Orner v. The Mt. Sinai Hosp.

Orner v Mount Sinai Hosp.

2003 NYSlipOp 14428

Decided on May 27, 2003

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 27, 2003

Tom, J.P., Sullivan, Ellerin, Marlow, Gonzalez, JJ.
173N- 174N







Philip Orner

Steven C. Mandell

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on
or about December 24, 2001, which, to the extent appealed from as limited by
plaintiff’s brief, denied plaintiff’s motion for further depositions of
defendant Dr. Lichtiger and pathologist Dr. Klein, and granted defendants’ cross
motion for an order of protection preventing the production of certain job
performance evaluations by defendant The Mount Sinai Hospital, unanimously
reversed, on the law and the facts, without costs, plaintiff’s motion for
further depositions of Dr. Lichtiger and Dr. Klein granted, and such depositions
to be held before a Special Referee, and defendants’ cross motion denied to the
extent that defendants are directed to produce job evaluations for Mr. Antonio
and Dr. Hoon. Order, same court and Justice, entered June 3, 2002, which, to the
extent appealed from as limited by plaintiff’s brief, denied plaintiff’s further
request for certain discovery which had been previously denied and which denied
plaintiff’s request for decedent’s medical records, unanimously modified, on the
law and the facts, to the extent that defendants are directed to either produce
all requested medical records in defendant hospital’s possession or provide an
affidavit from a witness with knowledge about the unavailability of medical
records, to be specifically delineated by plaintiff, which records, if found
prior to trial, defendants shall be precluded from using, except at plaintiff’s
option, and as so modified, the order affirmed, without costs.

In this medical malpractice action, plaintiff Mina Orner alleges that
defendants failed to diagnose colon cancer during a March 17, 1993 colonoscopy
performed on her husband, the decedent Moises Orner, by defendant Dr. Lichtiger
at The Mount Sinai Hospital (defendant hospital). Plaintiff claims that the
[*2]decedent was not diagnosed with colon cancer
until early 1994, and he died several weeks later. Defendants maintain that the
decedent died from an unrelated cancer.

Although this case was commenced in 1995, due to inaction by plaintiff’s
prior attorneys, reassignment of the case to plaintiff’s son, who is clearly
inexperienced in medical malpractice actions, duplicative discovery requests by
plaintiff, acrimonious discovery disputes and delays occasioned principally by
defendants, and the assignment of this case to three different judges, discovery
has not yet been completed.

On appeal, plaintiff argues that she is entitled to certain discovery, which
the motion court has already granted to her ^[FN1]. As for the issues properly before us, we find
the court erred in denying plaintiff’s request for further depositions of
defendant Dr. Lichtiger and pathologist Dr. Klein, on the ground that certain
questions posed to them were palpably irrelevant or not in proper form ^[FN2]. Contrary to defendants’ contention, the
substantive questions relating to the expert opinions of the [*3]witnesses and the status of generally accepted
community standards of medical practice were appropriate (see
McDermott v Manhattan Eye, Ear & Throat Hospital, 15 NY2d 20;
Johnson v New York City Health & Hospitals Corp., 49 AD2d 234, 236).
Accordingly, it was not plaintiff’s questions, but rather the defense counsel’s
instructions to the witnesses not to respond and his otherwise inappropriate and
excessive interference, which were improper. Indeed, “the evidentiary scope of
an examination before trial is at least as broad as that applicable at the trial
itself” (Johnson, 49 AD2d at 237). Consequently, when faced with
objections at a deposition, “the proper procedure is to permit the witness to
answer all questions subject to objections in accordance with CPLR ? 3115″
(White v Martins, 100 AD2d 805).

Furthermore, general background questions, such as date of birth, marital
status, board certification, and experience testifying as an expert in court,
are routinely permitted at trial, and defense counsel improperly, and, it
appears at times disingenuously, objected, interrupted and occasionally directed
his witnesses not to answer these and other questions. That some of plaintiff’s
counsel’s questions were inartful or otherwise imperfect did not give defense
counsel license to react impatiently nor interfere as he did. A complete reading
of the depositions reveals that defense counsel’s attitude toward plaintiff’s
counsel was sardonic and unprofessional which, in turn, fostered an
uncooperative attitude from defendants’ witnesses. Indeed, “[d]efendants’
counsel, in ordering his clients not to respond during depositions to
questioning in areas which counsel unilaterally deemed to be irrelevant, and in
continually objecting to matters other than form *** effectively thwarted
plaintiffs’ efforts to depose defendants” (Levine v Goldstein, 173 AD2d
346). We take this opportunity to express our regret that we are placed in the
position of having to refer to these and other such fundamental principles of
procedure and professional civility to an experienced defense lawyer.

Further depositions will undoubtedly result in the same chaos, acerbity and
delay. Accordingly, we direct that these depositions be conducted before a
Special Referee. Similarly, all remaining discovery exchanges are to be
conducted before or with the assistance of a Special Referee.

As the motion court already determined, plaintiff is entitled to the
decedent’s complete medical records, including billing records, from Dr.
Lichtiger and defendant hospital. [*4]However,
defendants have claimed that they do not possess these records. Consequently,
plaintiff is “entitled to a detailed statement, made under oath, by [a person]
with direct knowledge of the facts as to the past and present status of the
sought documents” (Longo v Armor Elevator Co., Inc., 278 AD2d 127, 129).
Defendants shall be precluded from using these records at trial if they are
found prior to trial, except at plaintiff’s option.

The motion court erred in finding that the job performance evaluations of Mr.
Antonio and Dr. Hoon were not subject to discovery under the privileges afforded
by the Education Law
and Public Health Law ^[FN3]. However, the privileges afforded by these
statues are not applicable here. The Education Law exempts from disclosure
“records relating to performance of a medical or a quality assurance review
function” (Education Law ? 6527(3); see also Megrelishvili v
Our Lady of Mercy, 291 AD2d 18, 25, lv dismissed 99 NY2d 532).
Similarly, the privilege afforded under the Public Health Law is intended to
protect “‘against disclosure of materials relating to quality assurance
activities [which] apply to hospital malpractice prevention programs and
incident reporting'” (Logue v Velez, 92 NY2d 13, 17, quoting L 1986, ch
266, Bill Jacket, Governor Program Bill, at 7). Since defendant hospital has not
alleged that these job performance evaluations were used by a hospital review
committee, they are not protected from disclosure (see Van Caloen v
Poglinco, 214 AD2d 555, 557; see also Bush v Dolan, 149
AD2d 799, 800 [since the purpose of the exemption is to encourage hospitals to
review the shortcomings of their physicians, it would be counterproductive to
apply the exemption in a case where a hospital never undertook such a review]).

An award of costs and sanctions is discretionary (see Matter of
Winkelman v Furey, 97 NY2d 711). We cannot say based on this record ? given
plaintiff’s penchant for repeatedly requesting discovery items which have
already been ruled on and the obstructionist behavior by both sides in
conducting discovery ? that the motion court improvidently exercised its
discretion in [*5]denying plaintiff’s request for
costs and sanctions.

Finally, we have considered and rejected defendants’ contention that the
orders are not appealable as of right.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 27, 2003

CLERK

Footnote 1:Apparently, plaintiff believes that an appeal
affords a party the opportunity to repeat requests which have been favorably
ruled upon and not to argue errors of law or fact. This type of sloppy appellate
practice wastes this Court’s time. For example, and merely by way of
illustration, plaintiff requests on appeal that defendant hospital provide job
evaluations for Frank Rivera. However, the motion court granted this request.
Plaintiff also requests an affidavit by defendants which explains the
relationship between Dr. Kreel and defendant hospital. However, this request has
been rendered moot because the motion court granted plaintiff permission to
subpoena Dr. Kreel for a non-party deposition, at which time her relationship
with defendant hospital may be explored to plaintiff’s content. Plaintiff also
requests on appeal a deposition of a proper authorized officer of defendant
hospital who could identify names and initials of individuals who assisted in
the diagnosis and treatment of the decedent. Again, the motion court granted
this request.

Footnote 2:Plaintiff also argues that the court erred in
denying a further deposition of Myrna Constantino, the administrator of the
Department of Pathology at defendant hospital. However, the motion court found
that plaintiff’s request for this relief had already been ruled upon. As such,
plaintiff’s request before the motion court on this particular issue was for, in
effect, reargument, the denial of which is not appealable (see
Lichtman v Mount Judah Cemetery, 269 AD2d 319, 320).

Footnote 3:Although defendants argue on appeal that
plaintiff never asserted a cause of action for negligent hiring and therefore
these job performance evaluations are not discoverable, defendants’ objection
before the motion court was that the records sought were privileged.