Opinion
111626/02.
Decided August 31, 2010.
Denise M. Dunleavy, Esq., Jonathan R. Ratchik, Esq., Kramer Dunleavy, Esqs., New York, NY, Attorneys for Plaintiff.
Stuart Bernstein, Esq., Callan, Koster, Brady Brennan, LLP, New York, NY, Attorney for Defendant.
Before this Court is a motion by defendant Dr. Daniel Turk Williams for summary judgment on his behalf pursuant to CPLR § 3212, or alternatively to dismiss the action pursuant to CPLR § 3211(a) (7). Defendant further seeks to stay all depositions until this motion is decided.
Dr. Williams is an extremely well-credentialed psychiatrist. In the period from September 1992 through May 1994, he provided psychiatric treatment to Richard Djeddah. Richard Djeddah is the father of the plaintiff Esteevered Djeddah.
In an affidavit by Dr. Williams attached to this motion and forming the basis for it, he states that the only Djeddah family member for whom he ever provided care and treatment was Richard. He says that a review of his records confirms that fact. While acknowledging that during the course of Richard's treatment he met with Esteevered (whose date of birth is xx/xx/1981, making her between ten and twelve years old during this time), he says that these meetings were in the furtherance of Richard's treatment. He also states that when it became evident to him that Esteevered needed her own counseling, he recommended that she go and see a child psychiatrist, Dr. Jerome Liebowitz.
That is the entirety, in substance, of his affidavit. It does not address in any way the claims being made in this 2002 complaint, which now consists of one cause of action, the second having been withdrawn during oral argument on this motion on August 12, 2010. The remaining claim, in its essence, is that during the period of Richard's treatment, Dr. Williams committed medical malpractice by having taken no steps in response to repeated complaints to him by Esteevered and others that physical, sexual and emotional abuse was occurring between Richard and his daughter. Dr. Williams is charged with, among other things, failing to advise Child Protective Services of the abusive conduct, as well as failing to report this conduct to other law enforcement authorities.
Since one could infer from the words used in the complaint, particularly paragraphs 6, 7 and 10, that plaintiff claims that she too was a patient of Dr. Williams, it is understandable that the basis of the motion before the Court is the insistence that, in fact, there was no malpractice because, in the first instance, there was no doctor/patient relationship. Therefore, that is the thrust of the defendant's affidavit, as well as the thrust of the affidavit of Dr. Steven Fayer submitted as defendant's Exhibit Q. He is also a Board Certified Psychiatrist who is now an attending physician in the Department of Psychiatry at Mount Sinai Medical Center in New York City. He also sees private patients.
Dr. Fayer states that because of his own wide experience in meeting with and treating hundreds of family members in the course of treating patients, he is knowledgeable about how or when a doctor/patient relationship exists. He also has reviewed many of the records in this lawsuit, including the deposition testimony given by the plaintiff in the course of a different proceeding (one instituted against Dr. Liebowitz).
Dr. Fayer's opinion (at ¶ 10) is that plaintiff's claim that Dr. Turk "allegedly failed to timely detect, discover, diagnose, consider, evaluate, treat and manage the plaintiff's psychiatric condition is without any merit." The doctor bases this opinion on Ms. Djeddah's deposition testimony and Dr. Williams' affidavit, which he says are consistent in that both agree that no doctor/patient relationship existed between the two.
However, this deposition testimony which Dr. Fayer appears to be relying on is far from clear on this point. The EBT was conducted on October 25, 2006 and Ms. Djeddah, a plaintiff, was questioned by counsel for Dr. Liebowitz. The following relevant exchanges occurred on the designated pages, attached as Exhibit K to the motion.
Page 23:Q.When did you treat with Dr. Williams?
A.I don't — I went into his office many times, but I believe he was treating my father.
There was a follow-up question and then the Answer:
A.I don't know what you mean by treating.
Then on page 24:
A.No, I don't understand if you mean treatment as family treatment or personal.
(Note: during this period, Esteevered was 10-11 years old).
Q.No, you. Did he bring you into the office; "hi Estee, sit down, tell me all your problems alone."
A.Yes.
Then on pages 221-222:
Q.Okay. Now, when did you treat with Dr. Williams?
A.I don't know the dates.
Q.Okay, I'm going to ask you flat out. Are you positive that you treated personally with Dr. Williams?
A.That he saw me in his office.
A few questions later on pages 222-223:
Q. — did you know him as your father's doctor or did you think he was your doctor?
A.I knew him as my father's doctor.
Q.You got interviewed by him, you think that was in connection with your father's treatment?
A.Yes.
Q.Now, how many times were you at Dr. Williams' office?
A.I have no idea.
Q.Okay. How many times were you interviewed by him?
A.He spoke to me about the family, what's going on in the house on more than one occasion.
Based on the deposition, Dr. Fayer further opines (at ¶ 12) "that Dr. Williams could not and did not deviate from good and accepted medical practice with regard to his interactions with the plaintiff."
But, Dr. Fayer never really elaborates on his conclusions, particularly as to the claim that Dr. Williams was told about instances of abuse by Richard against his daughter, but did not report them or appropriately respond to them. In fact, the only time Dr. Fayer even deals with this aspect of the complaint is in his own paragraph 17, when he refers to records from the New York State Department of Social Services and specifically to a letter of February 9, 1994 wherein it was found that allegations of abuse were "unfounded". That letter is addressed to Richard Djeddah and it informs him that "no credible evidence was found that the child(ren) named in this report has been abused or maltreated." This is obviously a form letter. But more important, as pointed out in the opposition papers to the motion, no other part of the Social Services records are available today so no one now has any real idea what the scope of the investigation was, which people were interviewed, and what they said. Finally, because no one knows any details of the investigation, the form letter does not compel the conclusion reached by Dr. Fayer (at ¶ 17) that "plaintiff's allegation of not reporting alleged child abuse is without merit as such allegations were in fact reported to the authorities and determined to be unfounded."
The opposition contains an affidavit from the plaintiff, Esteevered Djeddah. It also includes an affidavit from their unidentified psychiatric expert, Board Certified in Psychiatry, Adolescent Psychiatry and Forensic Psychiatry. He now is associated with Beth Israel Hospital in Boston and McLean Hospital in Belmont and teaches as a Clinical Instructor in Psychiatry at Harvard Medical School. All of these institutions are in Massachusetts.
Based on the above, counsel for Ms. Djeddah argues three points. Without conceding that defendant, in his moving papers, has made out a prima facie case (in fact he argues that he has not), he urges that Dr. Williams committed malpractice by failing to report allegations of plaintiff's physical and sexual abuse, and violated New York's mandatory reporting statute (Social Services Law §§ 413 et seq.) by knowingly failing to report such allegations to Child Protective Services. He also argues that denial of the motion is warranted because defendant has not even been deposed here, nor did he explicitly deny or even deal with the claims against him in his affidavit. Such discovery is absolutely critical, counsel urges.
In Ms. Djeddah's affidavit, she goes into detail into what she recalls as her relationship with Dr. Williams between 1992 and 1994. She states that she saw him in his office between 10 and 20 times and that each visit lasted about 20-30 minutes. During most of the visits, she saw the defendant alone. She also says the following:
Given my age at the time (between ten and twelve years old), I reasonably believed that Dr. Williams was my doctor, that I could place my trust and confidence in him, and that he would act in my best interests.
Ms. Djeddah states as well that she reported to Dr. Williams numerous times instances of physical abuse by his patient, her father, Richard. Additionally, she states that she told the defendant on at least two occasions that her father had sexually abused her.
On this important issue of telling the defendant about instances of sexual abuse, Ms. Djeddah draws attention to her October 25, 2006 deposition and says now that on reflection, it was inaccurate. This is what she said at the EBT on pages 145-146.
Q.Prior to telling Dr. Liebowitz about your father's alleged sexual assault, did you ever tell any other health care provider about your father's alleged sexual misconduct?
A.I don't believe so, no.
Ms. Djeddah states now that she does recall that during her visits with Dr. Williams, she did report to him about her father's physical and sexual abuse.
Also included in the opposition are certain portions of Richard Djeddah's medical records with the defendant. These records do reveal that there were allegations made against Richard of physical and sexual abuse vis-a-vis his daughter.
In reply and at oral argument, counsel for the defendant strongly complained about the inclusion of those records. He argued they were not admissible, even at this stage of the proceeding, as they were neither certified nor, as far as he knew, authorized to be revealed by Richard. All of this may be true and at a trial, such a ruling on admissibility may be made. However, it is absolutely clear to me that these records are relevant to the issues here. Further, Dr. Williams in his affidavit refers to them as corroborating his belief that he was solely Richard's doctor. The defendant cannot have it both ways, using the records which he has reviewed to support his view and objecting to these records when they arguably reveal other detrimental things. In fact, the day after oral argument, I signed a subpoena for these records, which I said I would do.
The expert for the plaintiff, who reviewed all of the records, as well as interviewing the plaintiff twice, expressed his opinion that Dr. Williams did depart from accepted practices of medicine and did violate New York State reporting statutes by failing to report to the authorities allegations of physical and sexual abuse of Esteevered by her father Richard. This doctor states that under the law, as well as pursuant to the duty a physician has, if there is reasonable cause to suspect a case of physical or sexual abuse, it must be reported to the appropriate investigatory agency. Even if Dr. Williams did not believe the allegations, that is "immaterial to the issue of whether he had reasonable cause to suspect abuse and was thus obligated to report the allegations of abuse to the appropriate investigatory agency." (Paragraph 13).
After giving these opinions, this doctor then describes (at ¶ 14) from his interviews with Ms. Djeddah what effect he believes Dr. Williams' failure to report had on her. He believes that she "has been and continues to be profoundly affected both psychologically and in her function because defendant Williams failed to report the ongoing physical and sexual abuse suffered by her".
In Reply, counsel objects, as stated earlier, to the use of Richard's records. He also argues that the plaintiff and her expert have essentially conceded that no doctor/patient relationship existed. But most significantly, he accuses the plaintiff of submitting a patently self-serving affidavit on the subject of what she told the defendant doctor. He urges that on those grounds, I should reject her affidavit. Finally, he argues that the insufficiency of the opposition, as well as its self-serving quality, should lead to a granting of the motion.
However, I disagree on virtually all of these points. First, it should be emphasized that defendant's motion, in its main thrust, was on the issue of the existence or not of a doctor/patient relationship between Esteevered Djeddah and Dr. Daniel Williams. There was little discussion of what was told to Dr. Williams. Now in Reply it has become a major point. But it must be remembered that Dr. Williams has never been deposed here, nor given the opportunity to be questioned in this regard. That must occur. At this point, I find there is enough to believe that such complaints may well have been made to the defendant. And I say this based on the doctor's records, as well as the current affidavit by Esteevered.
Contrary to what counsel argues, I do not find that the somewhat equivocal, far from absolute, statement on this issue made in the October 2006 deposition directly contradicts and is at odds with the present statement, self-serving though the latter obviously is. It must be remembered that the October 2006 examination, with a transcript of 200 plus pages, was focusing on Dr. Liebowitz, not Dr. Williams. Further, the actual events in question occurred in 1992-1994 when the plaintiff was a child.
On the issue of the existence of a doctor/patient relationship, I find that it still remains a viable issue. Certainly, Dr. Williams primarily treated Richard, but the number of visits with his daughter alone and the content of those visits could allow a finder of fact to find that there was enough to establish a duty inherent in such a relationship, despite any technical characterization that the visits were simply to aid in the care and treatment of Richard.
And finally, a jury could certainly find that, irrespective of the existence of a formal treatment relationship between the parties here, Dr. Williams did have a duty to report complaints of physical and sexual abuse, if he were informed of same and had reason to believe they occurred.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment or to dismiss is denied in its entirety, and counsel shall proceed forthwith with discovery.