder. (T. p.147).
10. Postoperatively, Paul Bertram made his final office visit to Dr.
Tsai on June 26, 2018 at which time he observed full thickness skin loss and
an exposed tendon on the injured finger. Dr. Tsai testified that the wound
‘opened up’ (dehisced) and the tendon was exposed. When asked his expert
opinion as to the cause of this injury, Dr. Tsai testified as follows:
“My opinion is that the injury was due to the crush of the
boulder” (T. p160) “The injury damaged, the boulder
damaged the soft tissue, the skin and gradually the skin
declared itself and became eventually devitalized and
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opened it up.” (T. p.160)
11. In response to further inquiry by counsel, Dr. Tsai rendered his
expert opinion that the timing of the surgery was not the cause of the wound
dehiscing. (T pgs.160, 161)
12. Kamal Dagly, M.D., a Board Certified Hand Surgeon and
Orthopedist testified in support of the treatment rendered by Dr. Tsai. During
I r
his direct testimony, Kamal Dagly, M.D., was asked the following question:
“In your opinion Dr. Dagly, was the failure to reduce the
fracture until between 7:30 p.m. and 9:30 p.m. on June 4,
2018, a deviation from the standard of care by Dr. Tsai?”.
(T. p.225)
Dr. Dagly definitively answered “No” to that question and when asked the
basis of his opinion, testified as follows:
“The basis of that opinion is that fractures can be dealt
with, you know, varying amounts of time. It just depends
upon the situation, but the fracture such as this one, you
know, you try to get it done as soon as you can but it can
be done, you know immediately or it can be done within
like two weeks.” (T. p.225)
Continuing his testimony, Dr. Dagly said the following:
“Because he had an open wound, you want to try and get it
sooner rather than later, but you know, 24 hours is a very
reasonable time frame to get to it. You know, with one thing
that you supposed to do in open fractures like this is to give
antibiotics and the timing of those antibiotics is sort of
important to prevent things like infection which I don’t
think. I don’t think there was any infection documented
here.”
(T. p.225)
13. To expand upon the opinions of Dr. Dagly, this Honorable Court
inquired as follows:
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COURT: “You mentioned 24 hours being a very reasonable
time frame. Are you referencing 24 hours from the time of
the injury? 24 hours from the time that the patient gets to
the hospital or something else?”
DAGLY: “Approximately within 24 hours or so. It is not
an absolute number. It is not pubLished anywhere that a
physician must get to it with one hour or six hours. I’m not
aware of any studies saying certain amount of time. Based
upon the case, I think that is a reasonable amount of time
to get the fractured pinned and taken care of whereas I
know many cases like this it takes even longer to get to.”
COURT: “Let’s assume the injury occurred at approximately
6:30 p.m. on June 3 and presented to Bon Secour at
approximately 7:50 p.m. and then surgery is ultimately done
between 7:30 and 9:00 p.m. the following day so 25, 26 hours. In
your opinion was that acceptable doctor?”
DAGLY: Yes
The Court: Was it a deviation by Dr. Tsai to not have performed
it sooner?
Dr. Dagly: “No.” (T. p.228)
14. Thereafter, Dr. Dagly was specifically asked whether it was
deviation from the standard of care to do a washout under anesthesia
between 7:30 to 9:00 p.m. on June 4th? Dr. Dagly answered that question in
the negative and at the same time, gave the basis of his opinion:
“The basis is that he got the antibiotics in the emergency
room, the wound was cleansed once or twice before he got
to the operating room and then, it was done again in the
operating room.” (T. p.230)
15. Thereafter Dr. Dagli was specifically asked whether a washout
was timely performed by Dr. Tsai? In response to this inquiry Dr. Dagly
answered that indeed the washout was timely and set forth the basis of his
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opinion. ft pgs230, 231). Immediately following, Dr Dagly gave his opinions
as to the cause of the full thickness skin loss and at page 231 he was asked
the following
“Doctor, do you have an opinion as to the cause of the full
thickness skin loss resulting in the exposed tendon which
was found by Dr. Tsai on June 26, 2018?” ft. p.232)
16. Dr. Dagli’s answer follows on that same page when he testified
that the cause of the injuries claimed in this case resulted from the
devastating nature of the crush injury from the boulder falling on Paul
Bertram’s hand:
“The skin has a blood supply. Every organ in the body has
a blood supply to it. The skin and the integumentary
system or skin system is the largest. People don’t realize,
but it’s the largest organ in the body. It has the biggest
surface area. Skin in all areas has a blood supply to it. It’s
sort of why we kind of shift around in our chairs because
when you’re sitting in one spot for long time is
uncomfortable in that area so when you have a crush
injury, if enough energy from the crush damages that blood
supply, then the skin can die in that area”. (T. p.232)
17. Dr. Dagly was then asked whether the washout performed by
Dr. Tsai in the Operating Room at Orange Regional Medical Center was done
in timely fashion. In response to this inquiry Dr. Dagly answered “Yes” and
explained that his opinion was based on experience and training and looking
at the injury; ‘at the big picture.” (T. p.234) Dr. Dagly thereafter explained how
skin breaks down from an injury such as the one Mr. Bertram sustained at
the time the boulder crushed his finger:
“Sure. As I mentioned before, when a crush injury
happens in that area of, like, maximal impact, the
blood supply to the skin can become compromised so
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the skin is like one of those structures where it
doesn’t immediately show you. It may not
immediately show you that is going to live or it’s
going to die or it’s going to recover. You don’t know
for some amount of time because if there is no blood
flow to that area, it’s slowly sort of becomes darker in
color or changes color or dries out. Then eventually,
it’ll sort of declare itself and it either makes it or it
doesn’t.”
“In many injuries, we don’t know for some time
after a crush whether a certain portion of the skin is
going to make it or not. It has to do with the
compromised blood supply to that area from the
damage of the injury and that can did I answer your
—
question?” (T. pgs. 235, 236)
18. Dr. Dagly explained that in this case, the skin ‘declared
itself when it opened-up and the tendon was exposed. (T. p.237)
19. When Dr. Tsai was questioned regarding his opinion as to
the cause of the wound dehiscence which was found at the very last office
visit, he testified in identical fashion by stating that “the injury is due to the
crush from the boulder. The damage that was caused at the time of the
boulder crush.” (T. p. 160) Dr. Tsai went on to explain that the boulder
damaged the soft tissue, the skin and gradually, the skin declared itself and
became devitalized and opened-up. (T. p.160) In utilizing the term “opened
up” Dr. Tsai meant that this was the time when the wound was found to have
dehisced at the time of the very last office visit. Finally, Dr. Tsai rendered the
opinion that “timing of the surgery” did not cause the wound to dehisce. (T.
pgs.160, 161)
20. Plaintiff argues that Defendant Tsai failed to timely perform
both a washout and reduction of the fracture fragments; each of which
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independently or in conjunction with one another resulted in breakdown of
the skin. This argument is clearly refuted by the testimony of both Dr.
Tsai-Lung Tsai and Dr. Kamal Dagly who rendered their opinions that the
injuries in this case; that being full thickness skin loss resulting in exposure
of the tendon, was a product of the initial crush injury and concomitantly had
nothing to do with the timing of surgery. It was well within the province of the
Jury to accept the well-reasoned opinions of both Dr. Tsai and Dr. Kamal
Dagly especially given the facts of this case where the treatment at issue was
preceded by a significant and rather devastating crush injury to Paul
Bertram’s left index finger. At the same time, the Jury was in their province to
completely reject the testimony of Plaintiffs expert and treating plastic
surgeon Francis Winski, M.D. who proved himself to be of highly questionable
ability when it comes to surgery of the hand. In fact, the Jury could have
readily concluded that it was Winski’s treatment which led to the claimed
damages in this case in that his years of substandard treatment left Paul
Bertram with his current disability and that his testimony was designed to
place the blame on Dr. Tsai for what the Jury could well have found was the
result of poor treatment by Dr. Winski himself.
21. Dr. Winski confessed that a crush injury alone can and does
result in damage to the integrity of the skin (T. p.620) and that it can have the
ability to likewise affect the blood supply that feeds the skin. (T. p’62 1) Dr.
Winski agreed that if indeed the blood supply to the skin is compromised for
whatever reason, the skin can become necrotic. (T. p.621). He further agreed
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that with injuries such as the one sustained by Paul Bertram, it can take time
for the skin to declare itself in terms of whether the skin is going to survive.
(T. p.621) Winski readily acknowledged that in as little as 20 minutes,
pressure can begin to compromise the skin following an injury thereby leading
to the inevitable conclusion by the Jury that the damage claimed by Plaintiff
was complete and irreversible well before Paul Bertram was transferred to
Orange Regional Medical Center. (T. p.624)
22. In this case which, according to Dr. Winski, involved the
I timeliness of reducing fracture fragments, he confessed to having never
reviewed even one x-ray. (T.p.637,638) while at the same time acknowledging
that x-rays are specifically designed to evaluate bony structure. It is worth
mentioning that during Dr. Winski’s more than 3 years of treatment of Paul
I Bertram’s injured finger that he never took as much as one x-ray. The Jury in
P this case had every right to reject Dr. Winski’s testimony in its entirety and to
view it as self-serving and designed to explain away his treatment which Dr.
Dagly viewed as below acceptable standards.
23. Plaintiff cites the case of Nichols v. Stammer, N.Y.S.2d 220; 49
A.D.3d 832 to argue that there was no rational basis by which the Jury could
have found in favor of Dr. Tsai and against the Plaintiff, Paul Bertram. In fact,
Nichols stands for the proposition that the Court may only grant a CPLR 4401
motion only if there was no rational basis by which the Jury could have found
for Dr. Tsai against the moving Plaintiff.
24. In the instant case, there were multiple reasons why the Jury
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could have readily found for Dr. Tsai regardless of when surgery was
performed. There was ample testimony to support the Defendant’s contention
that surgery was timely performed by Dr. Tsai including both the washout
and the pinning. At the same time, the Jury could very well have decided that
the initial injury itself was so damaging such that it caused the injuries
claimed by the Plaintiff including full thickness skin loss on the palmar
surface of Plaintiff’s index finger. In fact, upon questioning by Plaintiff’s
counsel, Dr. Dagly reaffirmed his opinion when he testified that the initial
trauma from the boulder on the evening of June 3rd caused the tissue on the
finger to necrose roughly two-and-a-half weeks later. (T. p.279) From the
perspective of the Jury, this opinion by Dr. Dagly would render the timing of
the surgery meaningless on all fronts. Both Dr. Dagly and Dr. Tsai testified to
i the fact that the injury alone caused disruption of soft tissue by the nature of
it being labded a “crush injury.” As such, the vasculature supplying the skin
became disrupted and as clearly stated by both Dr. Dagly and Dr. Tsai, it
takes time for the skin/tissue to declare itself and when it did in this case, it
resulted in dehiscence of the wound and loss of soft tissue; the precise
injuries which Plaintiff alleges was caused by deviations from the standard of
care by Dr. Tsai. The Jury was well within its province to decide that Dr. Tsai
did not deviate from the standard of care in either the timeliness of the
washout or the pinning or reduction of fracture fragments.
WHEREFORE, it is respectfully requested that Plaintiff’s Motion seeking
to set aside the Jury’s verdict which was returned in favor of Defendant
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Tsai-Lung Tsai on November 1, 2023 and directing that Judgment be entered
in favor of Plaintiff or in the alternative, granting a new Trial pursuant to
CPLR §4404(a) based on the ground that the Jury verdict was contrary to the
weight of the credible evidence and in error as a matter of law, be denied in its
entirety and that Judgment be entered in favor of the Defendant Tsai-Lung
Tsai based upon the unanimous Jury verdict.
Dated: Melville, New York
February 6, 2024
Respectfully submitted,
PERRY, VAN EYI’EN,
ROZANSKI & KUTNER, LLP
Attorneys for Defendant
TSAI-LUNQ TSAI, M.D.
225 Broadhollow Ri 430
Melville, New
(631) 4 14-79.
By:
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STATE OF NEW YORK I
COUNTY OF SUFFOLK)
CARRIE REITER, being duly sworn, deposes and says:
That I am the secretary for the attorney for the within named
defendants. That I am over the age of 18 years, that I am not a party to the
above-entitled action;
On the J(B day of February, 2024, I seed the within AFFIRMATION
IN OPPOSITION TO PLAINTIFF’S POST TRIAL MOTION by filing same on the
official website of the Supreme Court of the State of New York via Electronic
Case Filing which notifies the following parties:
GODOSKY & GENTILE, P.C
Attorneys for Plaintiff
100 Wall Street, Suite 107
New York, New York 10005
(212) 742-9700
KAUFMAN BORGEEST & RYAN, LLP
Attorneys for the Defendant
ORANGE REGIONAL MEDICAL CENTER
1205 Franklin Avenue, Suite 200
Garden City, New York 11530
(516) 248-0677
CARRIE ITER
orn to before me on this
oruary, 2024.
1ARYP1JBIC
Maureen L. Peinhemef
Notary Pubtic, State of New York
No. 01RE6310214
Oualitied in Nassau County
Commission Lxpires Juty 13, 2O
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ALL-STATELEGAL®
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07081-OF’ 01182-St. . 02/16/2024
‘07183-GY 07184-WH
800.222.0510 ,,ww asIeqI 1lll
Index No. Year 20
602919 19
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
PAUL BERTRAM,
Plaintiffs,
- against -
TSAI-LUNG TSAI and ORANGE REGIONAL MEDICAL CENTER
k Defendants
,IFFENDA NT’S A FFIRIvL4 liON IN OPPOSITION TO PLAINTIFF’S POST TRIAL
MOTION
L
t rfl
PERRY, VAN ETFEN, ROZANSKI &
KUTNER, LLP
Attor,,evs for
Defendant-TSAI-LUNG TSAJ, D.O.
225 BROADHOLLOW ROAD. SUITE 430
MELVILLE, NY 11747
(631)414-7930
2103 (b) (5) Notice: Service of Papers by Electronic Means is Not Accepted
Pursuant to 22 NYCRR 130-1. 1-a, the undersigned, an attorney admitted to practice in the courts of New York State,
certifies that, upon information and belief and reasonable inquiry, (1) the contentions contained in the annexed
document are not frivolous and that (2) if the annexed document is an initiating pleading, ) the matter was not
obtained through illegal conduct, or that if it u:as, the attorney or other per arts re nsi le for the illegal conduct ore
not participating in the matter or shari rig in any fee earned therefrom a tha ( ‘ he matter involves potential
claims for personal injury or wrongful death, the matter was not obtain vi I ti n of 22 NYORR .1200.41-a.
Dated: Signature
Print Signer’s Name flfl{’TuiT-vA’. PPFPRV
Service of a cop,’ of the with in is hereby admitted.
Dated:
Attonrey(s) for
PLEASE TAKE NOTICE
D
NOTICE OF
that the within is a (certifledj true copy of a
entered in the oflice of the clerk of the within-named Court on. 20
ENTRY
4
D
NOTICE OF
that an O,’der of-which the within is a true copy will be presented for settlement to the
Hon. , one oJ’the judges of the within-named Court,
SETTLEMENT at
on- 20 at Al.
Dated:
PERRY, VAN EVrEN, ROZANSKI &
KUTNER, LLP
Attonievs for
Tn.
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FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Motion Returnable: -x February 20, 2024 PAUL BERTRAM, AFFIRMATION IN Plaintiffs, OPPOSITION TO -against- PLAINTIFF’S POST TRIAL MOTION TSAI-LUNQ TSAI and ORANGE REGIONAL MEDICAL CENTER, Index No.: 602919/ 19 Defendants. x DOUGLAS P. PERRY, being duly sworn, deposes and states: 1. That I am a member of PERRY, VAN E’VI’EN, ROZANSKI & KUTNER, LLP, attorneys for Defendant Tsai-Lung Tsai, M.D. As such, and from both a review of this file maintained in my offices as well as having been the Trial attorney on this matter, I am fully familiar with the facts and circumstances surrounding this action. This case was tried before this Honorable Court on two separate occasions with the first Trial having ended in a deadlocked Jury followed by the Court declaring a mistrial on February 16, 2023 and thereafter setting the case down for a re-Trial resulting in a unanimous Jury verdict in favor of the Defendant Tsai-Lung Tsai on November 1, 2023 following approximately 2 hours of deliberations. 2. This affirmation is submitted in opposition to Plaintiffs motion for relief under CPLR Section 4404. While I am tempted to “stand on the record” from the Trial and unanimous Jury verdict, please accept the following in opposition to the arguments set forth in the papers submitted on behalf of the Plaintiff Paul Bertram. 1 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 BRIEF STATEMENT OF FACTS 3. This lawsuit involves allegations of medical malpractice surrounding a purported delay in the performance of surgery for a crush injury to Paul Bertram’s left index finger which ultimately led to the surgery performed by Dr. Tsai-Lung Tsai during the early evening of June 4, 2018. The injury itself occurred while Paul Bertram was attempting to move a large rock/boulder in his yard on the afternoon-early evening of Sunday June 3, 2018 whereupon he and his then girlfriend drove to the Emergency Room of Eon Secour Community Hospital in Port Jervis, New York. Later that same evening, after hospital personnel consulted with Dr. Tsai by phone, Paul Bertram was transferred to the Orange Regional Medical Center in Middletown, New York where Dr. Tsai maintained his surgical privileges. This transfer occurred at approximately 11:00 p.m. on June 3, 2 018 with surgery having been performed by Dr. Tsai at approximately 7:30 p.m. on June 4, 2018. Dr. Tsai’s procedure consisted of open washout of the proximal phalanx of the left index finger; deep tissue debridement; repair of a comminuted fracture and bone debridement with percutaneous pinning of the left index finger; and, complex wound repair. Plaintiff alleged that it was a deviation from the standard of care by Dr. Tsai to delay surgery beyond 12:00 noon on June 4, 2018, because of which it was claimed that Paul Bertram suffered from full thickness skin loss and exposure of his tendon with the alleged injury having demonstrated itself when Paul Bertram returned to Dr. Tsai’s offices on June 26, 2018. Dr. Tsai’s office records confirm that wound 2 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 dehiscence had occurred and it was explained to Mr. Bertram and his sister that he would need a washout and flap closure to cover the wound. Paul Bertram, who was accompanied by his sister to that visit, refused any further treatment by Dr. Tsai and immediately transferred his care to Dr. Francis Winski, a plastic surgeon who subsequently became Paul Bertram’s treating physician and who likewise testified as an expert on behalf of the Plaintiff. Dr. Winski undertook to perform a wide excisional debridement of the open wound and Integra placement at the wound site including a split-thickness skin graft to the left index finger. Mr. Bertram was thereafter left with significant scarring and both a flexion and contracture deformity in his injured finger. Dr. Winski undertook to perform multiple surgical procedures with virtually no success whatsoever in terms of resolving Paul Bertram’s left index finger deformity. STANDARD OF REVIEW 4. A Motion for Judgment as a matter of law pursuant to CPLR §4404 may be granted only when, in the first instance, the Court concludes that there is “no rational process by which the Jury could find in favor of the prevailing party”, Sczerbiak v. Pilat, 90 N.Y.2d 553 (1997); Broadie v. St. Francis Hospital, 25 A.D.3d 745 (2nd Dept. 2006); Tapia v. Dattco, Inc., 32 A.D.3d 842 (2nd Dept. 2006); Hand v. Field, 15 A.D.3d 542 (2nd Dept. 2005), and that Judgment notwithstanding the verdict may not be granted unless “no valid line of reasoning and permissible inferences could possibly lead rational people to the conclusion reached by the Jury”. In the Court’s 3 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 analysis, the evidence “must be viewed in a light most favorable to the ii prevailing party,” Hammond v. Diaz, 802 A.D.3d 839 (2nd Dept. 2011); Hand, supra; and, the prevailing party must be given “every favorable inference that can be drawn from the evidence”. Fellin v. Sahgg, 35 A.D.3d 800 (2nd Dept. 2006). Similarly, when considering whether a Jury’s verdict is against the weight of the credible evidence, the standard to be applied is that the Court may not act unless “the verdict could not have been reached on any fair interpretation of the evidence,” Tapia, supra; Nicastro v. Park, 113 A.D.2d 129. Where the verdict can be reconciled with a reasonable review of the evidence, the successful party is entitled to the presumption that the Jury adopted that view. Torres v. Esaian, 5 A.D.3d 670 (2nd Dept. 2004). 5. Where, as here, both the Plaintiff and the Defendant presented expert testimony in support of their respective positions, it was the province of H the Juzy to determine the expert’s credibility.” Qiammarino v. Carlos, 144 A,D.3d 1086 (2nd Dept. 2016). 6. The Jury Verdict sheet contained two questions as follows: (1) Did I Defendant Tsai-Lung Tsai depart from accepted practices in failing to perform a washout of the injury to Paul Bertram’s left hand prior to 12:00 pm. on June 4, 2018; and, (2) Did Defendant Tsai-Lung Tsai depart from accepted medical practices by failing to timely reduce the fracture fragments and angulation of Paul Bertram’s left hand prior to 12:00 p.m. on June 4, 2018? Each of these questions was followed by an inquiry as to whether such departure (if answered in the affirmative) was a substantial factor in causing 4 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 injury to Paul Bertram. Each of the “Departure” questions were unanimously answered in favor of the Defendant Tsai-Lung Tsai, M.D. and of course the Jury never reached the issue of causation. THE COURT SHOULD SUSTAIN THE VERDICT ON BEHALF OF TSAI-LUNG TSAI. M.D. 7. This Honorable Court should not lose sight of the fact that the treatment involved in this case commenced shortly following Paul Bertram’s presentation to Bon Secour Hospital with a significant deformity to his left index finger resulting from a crush injury. It was agreed by the experts that a crush injury results in damage to tissue, skin and blood vessels with tissue necrosis being one of the later manifestations of a crush injury. (Winski T. p.646) As testified to by Dr. Tsai, a crush injury means the soft tissue of the hand (finger) is compressed between two hard surfaces. (Tsai T. pgs. 117, 118) The defense posture as set forth by both Dr. Tsai and Dr. Dagly consisted of the undisputed fact that Paul Bertram sustained a significant injury from the outset. It caused damage to skin, tissue and blood vessels with the skin and H tissue “declaring itself’ at or about the time of Paul Bertram’s last office visit to Dr. Tsai on June 26, 2018. In this regard, the Jury was presented with overwhelming evidence to support their unanimous verdict on liability. I Furthermore, the testimony was unrefuted in that the initial injury was devastating in nature. The Jury was well within their province to conclude that the timing of surgery; whether it be a washout or reduction of the fracture fragments, was meaningless in terms of the ultimate outcome regarding the claimed injuries. 5 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 8. In discussing how he first learned of the fact that Paul Bertram was in the Emergency Room of Son Secour Hospital, Dr. Tsai testified to having received a page from Bon Secour Hospital requesting that he call. (T. p.115) This occurred at approximately 9:30-10:00 p.m. on Sunday evening June 3, 2018. Upon speaking with the Emergency Room physician at Bon Secour Hospital, Dr. Tsai was told that Paul Bertram sustained a “crush” injury to the left index finger and that he (Bertram) presented with mud and a contaminated, dirty wound. The Emergency Room physician at Son Secour Hospital was seeking guidance from Dr. Tsai (T. p.1 17). Upon reviewing the x-rays, Dr. Tsai confirmed that Paul Bertram had an open, displaced fracture of the proximal phalanx of his left index finger. During the Trial, Dr. Tsai testified that a crush injury involves the soft tissue of the hand (finger) and results from it being compressed between two hard surfaces. In this case, the boulder crushed Paul Bertram’s finger between two hard surfaces whereby the fingers on the hand were sandwiched between the boulder and another hard surface. (T. p. 117) Dr. Tsai appropriately advised the Emergency Room physician at Bon Secour Hospital to wash out the wound. “So, I told him that this type of injury, the most important thing, the most critical thing is immediately washout and place the patient on antibiotics.” (T. p.118) Continuing, Dr. Tsai testified that he told the ER physician that: “Based upon the literature, study and experience, that the most important thing is to wash out, so do as much as you can and washout as good as you can and put the patient on antibiotics and that’s the most important thing to minimizing the nature of the injury.” (T. p.119) 6 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 All of the experts concurred with Dr. Tsai’s testimony that Ancef, a broad-spectrum antibiotic, is the first line drug of choice. At the same time, Dr. Tsai testified to the following: “I told him that by washing out and put him on antibiotics you decrease the urgency to do—the emergency of surgery. So, I told him that by washing out and giving antibiotics, I can take into surgery the next day.” (T. p.120.) 9. Dr. Tsai was asked opinions as to the treatment which he provided to Paul Bertram including pointed inquiry as to the timing of the surgery which he performed. Specifically, at page at page 143 of the attached Trail transcript, Dr. Tsai testified that he ‘debrided devitalized tissue’ during his surgery and went on to explain that he removed tissue which did not look healthy enough as a result of the crush injury and went on to explain that “I cut it to remove all the questionable unhealthy soft tissue.” When questioned as to the cause of the damage to the tissue, Dr. Tsai explained that it was from the crush of the boulder. (T. p.147). 10. Postoperatively, Paul Bertram made his final office visit to Dr. Tsai on June 26, 2018 at which time he observed full thickness skin loss and an exposed tendon on the injured finger. Dr. Tsai testified that the wound ‘opened up’ (dehisced) and the tendon was exposed. When asked his expert opinion as to the cause of this injury, Dr. Tsai testified as follows: “My opinion is that the injury was due to the crush of the boulder” (T. p160) “The injury damaged, the boulder damaged the soft tissue, the skin and gradually the skin declared itself and became eventually devitalized and 7 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 opened it up.” (T. p.160) 11. In response to further inquiry by counsel, Dr. Tsai rendered his expert opinion that the timing of the surgery was not the cause of the wound dehiscing. (T pgs.160, 161) 12. Kamal Dagly, M.D., a Board Certified Hand Surgeon and Orthopedist testified in support of the treatment rendered by Dr. Tsai. During I r his direct testimony, Kamal Dagly, M.D., was asked the following question: “In your opinion Dr. Dagly, was the failure to reduce the fracture until between 7:30 p.m. and 9:30 p.m. on June 4, 2018, a deviation from the standard of care by Dr. Tsai?”. (T. p.225) Dr. Dagly definitively answered “No” to that question and when asked the basis of his opinion, testified as follows: “The basis of that opinion is that fractures can be dealt with, you know, varying amounts of time. It just depends upon the situation, but the fracture such as this one, you know, you try to get it done as soon as you can but it can be done, you know immediately or it can be done within like two weeks.” (T. p.225) Continuing his testimony, Dr. Dagly said the following: “Because he had an open wound, you want to try and get it sooner rather than later, but you know, 24 hours is a very reasonable time frame to get to it. You know, with one thing that you supposed to do in open fractures like this is to give antibiotics and the timing of those antibiotics is sort of important to prevent things like infection which I don’t think. I don’t think there was any infection documented here.” (T. p.225) 13. To expand upon the opinions of Dr. Dagly, this Honorable Court inquired as follows: 8 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 COURT: “You mentioned 24 hours being a very reasonable time frame. Are you referencing 24 hours from the time of the injury? 24 hours from the time that the patient gets to the hospital or something else?” DAGLY: “Approximately within 24 hours or so. It is not an absolute number. It is not pubLished anywhere that a physician must get to it with one hour or six hours. I’m not aware of any studies saying certain amount of time. Based upon the case, I think that is a reasonable amount of time to get the fractured pinned and taken care of whereas I know many cases like this it takes even longer to get to.” COURT: “Let’s assume the injury occurred at approximately 6:30 p.m. on June 3 and presented to Bon Secour at approximately 7:50 p.m. and then surgery is ultimately done between 7:30 and 9:00 p.m. the following day so 25, 26 hours. In your opinion was that acceptable doctor?” DAGLY: Yes The Court: Was it a deviation by Dr. Tsai to not have performed it sooner? Dr. Dagly: “No.” (T. p.228) 14. Thereafter, Dr. Dagly was specifically asked whether it was deviation from the standard of care to do a washout under anesthesia between 7:30 to 9:00 p.m. on June 4th? Dr. Dagly answered that question in the negative and at the same time, gave the basis of his opinion: “The basis is that he got the antibiotics in the emergency room, the wound was cleansed once or twice before he got to the operating room and then, it was done again in the operating room.” (T. p.230) 15. Thereafter Dr. Dagli was specifically asked whether a washout was timely performed by Dr. Tsai? In response to this inquiry Dr. Dagly answered that indeed the washout was timely and set forth the basis of his 9 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 opinion. ft pgs230, 231). Immediately following, Dr Dagly gave his opinions as to the cause of the full thickness skin loss and at page 231 he was asked the following “Doctor, do you have an opinion as to the cause of the full thickness skin loss resulting in the exposed tendon which was found by Dr. Tsai on June 26, 2018?” ft. p.232) 16. Dr. Dagli’s answer follows on that same page when he testified that the cause of the injuries claimed in this case resulted from the devastating nature of the crush injury from the boulder falling on Paul Bertram’s hand: “The skin has a blood supply. Every organ in the body has a blood supply to it. The skin and the integumentary system or skin system is the largest. People don’t realize, but it’s the largest organ in the body. It has the biggest surface area. Skin in all areas has a blood supply to it. It’s sort of why we kind of shift around in our chairs because when you’re sitting in one spot for long time is uncomfortable in that area so when you have a crush injury, if enough energy from the crush damages that blood supply, then the skin can die in that area”. (T. p.232) 17. Dr. Dagly was then asked whether the washout performed by Dr. Tsai in the Operating Room at Orange Regional Medical Center was done in timely fashion. In response to this inquiry Dr. Dagly answered “Yes” and explained that his opinion was based on experience and training and looking at the injury; ‘at the big picture.” (T. p.234) Dr. Dagly thereafter explained how skin breaks down from an injury such as the one Mr. Bertram sustained at the time the boulder crushed his finger: “Sure. As I mentioned before, when a crush injury happens in that area of, like, maximal impact, the blood supply to the skin can become compromised so 10 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 the skin is like one of those structures where it doesn’t immediately show you. It may not immediately show you that is going to live or it’s going to die or it’s going to recover. You don’t know for some amount of time because if there is no blood flow to that area, it’s slowly sort of becomes darker in color or changes color or dries out. Then eventually, it’ll sort of declare itself and it either makes it or it doesn’t.” “In many injuries, we don’t know for some time after a crush whether a certain portion of the skin is going to make it or not. It has to do with the compromised blood supply to that area from the damage of the injury and that can did I answer your — question?” (T. pgs. 235, 236) 18. Dr. Dagly explained that in this case, the skin ‘declared itself when it opened-up and the tendon was exposed. (T. p.237) 19. When Dr. Tsai was questioned regarding his opinion as to the cause of the wound dehiscence which was found at the very last office visit, he testified in identical fashion by stating that “the injury is due to the crush from the boulder. The damage that was caused at the time of the boulder crush.” (T. p. 160) Dr. Tsai went on to explain that the boulder damaged the soft tissue, the skin and gradually, the skin declared itself and became devitalized and opened-up. (T. p.160) In utilizing the term “opened up” Dr. Tsai meant that this was the time when the wound was found to have dehisced at the time of the very last office visit. Finally, Dr. Tsai rendered the opinion that “timing of the surgery” did not cause the wound to dehisce. (T. pgs.160, 161) 20. Plaintiff argues that Defendant Tsai failed to timely perform both a washout and reduction of the fracture fragments; each of which 11 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 independently or in conjunction with one another resulted in breakdown of the skin. This argument is clearly refuted by the testimony of both Dr. Tsai-Lung Tsai and Dr. Kamal Dagly who rendered their opinions that the injuries in this case; that being full thickness skin loss resulting in exposure of the tendon, was a product of the initial crush injury and concomitantly had nothing to do with the timing of surgery. It was well within the province of the Jury to accept the well-reasoned opinions of both Dr. Tsai and Dr. Kamal Dagly especially given the facts of this case where the treatment at issue was preceded by a significant and rather devastating crush injury to Paul Bertram’s left index finger. At the same time, the Jury was in their province to completely reject the testimony of Plaintiffs expert and treating plastic surgeon Francis Winski, M.D. who proved himself to be of highly questionable ability when it comes to surgery of the hand. In fact, the Jury could have readily concluded that it was Winski’s treatment which led to the claimed damages in this case in that his years of substandard treatment left Paul Bertram with his current disability and that his testimony was designed to place the blame on Dr. Tsai for what the Jury could well have found was the result of poor treatment by Dr. Winski himself. 21. Dr. Winski confessed that a crush injury alone can and does result in damage to the integrity of the skin (T. p.620) and that it can have the ability to likewise affect the blood supply that feeds the skin. (T. p’62 1) Dr. Winski agreed that if indeed the blood supply to the skin is compromised for whatever reason, the skin can become necrotic. (T. p.621). He further agreed 12 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 that with injuries such as the one sustained by Paul Bertram, it can take time for the skin to declare itself in terms of whether the skin is going to survive. (T. p.621) Winski readily acknowledged that in as little as 20 minutes, pressure can begin to compromise the skin following an injury thereby leading to the inevitable conclusion by the Jury that the damage claimed by Plaintiff was complete and irreversible well before Paul Bertram was transferred to Orange Regional Medical Center. (T. p.624) 22. In this case which, according to Dr. Winski, involved the I timeliness of reducing fracture fragments, he confessed to having never reviewed even one x-ray. (T.p.637,638) while at the same time acknowledging that x-rays are specifically designed to evaluate bony structure. It is worth mentioning that during Dr. Winski’s more than 3 years of treatment of Paul I Bertram’s injured finger that he never took as much as one x-ray. The Jury in P this case had every right to reject Dr. Winski’s testimony in its entirety and to view it as self-serving and designed to explain away his treatment which Dr. Dagly viewed as below acceptable standards. 23. Plaintiff cites the case of Nichols v. Stammer, N.Y.S.2d 220; 49 A.D.3d 832 to argue that there was no rational basis by which the Jury could have found in favor of Dr. Tsai and against the Plaintiff, Paul Bertram. In fact, Nichols stands for the proposition that the Court may only grant a CPLR 4401 motion only if there was no rational basis by which the Jury could have found for Dr. Tsai against the moving Plaintiff. 24. In the instant case, there were multiple reasons why the Jury 13 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 could have readily found for Dr. Tsai regardless of when surgery was performed. There was ample testimony to support the Defendant’s contention that surgery was timely performed by Dr. Tsai including both the washout and the pinning. At the same time, the Jury could very well have decided that the initial injury itself was so damaging such that it caused the injuries claimed by the Plaintiff including full thickness skin loss on the palmar surface of Plaintiff’s index finger. In fact, upon questioning by Plaintiff’s counsel, Dr. Dagly reaffirmed his opinion when he testified that the initial trauma from the boulder on the evening of June 3rd caused the tissue on the finger to necrose roughly two-and-a-half weeks later. (T. p.279) From the perspective of the Jury, this opinion by Dr. Dagly would render the timing of the surgery meaningless on all fronts. Both Dr. Dagly and Dr. Tsai testified to i the fact that the injury alone caused disruption of soft tissue by the nature of it being labded a “crush injury.” As such, the vasculature supplying the skin became disrupted and as clearly stated by both Dr. Dagly and Dr. Tsai, it takes time for the skin/tissue to declare itself and when it did in this case, it resulted in dehiscence of the wound and loss of soft tissue; the precise injuries which Plaintiff alleges was caused by deviations from the standard of care by Dr. Tsai. The Jury was well within its province to decide that Dr. Tsai did not deviate from the standard of care in either the timeliness of the washout or the pinning or reduction of fracture fragments. WHEREFORE, it is respectfully requested that Plaintiff’s Motion seeking to set aside the Jury’s verdict which was returned in favor of Defendant 14 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 Tsai-Lung Tsai on November 1, 2023 and directing that Judgment be entered in favor of Plaintiff or in the alternative, granting a new Trial pursuant to CPLR §4404(a) based on the ground that the Jury verdict was contrary to the weight of the credible evidence and in error as a matter of law, be denied in its entirety and that Judgment be entered in favor of the Defendant Tsai-Lung Tsai based upon the unanimous Jury verdict. Dated: Melville, New York February 6, 2024 Respectfully submitted, PERRY, VAN EYI’EN, ROZANSKI & KUTNER, LLP Attorneys for Defendant TSAI-LUNQ TSAI, M.D. 225 Broadhollow Ri 430 Melville, New (631) 4 14-79. By: 15 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 02/16/2024 STATE OF NEW YORK I COUNTY OF SUFFOLK) CARRIE REITER, being duly sworn, deposes and says: That I am the secretary for the attorney for the within named defendants. That I am over the age of 18 years, that I am not a party to the above-entitled action; On the J(B day of February, 2024, I seed the within AFFIRMATION IN OPPOSITION TO PLAINTIFF’S POST TRIAL MOTION by filing same on the official website of the Supreme Court of the State of New York via Electronic Case Filing which notifies the following parties: GODOSKY & GENTILE, P.C Attorneys for Plaintiff 100 Wall Street, Suite 107 New York, New York 10005 (212) 742-9700 KAUFMAN BORGEEST & RYAN, LLP Attorneys for the Defendant ORANGE REGIONAL MEDICAL CENTER 1205 Franklin Avenue, Suite 200 Garden City, New York 11530 (516) 248-0677 CARRIE ITER orn to before me on this oruary, 2024. 1ARYP1JBIC Maureen L. Peinhemef Notary Pubtic, State of New York No. 01RE6310214 Oualitied in Nassau County Commission Lxpires Juty 13, 2O 16 of 17 FILED: SUFFOLK COUNTY CLERK 02/16/2024 10:26 AM INDEX NO. 602919/2019 ALL-STATELEGAL® NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07081-OF’ 01182-St. . 02/16/2024 ‘07183-GY 07184-WH 800.222.0510 ,,ww asIeqI 1lll Index No. Year 20 602919 19 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK PAUL BERTRAM, Plaintiffs, - against - TSAI-LUNG TSAI and ORANGE REGIONAL MEDICAL CENTER k Defendants ,IFFENDA NT’S A FFIRIvL4 liON IN OPPOSITION TO PLAINTIFF’S POST TRIAL MOTION L t rfl PERRY, VAN ETFEN, ROZANSKI & KUTNER, LLP Attor,,evs for Defendant-TSAI-LUNG TSAJ, D.O. 225 BROADHOLLOW ROAD. SUITE 430 MELVILLE, NY 11747 (631)414-7930 2103 (b) (5) Notice: Service of Papers by Electronic Means is Not Accepted Pursuant to 22 NYCRR 130-1. 1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, (1) the contentions contained in the annexed document are not frivolous and that (2) if the annexed document is an initiating pleading, ) the matter was not obtained through illegal conduct, or that if it u:as, the attorney or other per arts re nsi le for the illegal conduct ore not participating in the matter or shari rig in any fee earned therefrom a tha ( ‘ he matter involves potential claims for personal injury or wrongful death, the matter was not obtain vi I ti n of 22 NYORR .1200.41-a. Dated: Signature Print Signer’s Name flfl{’TuiT-vA’. PPFPRV Service of a cop,’ of the with in is hereby admitted. Dated: Attonrey(s) for PLEASE TAKE NOTICE D NOTICE OF that the within is a (certifledj true copy of a entered in the oflice of the clerk of the within-named Court on. 20 ENTRY 4 D NOTICE OF that an O,’der of-which the within is a true copy will be presented for settlement to the Hon. , one oJ’the judges of the within-named Court, SETTLEMENT at on- 20 at Al. Dated: PERRY, VAN EVrEN, ROZANSKI & KUTNER, LLP Attonievs for Tn. 17 of 17 DROADHOLLOW OAD UITL U