Preview
INDEX NO. 808100/2015
(FILED: ERIE COUNTY CLERK 11/04/2016 I1:46 PM
NYBCEF DOC. NO. 35 RECEIVED NYSCEF: 11/04/2016
STATE OF NEW YORK
SUPREME COURT COUNTY OF ERIE
DAVID PHILLIPS
Plaintiff
ATTORNEY’S AFFIRMATION
VS. Index #808100/2015
BUFFALO HEART GROUP, LLP,
RICHARD JENNINGS, M.D.
Defendants
STATE OF NEW YORK }
COUNTY OF ERIE } SS.:
THERESA M. WALSH, ESQ. affirms the following to be true under penalty of perjury
pursuant to CPLR §2106:
1 I am an attorney duly licensed to practice law in the State of New York and a
member of the law firm of BROWN CHIARI 11?, 2470 Walden Avenue, Buffalo, NY 14225,
attorneys for the Plaintiff in the above matter.
2 I make this affirmation in support of Plaintiff's motion for leave to reargue the
defendants’ motion to dismiss pursuant to CPLR§214-a and CPLR §3211(a)(5).
3 Attached as Exhibit A are copies of Defendants’ Notice of Motion, Affidavit of
Sally J. Broad, Esq. with attached exhibits and Reply Affidavit of Amanda C. Rossi, Esq.
4 Attached as Exhibit B is a copy of the Affirmation of Theresa M. Walsh, Esq
with attached exhibits.
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5 Attached as Exhibit C is a copy of the Court’s September 30, 2016 Order with
cover letter enclosing same which was served via regular mail.
6 As this Court is aware, the Defendants primarily relied upon the decision of
Patten v. Hamburg OB/GYN, 50 AD3d 1624, 856 NYS2d 748 (4 Dept. 2008) in support of their
position that the within action was subject to dismissal.
7 It is appreciated that the Court felt bound to follow Patten as applicable to the
instant matter. However, it is respectfully submitted that there are several factors that make the
instant matter distinguishable from Patten.
8 The medication at issue in the instant matter is dissimilar from Patten which dealt
with the prescription of estrogen cream and the claimed development of cancer from its long
term use. The Court’s decision in Patten seemed to hinge on the specific factors of that case.
Instead, the medication at issue in this matter involved Pradaxa, a form of anticoagulant therapy,
which involves vastly different issues of use, monitoring and injury.
9. In the case at bar, the prescription, monitoring and directives involving Mr.
Phillips’ Pradaxa use was continuing in nature. In particular, as previously noted, on December
14, 2012, Mr. Phillips had presented to Dr. Jennings for the ongoing monitoring of his medical
therapy of his atrial fibrillation at which time he was directed to remain on Pradaxa. Mr. Phillips
was then scheduled to see Dr. Jennings again as directed on June 7, 2013. See Exhibit B,
Affirmation of Theresa M. Walsh, Esq. dated September 13, 2016 — Exhibit A and Exhibit C.
However, that was not the last contact the Defendants had with Mr. Phillips.
10. Instead, on January 2, 2013, Mr. Phillips presented to the Defendants’ office for
worsening shortness of breath and was seen by one Defendant Buffalo Heart Group’s NPs,
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Randall Sam. Mr. Phillips had also reported at that time and struck his right upper torso on the
edge of the sink which was about 1 week before his December 14, 2012 appointment with Dr.
Jennings. Mr. Sam’s impression was that his shortness of breath was multifactorial, with one of
the factors being atrial fibrillation, the condition for which he was taking Pradaxa. Mr. Phillips
was given renewed directive to remain on the Pradaxa at that time. See Exhibit B, Affirmation of
Theresa M. Walsh, Esq. dated September 13, 2016 — Exhibit C.
11. The records demonstrate Dr. Jennings’ continued involvement in Mr. Phillips’
during this period. The report of echocardiogram done that day testing notes Dr. Jennings as the
referring physician and was also sent to him. The notations on the report also indicate that Dr.
Jennings had reviewed the results of the report at least by January 6, 2013. An EKG was also
performed on January 2, 2013 noted that Dr. Jennings was the requesting physician.
Furthermore, the records indicated that on January 6, 2013, Dr. Jennings re-reviewed the EKG
that had been done at the time of Mr. Phillips December 14, 2012 evaluation. See Exhibit B,
Affirmation of Theresa M. Walsh, Esq. dated September 13, 2016 — Exhibit A.
12. The Defendants’ last documented contact with Mr. Phillips prior to his hospital
admission was on January 7, 2013 when he spoke with the triage nurse and thereafter received
instructions from Mr. Sam to have a repeat echocardiogram upon his return from Florida which
Mr. Phillips scheduled for April 3, 2013. See Exhibit B, Affirmation of Theresa M. Walsh, Esq.
dated September 13, 2016 — Exhibit A.
13. Notably, within seven (7) of his last contact with the Defendants on January 7,
2013, Mr. Phillips began to acutely exhibit symptoms of his upper GI bleed and presented to the
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VA Bay Pines on January 16, 2013. See Exhibit B, Affirmation of Theresa M. Walsh, Esq.
dated September 13, 2016 - Exhibit D.
14. “The determination whether continuous treatment exists “must focus on the
patient’ ..and, ‘in determining whether plaintiff raised an issue of fact concerning the
applicability of the continuous treatment doctrine, [his] version of the facts must be accepted as
true.” (citations omitted) Lohnas v. Luzi, 140 AD3d 1717, 33 NYS3d 637 (a Dept. 2016). As
further noted by the Court, “based on plaintiff's version of the facts, there is support in the record
for a finding that plaintiff ‘intended uninterrupted reliance’ upon defendant's observation,
directions, concern, and responsibility for overseeing her progress.” Lohnas at 1718.
15. This has been demonstrated in the case at bar. Significantly, Mr. Phillips
indicated the continuation of his relationship with the Defendants as he presented to them
uninterruptedly for cardiac care, including for atrial fibrillation, which involved the continuous
process of the prescribing and monitoring of his Pradaxa use and scheduled follow-up
appointments as instructed after presentation to their office as noted above.
16. Furthermore, Dr. Jennings’ actions demonstrated the continuing nature of this
relationship as he was clearing monitoring Mr. Phillips’ condition in January 2013.
Additionally, whether Dr. Jennings actually saw Mr. Phillips is not dispositive. Oksman y. City
of New York, 271 AD2d 213, 705 NYS2d 360 (1 Dept. 2000). The above actions by both Mr.
Phillips and the Defendants evidences an, “an ongoing relationship of trust and confidence
between plaintiff and defendant” and as such the continuing treatment doctrine is applicable.
Ramirez v. Friedman, 287 Ad2d 376, 731 NYS2d 4455 (1* Dept. 2001).
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17. Moreover, the crux of the Court’ decision in Patten was its determination that
continuous treatment doctrine did not apply. However, neither the Supreme Court nor the
Appellate Division dismissed the action it is entirety. Rather, the Appellate Division in its
decision affirmed the Supreme Court’s decision to grant the defendants’ summary judgment
motion dismissing the complaint as it “concerns medical services rendered...more than two years
and six months before the commencement of the action.” Patten at 1624.
18. Accordingly, your deponent respectfully requests that should this Court after its
consideration of the instant motion, still find Patten’s applicability as it pertains to the
continuous treatment doctrine, that the Complaint still be reinstated as to any medical services
which were rendered within the two and half years before the commencement of this action.
This would consistent with the Court’s holding Patten.
19. The Summons and Complaint in this regard is clearly timely just based upon the
Defendants own records documenting his renewed directive to remain on Pradaxa on January 2,
2013 as well as the medical services rendered to Mr. Phillips through at least January 7, 2013.
20. Moreover, the above recitation of events in this matter again underlies the
premature nature of the contemplation of this issue by the Court as many questions are raised
from the information that can be ascertained from the present record but many questions relative
to the Defendants’ actions remain unanswered given that this case is still is the early stages of
discovery. Depositions have not been conducted of any of the parties including Dr. Jennings or
other pertinent personnel of Buffalo Heart Group. As such, this motion should be denied this
basis as well as the Plaintiff has not been afforded the opportunity for discovery pertaining to
issues in dispute in the instant matter. See CPLR§3211(d).
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WHEREFORE, your deponent respectfully requests an Order of this Court denying
defendants’ motion in its entirety and for such other relief as shall be deemed just and proper.
DATED: Buffalo, New York
November 4, 2016
eres. alsh
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Preview
INDEX NO. 808100/2015 (FILED: ERIE COUNTY CLERK 11/04/2016 I1:46 PM NYBCEF DOC. NO. 35 RECEIVED NYSCEF: 11/04/2016 STATE OF NEW YORK SUPREME COURT COUNTY OF ERIE DAVID PHILLIPS Plaintiff ATTORNEY’S AFFIRMATION VS. Index #808100/2015 BUFFALO HEART GROUP, LLP, RICHARD JENNINGS, M.D. Defendants STATE OF NEW YORK } COUNTY OF ERIE } SS.: THERESA M. WALSH, ESQ. affirms the following to be true under penalty of perjury pursuant to CPLR §2106: 1 I am an attorney duly licensed to practice law in the State of New York and a member of the law firm of BROWN CHIARI 11?, 2470 Walden Avenue, Buffalo, NY 14225, attorneys for the Plaintiff in the above matter. 2 I make this affirmation in support of Plaintiff's motion for leave to reargue the defendants’ motion to dismiss pursuant to CPLR§214-a and CPLR §3211(a)(5). 3 Attached as Exhibit A are copies of Defendants’ Notice of Motion, Affidavit of Sally J. Broad, Esq. with attached exhibits and Reply Affidavit of Amanda C. Rossi, Esq. 4 Attached as Exhibit B is a copy of the Affirmation of Theresa M. Walsh, Esq with attached exhibits. - BROWN CHIARI tip - 1 of 6 5 Attached as Exhibit C is a copy of the Court’s September 30, 2016 Order with cover letter enclosing same which was served via regular mail. 6 As this Court is aware, the Defendants primarily relied upon the decision of Patten v. Hamburg OB/GYN, 50 AD3d 1624, 856 NYS2d 748 (4 Dept. 2008) in support of their position that the within action was subject to dismissal. 7 It is appreciated that the Court felt bound to follow Patten as applicable to the instant matter. However, it is respectfully submitted that there are several factors that make the instant matter distinguishable from Patten. 8 The medication at issue in the instant matter is dissimilar from Patten which dealt with the prescription of estrogen cream and the claimed development of cancer from its long term use. The Court’s decision in Patten seemed to hinge on the specific factors of that case. Instead, the medication at issue in this matter involved Pradaxa, a form of anticoagulant therapy, which involves vastly different issues of use, monitoring and injury. 9. In the case at bar, the prescription, monitoring and directives involving Mr. Phillips’ Pradaxa use was continuing in nature. In particular, as previously noted, on December 14, 2012, Mr. Phillips had presented to Dr. Jennings for the ongoing monitoring of his medical therapy of his atrial fibrillation at which time he was directed to remain on Pradaxa. Mr. Phillips was then scheduled to see Dr. Jennings again as directed on June 7, 2013. See Exhibit B, Affirmation of Theresa M. Walsh, Esq. dated September 13, 2016 — Exhibit A and Exhibit C. However, that was not the last contact the Defendants had with Mr. Phillips. 10. Instead, on January 2, 2013, Mr. Phillips presented to the Defendants’ office for worsening shortness of breath and was seen by one Defendant Buffalo Heart Group’s NPs, - BROWN CHIARL 1p - 2 of 6 Randall Sam. Mr. Phillips had also reported at that time and struck his right upper torso on the edge of the sink which was about 1 week before his December 14, 2012 appointment with Dr. Jennings. Mr. Sam’s impression was that his shortness of breath was multifactorial, with one of the factors being atrial fibrillation, the condition for which he was taking Pradaxa. Mr. Phillips was given renewed directive to remain on the Pradaxa at that time. See Exhibit B, Affirmation of Theresa M. Walsh, Esq. dated September 13, 2016 — Exhibit C. 11. The records demonstrate Dr. Jennings’ continued involvement in Mr. Phillips’ during this period. The report of echocardiogram done that day testing notes Dr. Jennings as the referring physician and was also sent to him. The notations on the report also indicate that Dr. Jennings had reviewed the results of the report at least by January 6, 2013. An EKG was also performed on January 2, 2013 noted that Dr. Jennings was the requesting physician. Furthermore, the records indicated that on January 6, 2013, Dr. Jennings re-reviewed the EKG that had been done at the time of Mr. Phillips December 14, 2012 evaluation. See Exhibit B, Affirmation of Theresa M. Walsh, Esq. dated September 13, 2016 — Exhibit A. 12. The Defendants’ last documented contact with Mr. Phillips prior to his hospital admission was on January 7, 2013 when he spoke with the triage nurse and thereafter received instructions from Mr. Sam to have a repeat echocardiogram upon his return from Florida which Mr. Phillips scheduled for April 3, 2013. See Exhibit B, Affirmation of Theresa M. Walsh, Esq. dated September 13, 2016 — Exhibit A. 13. Notably, within seven (7) of his last contact with the Defendants on January 7, 2013, Mr. Phillips began to acutely exhibit symptoms of his upper GI bleed and presented to the - BROWN CHIARI ip - 3 of 6 VA Bay Pines on January 16, 2013. See Exhibit B, Affirmation of Theresa M. Walsh, Esq. dated September 13, 2016 - Exhibit D. 14. “The determination whether continuous treatment exists “must focus on the patient’ ..and, ‘in determining whether plaintiff raised an issue of fact concerning the applicability of the continuous treatment doctrine, [his] version of the facts must be accepted as true.” (citations omitted) Lohnas v. Luzi, 140 AD3d 1717, 33 NYS3d 637 (a Dept. 2016). As further noted by the Court, “based on plaintiff's version of the facts, there is support in the record for a finding that plaintiff ‘intended uninterrupted reliance’ upon defendant's observation, directions, concern, and responsibility for overseeing her progress.” Lohnas at 1718. 15. This has been demonstrated in the case at bar. Significantly, Mr. Phillips indicated the continuation of his relationship with the Defendants as he presented to them uninterruptedly for cardiac care, including for atrial fibrillation, which involved the continuous process of the prescribing and monitoring of his Pradaxa use and scheduled follow-up appointments as instructed after presentation to their office as noted above. 16. Furthermore, Dr. Jennings’ actions demonstrated the continuing nature of this relationship as he was clearing monitoring Mr. Phillips’ condition in January 2013. Additionally, whether Dr. Jennings actually saw Mr. Phillips is not dispositive. Oksman y. City of New York, 271 AD2d 213, 705 NYS2d 360 (1 Dept. 2000). The above actions by both Mr. Phillips and the Defendants evidences an, “an ongoing relationship of trust and confidence between plaintiff and defendant” and as such the continuing treatment doctrine is applicable. Ramirez v. Friedman, 287 Ad2d 376, 731 NYS2d 4455 (1* Dept. 2001). - BROWN CHIARI itp - 4 of 6 17. Moreover, the crux of the Court’ decision in Patten was its determination that continuous treatment doctrine did not apply. However, neither the Supreme Court nor the Appellate Division dismissed the action it is entirety. Rather, the Appellate Division in its decision affirmed the Supreme Court’s decision to grant the defendants’ summary judgment motion dismissing the complaint as it “concerns medical services rendered...more than two years and six months before the commencement of the action.” Patten at 1624. 18. Accordingly, your deponent respectfully requests that should this Court after its consideration of the instant motion, still find Patten’s applicability as it pertains to the continuous treatment doctrine, that the Complaint still be reinstated as to any medical services which were rendered within the two and half years before the commencement of this action. This would consistent with the Court’s holding Patten. 19. The Summons and Complaint in this regard is clearly timely just based upon the Defendants own records documenting his renewed directive to remain on Pradaxa on January 2, 2013 as well as the medical services rendered to Mr. Phillips through at least January 7, 2013. 20. Moreover, the above recitation of events in this matter again underlies the premature nature of the contemplation of this issue by the Court as many questions are raised from the information that can be ascertained from the present record but many questions relative to the Defendants’ actions remain unanswered given that this case is still is the early stages of discovery. Depositions have not been conducted of any of the parties including Dr. Jennings or other pertinent personnel of Buffalo Heart Group. As such, this motion should be denied this basis as well as the Plaintiff has not been afforded the opportunity for discovery pertaining to issues in dispute in the instant matter. See CPLR§3211(d). - BROWN CHIARL itp - 5 of 6 WHEREFORE, your deponent respectfully requests an Order of this Court denying defendants’ motion in its entirety and for such other relief as shall be deemed just and proper. DATED: Buffalo, New York November 4, 2016 eres. alsh - BROWN CHIARI itp - 6 of 6