Opinion
2007/7541.
Decided September 10, 2010.
ROSANNE M. GUGINO, ESQ., for Plaintiff.
KATHLEEN SWEET, ESQ., for Defendants Kurss, M.D., and Women's Wellness Center.
MEGHANN N. ROEHL, ESQ., for Defendants Weissman, M.D., and Samuel Weissman, M.D., P.C.
BETSY FINNERTY, ESQ., for Defendants Neri, M.D., and Creekside OB/GYN.
MATTHEW J. BATT, ESQ., for Defendant Kaleida Health d/b/a Millard Fillmore Suburban Hospital.
Plaintiff Crista A. Grisanti commenced this action in August 2007, seeking to recover damages for acts of negligence/medical malpractice allegedly committed by defendants in the course of their care and treatment of herself and her infant daughter Ava Panek, born xx/xx/2005. The named defendants include the obstetrician who provided prenatal care during plaintiff's pregnancy with Ava (Dr. Kurss of Women's Wellness Center); the physician who was supposed to have delivered the child on account of Dr. Kurss' unavailability (Dr. Weissman); the physician who actually performed the delivery by emergency C-section in the absence of Dr. Weissman (Dr. Neri of Creekside OB/GYN) and the operator of the hospital where that delivery took place (Kaleida Health). Plaintiff's claim is that defendants, including those physicians who were not present during the labor and delivery but who nonetheless were allegedly involved in it, such as by allegedly giving a certain medical order over the telephone (Dr. Weissman and Dr. Kurss each suggest that the other gave the order), were negligent in failing to manage plaintiff's labor, in erroneously administering Pitocin, and in delaying in responding to a condition of placental separation.
Before this Court are motions arising out of two discrete disclosure issues. The first involves plaintiff's denial of the various defendants' requests for the provision of HIPAA-compliant authorization permitting defendants to obtain copies of all "medical records and films" of, but more importantly permitting defendants to speak to, a certain physician, as yet not identified by plaintiff, who examined the infant on two occasions, i.e., on December 23, 2006 (when Ava was about 23 months old) and on April 3, 2010 (when Ava was five years old). Although defendants in their motion variously characterize that unidentified physician, a pediatric neurologist, as either a "treating" physician or a "treating and examining" physician, the Court sees no basis on this record for the physician to be characterized as anything other than an examining physician. The second disclosure issue at bar arises out of the conduct of the examinations before trial (EBTs) noticed by plaintiff of two of the physician-defendants, Dr. Kurss and Dr. Weissman. Thus, the Court is presented with the following requests for relief:
1. Motions by three sets of defendants, joined in by a forth set of defendants, to compel plaintiff to provide the aforementioned HIPAA-compliant "speaking" authorizations with regard to the aforementioned examining neurologist; and
2. Plaintiff's cross motion to compel Dr. Kurss and Weissman to each submit to a further EBT at which each will be directed to answer various questions that they were advised by their respective attorneys not to answer at the prior EBT, as well as any other questions that might flow therefrom. Both motions are opposed by the other side. On the basis of the parties' submissions, this Court renders the following determinations:
ISSUE OF THE SPEAKING MEDICAL AUTHORIZATIONS :
As indicated supra, the Court sees no basis for any characterization of the neurologist as a treating physician. The Court notes that both examinations of the infant by that neurologist were conducted at the behest of plaintiff's counsel. The Court further notes that at least the first such examination was conducted at the offices of plaintiff's counsel — as it happened, months before the action was commenced. Those circumstances distinguish this situation from those, cited by defendants, in which one litigant or another has noticed a physical examination of a party who has put his or her physical condition in controversy ( see CPLR 3121;22 NYCRR 202.17; see generally Dillenbeck v Hess, 73 NY2d 278, 287; Koump v Smith, 25 NY2d 287, 294), or in which a physical examination was performed at the behest of a non-party, such as a medical insurer or workers' compensation carrier. The issue thus before the Court is whether the examining neurologist is a garden-variety expert, such that plaintiff, the retaining party, is entitled until trial to conceal the identity of that physician-expert from the other parties ( see CPLR 3101 [d] [1] [a]) and, perforce, to insulate that expert from interviews by opposing counsel ( cf. Arons v Jutkowitz , 9 NY3d 393, 409-416 [entitling defendants to HIPAA-complaint authorizations allowing defense counsel to speak with non-party treating physicians of a plaintiff who had put physical or mental condition in controversy]). Framing the issue in that manner makes clear that this case is in a posture converse to the more typical situation confronted by the Court, i.e., in which a plaintiff resists a defendant's demand for expert disclosure on the ground that a physician in question is a treating physician not subject to such disclosure ( see CPLR 3101 [d] [1] [a]; see also Andrew v Hurh , 34 AD3d 1331 [4th Dept 2006], lv denied 8 NY3d 808, rearg denied 8 NY3d 1017; Krinsky v Rachleff, 276 AD2d 748, 750 [2d Dept 2000]; but see Norton v Nguyen , 49 AD3d 927, 929 [3d Dept 2008]).
At least one of the movants seeks disclosure of any neurological report written in the aftermath of that initial examination. This Court has seen no indication that such a report exists. Plaintiff is to advise defendants whether such a report exists, following which defendants may seek whatever relief that they may be entitled to pursuant to CPLR 3101 (d) and/or 22 NYCRR § 202.17).
Here, the Court sees no plausible alternative to characterizing the examining neurologist as anything other than a garden-variety retained expert (who may or may not wind up testifying at trial). As such, the expert's identity need not be revealed at this stage to defendants ( see CPLR 3101 [d] [1] [a]; Galdon v Ring, 261 AD2d 928 [4th Dept 1999]; Wagner v Kingston Hosp., 182 AD2d 616, 617 [2d Dept 1992]). It thus follows that there is no legal justification for compelling plaintiff to execute HIPAA-compliant medical authorizations entitling defendants to the notes and other records of the neurologist's examinations (to the extent that any such examination notes and records exist beyond the redacted report of May 18, 2010 already furnished to defendants). It further follows that defendants are not entitled to HIPAA-compliant authorizations permitting their counsel to speak with plaintiff's expert witness in advance of trial. The Court notes, however, that defendants are or would be entitled to HIPAA-compliant authorizations entitling them to discover any pre-existing medical records of the infant plaintiff that were reviewed by the examining neurologist, certainly including those records listed on the second page of the redacted report.
ISSUE OF THE FURTHER EXAMINATIONS BEFORE TRIAL:
Plaintiff's request to compel further EBTs arises out of her contention that plaintiff's counsel's questioning at the prior EBTS of Drs. Kurss and Weissman, respectively, was unreasonably and impermissibly thwarted by the "speaking" objections and directions not to answer of respective counsel for those defendant-witnesses. Upon its consideration of the law and upon reading the deposition transcripts in full, the Court concludes that Dr. Weissman's prior EBT was impermissibly curtailed by counsel for that defendant-witness, but that Dr. Kurss's EBT was not impermissibly curtailed.
Part 221 of 22 NYCRR, entitled "Uniform Rules for the Conduct Of Depositions," makes clear that, upon the making and recording of an objection to a question at an EBT, the answer nonetheless "shall be given and a deposition shall proceed subject to the objections and to the right of the person to apply for appropriate relief pursuant to Article 31 of the CPLR" ( 22 NYCRR § 221.1 [a]; see generally CPLR 3115 [a], [d], [e]). The rules further make clear that so-called "speaking objections" are frowned upon inasmuch as "[e]very objection raised during a deposition shall be stated and framed so as not to suggest an answer to the deponent" ( 22 NYCRR § 221.1 [b]). Moreover, according to the same provision, and except to the extent permitted by the rules, counsel "shall not make statements or comments that interfere with the questioning." 22 NYCRR § 221.2 governs a witness's refusal to answer on the advice of counsel. It states that a "deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person" (22 NYCCR § 221.2). CPLR 3115, and indeed the whole of CPLR article 31, makes clear that the discoverability of information before trial is not tantamount to the admissibility of such information at trial ( see generally Suk Ching Chan v Otis El. Co., 147 AD2d 395 [1st Dept 1989]).
Here plaintiff's cross motion and the opposition thereto focus on a number of questions that were posed by plaintiff's counsel and that Dr. Weissman refused to answer on the advice of his own counsel. Such directions not to answer were based on objections that were variously framed as made on the grounds that the questions improperly sought Dr. Weissman's testimony "about other people's thought process" or sought an expert opinion about what "other care givers did or may have done" or "decided" Now, in support of such objections and directions not to answer, counsel for Dr. Weissman points this Court to the rule and holding of the Second Department in Carvalho v New Rochelle Hosp. ( 53 AD2d 635 [2d Dept 1976]). Given that defense counsel at the EBT did not mention the Carvalho decision or articulate anything resembling the Carvalho rule, this Court doubts that defendant has validly preserved his current contention that the questions posed by plaintiff's counsel were impermissible according to that decision. Assuming that defendants' present argument was preserved, however, the Court would note that the rules set forth by the Second Department in Carvalho are as follows:
No attempt was made by defense counsel to relate such objections to the standard for permissibly directing one's client-witness not to answer, which, insofar as pertinent herein, is limited to instances on which the question is "plainly improper" and in which answer, if given, would cause "significant prejudice" to a party ( 22 NYCRR § 221.2. Moreover, even taken on their own terms, defense counsel's objections to the various questions were not colorable. The questions simply did not, as defense counsel then protested, ask the defendant-witness to comment on what other doctors "did" or "did not do" or "thought." For example, if the Court had been contemporaneously ruling on the objections, and if a defendant witness had been asked, for example, whether he was convinced that the patient had ruptured membranes, or whether the patient experienced and underwent an emergency C-section for placental abruption, or whether it was important in his opinion to give the patient Pitocin based on her history of ruptured membranes, or how soon he would expect the administration of Pitocin to result in cervical changes, or whether digital examination of a woman with placental previa could cause immediate severe hemorrhage or potentiate abruption, or if he could explain a possible discrepancy between the patient's chart and the pathological findings, or if the fetal monitoring strip set forth patterns that were reassuring or showed fetal intolerance of labor, and if, for example, the defendant-witness had begun his answer by saying what doctor so-and-so "did" or "did not do," or what this or that other doctor had "thought," then this Court undoubtedly would have cut the witness short, struck the answer as non-responsive, and chided the witness to listen more closely to the question.
"In an action for malpractice brought against more than one physician, one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness. . . . Where, however, the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert" ( Carvalho, 53 AD2d at 635).
Applying those rules, the Carvalho court held it proper for plaintiff's counsel to ask the first, but proper for the defendant-witness's counsel to advise the witness not to answer the second, of the following two questions:
1) "[I]s the presence of a fecalith in any way significant to the possibility of the development of an intra-abdominal abscess postoperatively?"; and
2) ""Would it have been good medical practice for a doctor having removed an appendix and receiving this pathology report subsequent to the removal of the appendix to have requested a culture and sensitivity on the purulent exudate material described in the pathology report?"
( Carvalho, 53 AD2d at 635). In arriving at that conclusion, the Second Department held that it could not "be said as a matter of law that the first question does not refer to the services preformed by [the defendant-witness]" ( Carvalho, 53 AD2d at 635-636).
This Court has serious misgivings about the provenance (let alone the sense) of the first rule set out in Carvalho, i.e., that the defendant-witness may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness. That rule is not to be found in, and does not seem in the least to be suggested by, either of the two decisions cited by the Second Department in Carvalho ( see McDermott v Manhattan Eye, Ear Throat Hosp., 15 NY2d 20, 27; Johnson v New York City Health Hosps. Corp., 49 AD2d 234 [2d Dept 1975]). McDermott unequivocally holds that "a plaintiff in a malpractice action is entitled to call the defendant doctor to the stand [i.e., at trial] and question him both as to his factual knowledge of the case (that is, as to his examination, diagnosis, treatment and the like) and, if he be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community" ( McDermott, 15 NY2d at 29-30 [parenthetical material in original; bracketed material supplied]; see Gilly v City of New York, 69 NY2d 509, 511 [reading McDermott as holding that plaintiff could "examine his doctor-opponent as fully and freely as other qualified witnesses, and that such testimony could include expert opinion"]). In its subsequent decision in Johnson, the Second Department addressed nothing beyond the issue of whether the McDermott holding "should be extended to examinations before trial," holding that it should, for the common-sense reason "that the scope of the pretrial examination is even broader than that at the trial" ( Johnson, 49 AD2d 234, 236-237). Neither McDermott nor Johnson involved a defendant-physician's being asked to opine specifically on the conduct of a codefendant-physician in relation to the standard of care, and thus neither decision went so far as to say that such opinion would not be a proper area of inquiry of the defendant-witness in a medical malpractice case.
With regard to the internal logic of the Second Department's holding in Carvalho, it is impossible for this Court to discern why the second Carvalho question ran afoul of the Carvalho rule while the first question did not. Neither of the Carvalho questions referred explicitly to the due care or dereliction of the co-defendant physician; and both questions arguably went to the witness's knowledge of a particular medical standard within his expertise. With regard to the external logic of the Carvalho holding, both Carvalho questions fell well within the compass of the McDermott-Johnson rule permitting the defendant-witness to be questioned as an expert for the purposes of eliciting his "knowledge of" the facts of plaintiff's case and "establishing the generally accepted medical practice in the community" ( McDermott, 15 NY2d at 29-30; see also Harley v Catholic Med. Ctr. of Brooklyn, 57 AD2d 827, 828 [2d Dept1977] [holding it permissible at EBT to ask defendant-pediatrician about the effects on the infant of certain medicines given by codefendant-obstetrician during the mother's labor, inasmuch as such questions did not "bear solely on the alleged negligence of the codefendant physician"]).
Apart from the foregoing, this Court has serious doubts that the decision in Carvalho would be rendered today, in the era of 22 NYCRR part 221. Moreover, even applying the Carvalho holding according to its own tenor, which this Court ordinarily would do absent a contrary holding of the Court of Appeals or Fourth Department ( see People v Turner , 5 NY3d 476, 482; Tzolis v Wolff , 39 AD3d 138, 142 [1st Dept 2007]; Mountainview Coach Lines v Storms, 102 AD2d 663, 664-665 [2d Dept 1984]; see also Stewart v Volkswagen of Am., 181 AD2d 4, 7 [2d Dept 1992], revd on other grds 81 NY2d 203), this Court would conclude that the EBT questions posed by plaintiff's counsel to Dr. Weissman did not run afoul of the Carvalho limitation. In no instance did plaintiff's counsel ask the defendant-witness to opine concerning whether other physicians met or deviated from the applicable standard of medical care. Except for certain questions in which the witness was asked to simply define the applicable standard of obstetric care (i.e., without commenting on whether any other medical provider lived up to such standard or deviated therefrom), the questions focused other than on the standard of care. Instead, the questions primarily asked the defendant-witness to recount his own knowledge or assessments concerning what had transpired in plaintiff's case, in which he admittedly had acted as "attending physician," however remote such attendance might have been at relevant times ( cf. Giventer v Rementeria, 181 Misc 2d 582, 586-587 [Sup Ct Richmond Co 1999]; Cruz v City of New York, 135 Misc 2d 393, 395-396 [Sup Ct New York Co 1987]). Thus, in no instance can the Court conclude as a matter of law that the objected-to question did not refer at least in part to the services performed (or not performed) by the defendant witness himself ( see Carvalho, 53 AD2d at 635-636; see also Bryant v Bui, 265 AD2d 848, 849 [4th Dept 1999]; Forgays v Merola, 222 AD2d 1088 [4th Dept 1995]; Glass v Rochester Gen. Hosp., 74 AD2d 732, 733 [4th Dept 1980]; Harley, 57 AD2d at 828). If, upon further deposition, Dr. Weissman feels that, on account of his absence from the delivery room, he lacks a sufficient basis of knowledge to recount a given fact or relate a given assessment about plaintiff's case, then the defendant-witness need merely say so (although the Court understands the potential embarrassment such an answer might create for a doctor who is alleged to have remotely given a certain medical order in the case). However, the Court cannot say that it "plainly improper" and prejudicial (22 NYCCR § 221.2) for plaintiff's counsel to inquire into such facts and assessments in the manner in which she did.
"Where a physician declines response to a question because it assertedly deals with the treatment by a codefendant, it is his burden to persuade the court that the question solely involves care rendered by another and is wholly irrelevant to what the witness himself did, did not do, knew or should have known. Significantly, where this issue has arisen, the courts typically ruled in favor of a response. It is a rare case where the medical witness can successfully argue that standards of practice in a related specialty are either wholly unknown to him, totally irrelevant to his own care and treatment of a patient, or clearly immaterial to the issue of causation, so justifying his refusal to respond" (Norman Bard Lori A. Maran, New York Medical Malpractice, § 17.5.9.1 Comment [Norman Bard 1994]), quoted in Giventer, 181 Misc 2d at 586).
Beyond that, the Court must conclude that Dr. Weissman's counsel at several junctures stepped beyond his proper role at a deposition, which is to succinctly state his objection but otherwise allow the questions and answers to proceed ( see 22 NYCRR §§ 221.1 [b], 221.2; Cardamone v Ricotta, 21 Misc 3d 1117[A] *2 [Sup Ct Nassau Co 2006] [condemning gratuitous comments, coaching, and other interference of counsel], affd 47 AD3d 659 [2d Dept 2008]).
Accordingly, the motions of defendants to compel plaintiffs to execute a HIPAA-compliant "speaking" authorization re: the examining neurologist are DENIED, except that the Court makes clear that defendants are entitled to discover all medical records reviewed by the examining neurologist in rendering his report.
The cross motion of plaintiff to compel defendants Weissman and Kurss to submit to further examinations before trial, and to answer those questions previously not answered, as well as related follow-up questions, is GRANTED with respect to Dr. Weissman but DENIED with respect to Dr. Kurss.
All counsel are to report for a status conference to be held on October 19, 2010, at 1:45 p.m., in Part 34 at 50 Delaware Avenue.
SO ORDERED: