Preview
FILED: SUFFOLK COUNTY CLERK 10/17/2022 03:03 PM INDEX NO. 001359/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/17/2022
5606
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--------------------------------------------------------------X Index No.: 001359/2009
DENNIS DOWNES and JANE DOWNES,
NOTICE OF ENTRY
Plaintiff,
-against-
CHARLES G. ARCOLEO, M.D., RAJOO C. PATEL,
M.D., SOUTHAMPTON HOSPITAL, and
SOUTHAMPTON HOSPITAL ASSOCIATION,,
Defendants.
-------------------------------------------------------------X
PLEASE TAKE NOTICE, that the within is a true copy of an Order duly entered in the
Office of the Clerk of the within named Court on September 21, 2022.
Dated: Garden City, New York
October 17, 2022
Yours truly,
_______________________________
Michael Lauterborn Esq.
Silberstein, Awad & Miklos, P.C.
600 Old Country Road
Suite 505
Garden City, NY 11530
S.A.M. File No.: 5606
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FILED: SUFFOLK COUNTY CLERK 09/21/2022
10/17/2022 12:58
03:03 PM INDEX NO. 001359/2009
NYSCEF DOC. NO. 29
31 RECEIVED NYSCEF: 09/21/2022
10/17/2022
INDEXNo. 135912009
CAL No. 201802045MM
Ww
SUPREME COURT - STATE OF NEW 7
YORK
LA.S. PART 10 - SUFFOLK COUNTY
PRESENT:NT:
|
Hon. JOSEPH A. SANTORELLI
w
Justice of the Supreme Court
-----------------------------------------------~-------------------------
X
DENNIS}DOWNES5 and| JANEpiDOWNES, MICHAEL LAUTERBORN,N, ESQ.
Attorneyssor
>
for Plaintiffs5
600) OLD) COUNTRY Y
RD.,y
STE. 412
Plaintiffs, • GARDENq CITY, NY. 11530)
-against- PERRY,; VANI ETTEN,I, ROZA"t-JSKI,
KUTNERLLPuP .
A ttorneyssor
for Defendant
. it
CHARLES5 G. ARCOLEO,),
q
M.D., .
CharlesS A. Arcoleo, M.D.
RAJOO )
C. PATEL, 3
MD., > 225) BROADHOLLOWW ROAD SUITE 430
ROBERT* O'LEMP,) >
PA, y Melville, NY 11747
ALAN M. GANDOLFI, MD, 24/7
EMERGENCY CARE, PC, SHAUB3 AHMUTY CITRINq SPRATT
AttorneysSsforr
Defendantut
SOUTHAMPTON HOSPITAL and
KajofC. Patel, MD
SOUTHAMPTON HOSPITAL ASSOCIATION, 1983 Marcus 5 Avenue
Lake Success, NY 11042’
Defendants. .,
BARBIERO, BISCH & O'CONNOR, LLP
AttorneysforOrDefendants‘s
Southampton
- n
Hospitaldod
and Southampton
Hospitalq Association
35 PINELA\ WN ROAD) SUITE 127
MELVILLE, NY 11747'
----------------------------------------------~-'-.;.-'---------.;.-----'---.;.---
X
ws
In this action to recover damages for medical malpractice& defendantsS Charles Arcoleo,
M.D., Rajoo C. Patel, M.D., Southampton Hospital and Southampton Hospital Association move
US
va
for an order precluding the plaintiff s expert from proffering testimony on what is being
~
je
wa
characterized as "new theories of liability".
The plaintiff opposes these applications in all respects.
By way of background, the first trialof this matter ended in a mistrial on November 9,
2021, due to juror misconduct. At the point the mistrial was declared the plaintiffs cardiology
1
2 of 5
7
FILED: SUFFOLK COUNTY CLERK 09/21/2022
10/17/2022 12:58
03:03 PM INDEX NO. 001359/2009
NYSCEF DOC. NO. 29
31 RECEIVED NYSCEF: 09/21/2022
10/17/2022
Downes v Charles G. Areoleo, MD., et al.
Index No. 1359/2009
Page 2
expert, Dr. James Chang, was testifying.
On or about July 26, 2022, the plaintiff served a "SUPPLEMENTAL AMENDED
EXPERT WITNESS DISCLOSURE," which is so far as relevant to these motions, "added" the
ust
vo
a]
following departures along with claims of probable cause of the plaintiff s injuries and the loss of
a substantial chance for a better outcome:
The expert will likely testify that all patients have a right to be kept
informed about their clinical/medical circumstances as well as the
limitations of the treating facility. All physicians, nurses and
hospitals have a medical duty to keep a patient reasonably apprised
of their medical condition as well as the resources of the
hospital/facility should a need for further treatment apply. In 2006
Southampton hospital did not have a catheterization lab and did not
have the ability to perform cardiac catheterization. The eXpert will
likely testify that under the circumstances of Mr. Downes
presentation to Southampton hospital. Dr. Patel, Dr. Arcoleo and
lor Southampton hospital, its agents, employees and/or nurses had
an obligation to inform Mr. Downes that if the need arose to
perform cardiac catheterization they would be unable to do so; The
expert will also likely testify that the failure to inform Mr. Downes
that Southampton hospital did not have a cardiac catheterization.
lab and provide him the option, given his condition, to seek care at
a hospital with a cardiaccatheterizatioIi lab.
(Pages 27-28)
* **
The expert will likely testify that Dr. Arcoleo & Southampton
hospital had a duty and obligation to inform Mr. Downes that once
Dr. Arcoleo left the facility, no individual doctor would be
physically present on hospital grounds/campus to take care of Mr.
Downes. This information should have been relayed to Mr.
ue
Downes to allow him to make an informed decision regarding
remaining in the facility after 8:00 p.m. The failure to alertMr.
Downes that no physician would be physically present to take care
of him in the hospital after 8:00 p.m. W;lS a departure from
standards of good and accepted medical practice and deprived Mr.
vet
Downes of the option of receiving care at another hospital prior to
2
3 of 5
7
FILED: SUFFOLK COUNTY CLERK 09/21/2022
10/17/2022 12:58
03:03 PM INDEX NO. 001359/2009
NYSCEF DOC. NO. 29
31 RECEIVED NYSCEF: 09/21/2022
10/17/2022
Downes v Charles G. Arealeo, MD., et at.
Index No. 1359/2009
Page 3
Mr. DowneS acute coronary/ syndrome2reachingz a critical level.
This failure deprived1Mr. Downes3of a substantial ] opportunity for a
better medical outcome. In addition,; whento:the nurses could not
reach Dr. Patel after severall calls; Southamptononhospital, it's
nurses, agents and/orc employees 5 shouldI have givenl Mr Downes the
option to call an ambulancee himselff and be transferred t.o a facility
with both a catheterizationn lab) and :physiciansS who, were physically.
present in the hospital.
(Pages 28-29)
** *
The expert will likely 7testify7 that Dr. Patel,,Dr. Arcoleo and/or the
agents/servants of Southamptonn Hospital1had| a medical duty to
wa
S >
inform Mr. Downes of the limitations of their facility at the time.
The expert will likely Ttestify7that the4 failure,of Dr. Patel, Dr.
Arcoleoand/or the agents3and/orcemployees5 of Southampton
Downes3that they' did
Me
Hospital to inform Mr. not have a cardiac
catheterization lab onsite2was ;
a departure 3 fromL standards of good
and accepted medical1.practice>and was a proximatee cause arid/or
substantial contributinggfactor to the.delayin n diagnoses of Mr.
Downes' myocardiald infarction. Thiss delayr lead[ to the progression
and developmentit of°Mr. Downes3 myocardial1 infarction and
deprived him of a substantial1 chance; for a better medical Outcome.
The expert will likely T
testifyT
that all clinicians 3
have »
a duty to keep
patients reasonably informed1 not only' aboutt their conditions but
the limitations of the facility? in which1:the patientt is in. The expert
will likely testify, that when1Mr. Downess experienced an
arrhythmia, the cliniciansS at Southampton,\, including defendants,
Patel, Arcoleo & Southamptonn were: obligated1by standards of
good and accepted medical1 practice2to inform1Mr. Downes that a
cardiac cauterizationn lab| was not available>and| in the event of a
myocardial infarction1 that -
required 1 catheterizationNn:he would have
to be transferred to Stonyr Brook Hospital. . Withoutt this
information Mr. Downes 5was, essentiallyy uninformed about a real
potential clinical outcome2 in his4 case. The expertt may also testify
that when the on-calll cardiologist, , Dr. Patel,, did not return the
the; nurses,, includingz Nurse. Knight
\w
nurses's phone call were
obligated to inform Mr. Downes3that they could| not reach Dr.
Patel. The expert will[ likely7 testify’ thathad| Mr. Downes been
3
4 of 5
7
FILED: SUFFOLK COUNTY CLERK 09/21/2022
10/17/2022 12:58
03:03 PM INDEX NO. 001359/2009
NYSCEF DOC. NO. 29
31 RECEIVED NYSCEF: 09/21/2022
10/17/2022
Downes v Charles G. Areoleo, MD., et al.
Index No. 1359/2009
Page 4
informed about the ina~ility to have a cardiac catheterization
performed at Southampton and chose to leave or call for
emergency assistance, there is a substantial chance that Mr.
Downes would have avoided all or most of the damage to his heart
cause by the untimely diagnosed and treated myocardial infarction.
(Pages 36-38)
***
The expert will also likely testify that Mr. Downes was not kept
reasonably informed regarding his medical care and status and was
also not kept informed about the limitations of Southampton
Hospital and the risks to him if he were to stuff myocardial
uM
wa
infarction. Mr. Downes was not told at any time prior to reaching a
critical and unstable stage at or near 11:00 p.m. that he could or
would need a cardiac catheterization, that Southampton hospital
could not perform cardiac catheterizations and that no physician
would be physically present in the hospital and the nearest cardiac
catheterization laboratory that could treat Mr. Downes _ in the event
wa
of a full blown myocardial infarction. Patients should be kept
reasonably informed about the potential and foreseeable risks given
there presentation, medical history and the limitations and
eet
resources of a patients' treating facility. The failure of Dr. Patel,
Dr. Arcoleo, Southampton Hospital and it'sagents/employees
and/or nurses to keep Mr. Downes informed that no physician
would be present after 8:00 p.m. and in the event of a full blown
myocardial infarction necessary, emergent and vital treatment was
over an hour away at Stony Brook University Hospital. The failure
to keep Mr. Downes informed of the risks of his condition and the
limitations of Southampton hospital given both the lack of cardiac
we
catheterization laboratory and lack of physician presence once Dr.
Arcoleo leftthe hospital.
(Pages 47-48)
UM
The defendants argue that the plaintiffs are attempting to raise new theories of liability on
va
the eve of trial that were never previously alleged during the pendency of the litigation. More
specifically, the defendants claim that these theories of liability are not readily discernible from
the complaint, the bills of particulars and amendments and supplements thereto, and previous
expert witness disclosures .. The defendants urge that they will be substantially prejudiced if the
4
5 of 5
7
FILED: SUFFOLK COUNTY CLERK 09/21/2022
10/17/2022 12:58
03:03 PM INDEX NO. 001359/2009
NYSCEF DOC. NO. 29
31 RECEIVED NYSCEF: 09/21/2022
10/17/2022
sa
Downes v CharlesG. Areoleo, MD., et al.
Index No. 135912009
wl
PageS
te
plaintiffs are pefltlitted to advance these>newoT theories3at trial.
In opposition, the plaintiffs contend that .notice>of the aforestateddtheories5° of liabilityr is
apparent from the pleadings, or inthee alternative2there: is an absencex of7prejudice2 or surprise.
Finally, the plaintiffs claim that allegationsSsof negligence2 regarding3 defendantit Dr. Arcoleo for
failing to remain at the hospital and continue2to manage>and monitor, the plaintiffs condition1
should not be precluded because that theory of negligence2 was; disclosed}in the: January7 14,2014,L,
amended bills of particulars and in the September
- r 27,' 2021,’ supplemental/amended expert
wa
witness disclosure.
Based upon a review of the papers3submitted, , this Courtt concludes thattthe alleged
departures pertaining to the obligation1° of the defendants5to inform1the plaintiffs that,, in sum;; (1)
Southampton Hospital did not have a catheterization lab and| did not have the ability7to perform
cardiac catheterization; (2) once Dr. Arcoleo) left the hospital] no doctortcwould1be physicallyy
present to care for him; and (3) there: were, limitationsS as to care Southamptonn Hospital] could
of the7pleadings, 5S of particularss or expertt witness3notices3
vv
provide were not set forth in any bills
prior to the July 26, 2022; supplementalil amended witness3disclosure,', nor were: these2newr theories3
ws
; >
"readily discernible" from the allegations set forth in the billsof particulars or prior expert
wa
witness notices (see, generally, Navaretteegv Alexaides,‘, 50 AD3d1869 [2d Deptt 2008]).
ba
The Court notes that during the first trial,, on Novemberrt 8, 2021,, testimony was elicited
from the plaintiffs expert, Dr. Chang,sy on these, issues. ObjectionsS were: made, by defense>counsell
but the issue of whether the testimonyy shouldI have beenLstricken1as beyond the scope, of the
wa
pleadings and/or expert witness notice was not addressed.
Accordingly, the defendants' motions3to preClude the plaintiffs' 7 expertt from offeringx
testimony on "new theories of liability: is granted.
uw
The foregoing shall constitute2 the decision1and| Orderss of this Court.
DATED: September 21,2022
HON. rosy" A. SANTORELLI
J.S.C.
5
6 of 5
7
FILED: SUFFOLK COUNTY CLERK 10/17/2022 03:03 PM INDEX NO. 001359/2009
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/17/2022
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) ss. :
COUNTY OF NASSAU )
SAM File No.: 5606
Danielle Rooney, being duly sworn, deposes and says:
I am not a party to the action, am over 18 years of age and reside in Nassau County, State
of New York. That on October 17, 2022, I served the within
NOTICE OF ENTRY OF ORDER
by e-filing same to NYSCEF system for notification to all participating parties in this action with
names and address as follows:
TO:
Barbiero, Bisch & O’Connor, LLP
35 Pinelawn Road, Suite 127
Melville, NY 11747
Joseph M. Bisch, Esq.: jbisch@bbollp.com
Shaub Ahmuty Citrin Spratt
1983 Marcus Avenue, #260
New Hyde Park, NY 11042
Jason Corrado, Esq.: jcorrado@sacslaw.com
Perry, Van Etten, Rozanski & Kutner, LLP
225 Broadhollow Rd, Suite 430
Melville, NY 11747
Geoffrey Pforr, Esq.: gpforr@pvrklaw.com
/s/ Danielle Rooney
Danielle Rooney
Sworn to before me on
October 17, 2022
/s/ Simran Multani
NOTARY PUBLIC
7 of 7
Preview
FILED: SUFFOLK COUNTY CLERK 10/17/2022 03:03 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/17/2022 5606 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------X Index No.: 001359/2009 DENNIS DOWNES and JANE DOWNES, NOTICE OF ENTRY Plaintiff, -against- CHARLES G. ARCOLEO, M.D., RAJOO C. PATEL, M.D., SOUTHAMPTON HOSPITAL, and SOUTHAMPTON HOSPITAL ASSOCIATION,, Defendants. -------------------------------------------------------------X PLEASE TAKE NOTICE, that the within is a true copy of an Order duly entered in the Office of the Clerk of the within named Court on September 21, 2022. Dated: Garden City, New York October 17, 2022 Yours truly, _______________________________ Michael Lauterborn Esq. Silberstein, Awad & Miklos, P.C. 600 Old Country Road Suite 505 Garden City, NY 11530 S.A.M. File No.: 5606 1 of 7 FILED: SUFFOLK COUNTY CLERK 09/21/2022 10/17/2022 12:58 03:03 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 29 31 RECEIVED NYSCEF: 09/21/2022 10/17/2022 INDEXNo. 135912009 CAL No. 201802045MM Ww SUPREME COURT - STATE OF NEW 7 YORK LA.S. PART 10 - SUFFOLK COUNTY PRESENT:NT: | Hon. JOSEPH A. SANTORELLI w Justice of the Supreme Court -----------------------------------------------~------------------------- X DENNIS}DOWNES5 and| JANEpiDOWNES, MICHAEL LAUTERBORN,N, ESQ. Attorneyssor > for Plaintiffs5 600) OLD) COUNTRY Y RD.,y STE. 412 Plaintiffs, • GARDENq CITY, NY. 11530) -against- PERRY,; VANI ETTEN,I, ROZA"t-JSKI, KUTNERLLPuP . A ttorneyssor for Defendant . it CHARLES5 G. ARCOLEO,), q M.D., . CharlesS A. Arcoleo, M.D. RAJOO ) C. PATEL, 3 MD., > 225) BROADHOLLOWW ROAD SUITE 430 ROBERT* O'LEMP,) > PA, y Melville, NY 11747 ALAN M. GANDOLFI, MD, 24/7 EMERGENCY CARE, PC, SHAUB3 AHMUTY CITRINq SPRATT AttorneysSsforr Defendantut SOUTHAMPTON HOSPITAL and KajofC. Patel, MD SOUTHAMPTON HOSPITAL ASSOCIATION, 1983 Marcus 5 Avenue Lake Success, NY 11042’ Defendants. ., BARBIERO, BISCH & O'CONNOR, LLP AttorneysforOrDefendants‘s Southampton - n Hospitaldod and Southampton Hospitalq Association 35 PINELA\ WN ROAD) SUITE 127 MELVILLE, NY 11747' ----------------------------------------------~-'-.;.-'---------.;.-----'---.;.--- X ws In this action to recover damages for medical malpractice& defendantsS Charles Arcoleo, M.D., Rajoo C. Patel, M.D., Southampton Hospital and Southampton Hospital Association move US va for an order precluding the plaintiff s expert from proffering testimony on what is being ~ je wa characterized as "new theories of liability". The plaintiff opposes these applications in all respects. By way of background, the first trialof this matter ended in a mistrial on November 9, 2021, due to juror misconduct. At the point the mistrial was declared the plaintiffs cardiology 1 2 of 5 7 FILED: SUFFOLK COUNTY CLERK 09/21/2022 10/17/2022 12:58 03:03 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 29 31 RECEIVED NYSCEF: 09/21/2022 10/17/2022 Downes v Charles G. Areoleo, MD., et al. Index No. 1359/2009 Page 2 expert, Dr. James Chang, was testifying. On or about July 26, 2022, the plaintiff served a "SUPPLEMENTAL AMENDED EXPERT WITNESS DISCLOSURE," which is so far as relevant to these motions, "added" the ust vo a] following departures along with claims of probable cause of the plaintiff s injuries and the loss of a substantial chance for a better outcome: The expert will likely testify that all patients have a right to be kept informed about their clinical/medical circumstances as well as the limitations of the treating facility. All physicians, nurses and hospitals have a medical duty to keep a patient reasonably apprised of their medical condition as well as the resources of the hospital/facility should a need for further treatment apply. In 2006 Southampton hospital did not have a catheterization lab and did not have the ability to perform cardiac catheterization. The eXpert will likely testify that under the circumstances of Mr. Downes presentation to Southampton hospital. Dr. Patel, Dr. Arcoleo and lor Southampton hospital, its agents, employees and/or nurses had an obligation to inform Mr. Downes that if the need arose to perform cardiac catheterization they would be unable to do so; The expert will also likely testify that the failure to inform Mr. Downes that Southampton hospital did not have a cardiac catheterization. lab and provide him the option, given his condition, to seek care at a hospital with a cardiaccatheterizatioIi lab. (Pages 27-28) * ** The expert will likely testify that Dr. Arcoleo & Southampton hospital had a duty and obligation to inform Mr. Downes that once Dr. Arcoleo left the facility, no individual doctor would be physically present on hospital grounds/campus to take care of Mr. Downes. This information should have been relayed to Mr. ue Downes to allow him to make an informed decision regarding remaining in the facility after 8:00 p.m. The failure to alertMr. Downes that no physician would be physically present to take care of him in the hospital after 8:00 p.m. W;lS a departure from standards of good and accepted medical practice and deprived Mr. vet Downes of the option of receiving care at another hospital prior to 2 3 of 5 7 FILED: SUFFOLK COUNTY CLERK 09/21/2022 10/17/2022 12:58 03:03 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 29 31 RECEIVED NYSCEF: 09/21/2022 10/17/2022 Downes v Charles G. Arealeo, MD., et at. Index No. 1359/2009 Page 3 Mr. DowneS acute coronary/ syndrome2reachingz a critical level. This failure deprived1Mr. Downes3of a substantial ] opportunity for a better medical outcome. In addition,; whento:the nurses could not reach Dr. Patel after severall calls; Southamptononhospital, it's nurses, agents and/orc employees 5 shouldI have givenl Mr Downes the option to call an ambulancee himselff and be transferred t.o a facility with both a catheterizationn lab) and :physiciansS who, were physically. present in the hospital. (Pages 28-29) ** * The expert will likely 7testify7 that Dr. Patel,,Dr. Arcoleo and/or the agents/servants of Southamptonn Hospital1had| a medical duty to wa S > inform Mr. Downes of the limitations of their facility at the time. The expert will likely Ttestify7that the4 failure,of Dr. Patel, Dr. Arcoleoand/or the agents3and/orcemployees5 of Southampton Downes3that they' did Me Hospital to inform Mr. not have a cardiac catheterization lab onsite2was ; a departure 3 fromL standards of good and accepted medical1.practice>and was a proximatee cause arid/or substantial contributinggfactor to the.delayin n diagnoses of Mr. Downes' myocardiald infarction. Thiss delayr lead[ to the progression and developmentit of°Mr. Downes3 myocardial1 infarction and deprived him of a substantial1 chance; for a better medical Outcome. The expert will likely T testifyT that all clinicians 3 have » a duty to keep patients reasonably informed1 not only' aboutt their conditions but the limitations of the facility? in which1:the patientt is in. The expert will likely testify, that when1Mr. Downess experienced an arrhythmia, the cliniciansS at Southampton,\, including defendants, Patel, Arcoleo & Southamptonn were: obligated1by standards of good and accepted medical1 practice2to inform1Mr. Downes that a cardiac cauterizationn lab| was not available>and| in the event of a myocardial infarction1 that - required 1 catheterizationNn:he would have to be transferred to Stonyr Brook Hospital. . Withoutt this information Mr. Downes 5was, essentiallyy uninformed about a real potential clinical outcome2 in his4 case. The expertt may also testify that when the on-calll cardiologist, , Dr. Patel,, did not return the the; nurses,, includingz Nurse. Knight \w nurses's phone call were obligated to inform Mr. Downes3that they could| not reach Dr. Patel. The expert will[ likely7 testify’ thathad| Mr. Downes been 3 4 of 5 7 FILED: SUFFOLK COUNTY CLERK 09/21/2022 10/17/2022 12:58 03:03 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 29 31 RECEIVED NYSCEF: 09/21/2022 10/17/2022 Downes v Charles G. Areoleo, MD., et al. Index No. 1359/2009 Page 4 informed about the ina~ility to have a cardiac catheterization performed at Southampton and chose to leave or call for emergency assistance, there is a substantial chance that Mr. Downes would have avoided all or most of the damage to his heart cause by the untimely diagnosed and treated myocardial infarction. (Pages 36-38) *** The expert will also likely testify that Mr. Downes was not kept reasonably informed regarding his medical care and status and was also not kept informed about the limitations of Southampton Hospital and the risks to him if he were to stuff myocardial uM wa infarction. Mr. Downes was not told at any time prior to reaching a critical and unstable stage at or near 11:00 p.m. that he could or would need a cardiac catheterization, that Southampton hospital could not perform cardiac catheterizations and that no physician would be physically present in the hospital and the nearest cardiac catheterization laboratory that could treat Mr. Downes _ in the event wa of a full blown myocardial infarction. Patients should be kept reasonably informed about the potential and foreseeable risks given there presentation, medical history and the limitations and eet resources of a patients' treating facility. The failure of Dr. Patel, Dr. Arcoleo, Southampton Hospital and it'sagents/employees and/or nurses to keep Mr. Downes informed that no physician would be present after 8:00 p.m. and in the event of a full blown myocardial infarction necessary, emergent and vital treatment was over an hour away at Stony Brook University Hospital. The failure to keep Mr. Downes informed of the risks of his condition and the limitations of Southampton hospital given both the lack of cardiac we catheterization laboratory and lack of physician presence once Dr. Arcoleo leftthe hospital. (Pages 47-48) UM The defendants argue that the plaintiffs are attempting to raise new theories of liability on va the eve of trial that were never previously alleged during the pendency of the litigation. More specifically, the defendants claim that these theories of liability are not readily discernible from the complaint, the bills of particulars and amendments and supplements thereto, and previous expert witness disclosures .. The defendants urge that they will be substantially prejudiced if the 4 5 of 5 7 FILED: SUFFOLK COUNTY CLERK 09/21/2022 10/17/2022 12:58 03:03 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 29 31 RECEIVED NYSCEF: 09/21/2022 10/17/2022 sa Downes v CharlesG. Areoleo, MD., et al. Index No. 135912009 wl PageS te plaintiffs are pefltlitted to advance these>newoT theories3at trial. In opposition, the plaintiffs contend that .notice>of the aforestateddtheories5° of liabilityr is apparent from the pleadings, or inthee alternative2there: is an absencex of7prejudice2 or surprise. Finally, the plaintiffs claim that allegationsSsof negligence2 regarding3 defendantit Dr. Arcoleo for failing to remain at the hospital and continue2to manage>and monitor, the plaintiffs condition1 should not be precluded because that theory of negligence2 was; disclosed}in the: January7 14,2014,L, amended bills of particulars and in the September - r 27,' 2021,’ supplemental/amended expert wa witness disclosure. Based upon a review of the papers3submitted, , this Courtt concludes thattthe alleged departures pertaining to the obligation1° of the defendants5to inform1the plaintiffs that,, in sum;; (1) Southampton Hospital did not have a catheterization lab and| did not have the ability7to perform cardiac catheterization; (2) once Dr. Arcoleo) left the hospital] no doctortcwould1be physicallyy present to care for him; and (3) there: were, limitationsS as to care Southamptonn Hospital] could of the7pleadings, 5S of particularss or expertt witness3notices3 vv provide were not set forth in any bills prior to the July 26, 2022; supplementalil amended witness3disclosure,', nor were: these2newr theories3 ws ; > "readily discernible" from the allegations set forth in the billsof particulars or prior expert wa witness notices (see, generally, Navaretteegv Alexaides,‘, 50 AD3d1869 [2d Deptt 2008]). ba The Court notes that during the first trial,, on Novemberrt 8, 2021,, testimony was elicited from the plaintiffs expert, Dr. Chang,sy on these, issues. ObjectionsS were: made, by defense>counsell but the issue of whether the testimonyy shouldI have beenLstricken1as beyond the scope, of the wa pleadings and/or expert witness notice was not addressed. Accordingly, the defendants' motions3to preClude the plaintiffs' 7 expertt from offeringx testimony on "new theories of liability: is granted. uw The foregoing shall constitute2 the decision1and| Orderss of this Court. DATED: September 21,2022 HON. rosy" A. SANTORELLI J.S.C. 5 6 of 5 7 FILED: SUFFOLK COUNTY CLERK 10/17/2022 03:03 PM INDEX NO. 001359/2009 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 10/17/2022 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss. : COUNTY OF NASSAU ) SAM File No.: 5606 Danielle Rooney, being duly sworn, deposes and says: I am not a party to the action, am over 18 years of age and reside in Nassau County, State of New York. That on October 17, 2022, I served the within NOTICE OF ENTRY OF ORDER by e-filing same to NYSCEF system for notification to all participating parties in this action with names and address as follows: TO: Barbiero, Bisch & O’Connor, LLP 35 Pinelawn Road, Suite 127 Melville, NY 11747 Joseph M. Bisch, Esq.: jbisch@bbollp.com Shaub Ahmuty Citrin Spratt 1983 Marcus Avenue, #260 New Hyde Park, NY 11042 Jason Corrado, Esq.: jcorrado@sacslaw.com Perry, Van Etten, Rozanski & Kutner, LLP 225 Broadhollow Rd, Suite 430 Melville, NY 11747 Geoffrey Pforr, Esq.: gpforr@pvrklaw.com /s/ Danielle Rooney Danielle Rooney Sworn to before me on October 17, 2022 /s/ Simran Multani NOTARY PUBLIC 7 of 7