Opinion
# 2012-039-318 Claim No. 119226 Motion # 2012-039-318 Claim No. M-80797 # 2012-039-318 Claim No. M-80798 Cross-Motion No. CM-80967
06-29-2012
ERDAL GURSOY, as Administrator of the Estate of AHMET GURSOY, Deceased v. STATE OF NEW YORK
Synopsis
Claimant's motion for summary judgment is denied, as the parties' experts disagree as to whether the alleged wrongdoing of defendant's employees caused decedent the injuries complained of and, ultimately, his demise. The parties' competing motions for discovery sanctions are denied. Case information
UID: 2012-039-318 Claimant(s): ERDAL GURSOY, as Administrator of the Estate of AHMET GURSOY, Deceased Claimant short name: GURSOY Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119226 Motion number(s): M-80797, M-80798 Cross-motion number(s): CM-80967 Judge: James H. Ferreira Kramer & Pollock, LLP Claimant's attorney: By: Lisa O'Connor, Esq. Larry J. Kramer, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Marcie K. Glasser Assistant Attorney General Third-party defendant's attorney: Signature date: June 29, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, as administrator of the estate of Ahmet Gursoy (hereinafter decedent), seeks damages for personal injuries and wrongful death sustained by decedent arising out of alleged medical malpractice committed by employees of defendant at Stony Brook University Hospital (hereinafter the Hospital) in Stony Brook, New York. Claimant alleges that, on December 2, 2008, defendant's employees transfused decedent with blood intended for another patient, which ultimately led to decedent's demise on January 9, 2009. Issue has been joined, and discovery is ongoing.
There are three motions currently pending before the Court. In the first motion (M-80797), claimant seeks an order striking defendant's answer pursuant to CPLR 3126 or precluding defendant from offering evidence at trial based upon defendant's alleged willful failure to comply with claimant's discovery demands. In the alternative, claimant seeks a conditional order striking defendant's answer unless defendant produces all outstanding discovery within 20 days after the return date of the motion. In the second motion (M-80798), claimant seeks summary judgment pursuant to CPLR 3212 on the issue of liability. Defendant opposes both motions and cross moves (CM-80967) for an order compelling claimant to produce discovery pursuant to CPLR 3124 and an order dismissing the claim pursuant to CPLR 3126. Claimant opposes defendant's cross motion.
Turning first to claimant's motion for summary judgment, such a remedy is a drastic one which should only be granted where there are no doubts as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Stukas v Streiter, 83 AD3d 18, 23 [2011]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 50 [2011]). If the proponent's burden is met, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324). In considering a summary judgment motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [2011]; Dorival v DePass, 74 AD3d 729, 730 [2010]). "The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Yaegel v Ciuffo, 95 AD3d 1110, 1112 [2012]).
In support of his motion, claimant has submitted a copy of decedent's death certificate, medical records of decedent and the affidavit of Kerin Hausknecht, a doctor licensed to practice medicine in New York who is currently the Chief of Neurology and Medical Director, Stroke Center, at St. John's Episcopal Hospital in Far Rockaway, New York. This evidence establishes that, on December 1, 2008, decedent, who was 73 years old and had been diagnosed in 2007 with liver cancer, was admitted to the Hospital emergency room with a chief complaint of altered mental status. Among other things, a CT scan was performed - which was normal - and a blood transfusion was ordered to treat decedent's anemic condition. Shortly after the transfusion began, decedent began to show signs of a transfusion reaction, including chills, rigor and a fever. The transfusion was stopped and it was determined that decedent had received blood that was for another patient; decedent's blood type was O+ and he had been given A+ blood. Decedent was administered medication and "aggressively hydrated" (id. at Progress Notes page 61 of 254). Physician's notes indicate that decedent's urine was initially "red dark" after the transfusion but became "amber clear" in the third hour after the transfusion (Affidavit in Support of Motion No. M-80798, Exhibit B at Progress Notes page 5 of 254). On December 2, 2008, decedent was noted to have weakness on his left side and a second CT scan was performed. This showed a brain hemorrhage which was characterized as a "new bleed" and determined not to require surgical intervention (id. at Progress Notes page 15 of 254). On December 5, 2008, it was noted that decedent had dysphasia - difficulty swallowing - for which he was evaluated and placed on a special diet. Decedent was released from the Hospital on December 27, 2008; according to the Hospital's transfer summary, it had been arranged that decedent would go "into rehab" in his home country of Turkey (id. at Transfer Summary page 2 of 3). Decedent passed away on January 9, 2009 in Turkey; the cause of death was listed on the death certificate submitted by claimant as "Respiratory arrest as associated to Primary Hapatocellular CA as associated to Lung and Bone Metastases" (id. at Death Certificate). According to another document submitted by claimant, a statement allegedly made by a physician at the Turkish hospital, decedent "went into respiratory failure and cardiac arrest secondary to aspiration" while in the hospital's intensive care unit (id. at Yucelen Hospital record dated January 10, 2009).
In her affidavit, Dr. Hausknecht opined, to a reasonable degree of medical certainty, that, as a result of receiving blood that was not compatible with his blood type, decedent suffered an acute hemolytic transfusion reaction; in other words, "his body attacked the blood being transfused" (Affidavit in Support of Motion No. M-80798, Exhibit C ¶ 11). As a result of this reaction, decedent suffered a rapid increase in blood pressure and "consumption of clotting factors" (id.). Dr. Hausknecht opined that the brain hemorrhage - which she also refers to as a stroke - noted on the December 2, 2008 CT scan was "a direct consequence" of the elevated blood pressure and the diminution of clotting factors. She further opined, to a reasonable degree of medical certainty, that decedent "aspirated [on December 9, 2009] because of the [d]ysphagia, which was a direct consequence of the stroke, which was caused by the mismatched blood transfusion" (id. ¶ 15). She concluded, based upon her education, training, background, research and experience, as well as her review of the medical records and relevant medical texts, that the Hospital departed from good and acceptable medical practice in transfusing decedent with blood of an incompatible blood type and in failing to monitor or negligently monitoring decedent after the transfusion. She further concluded that these departures caused decedent to suffer fatal injuries, including a intracranial hemorrhage, hemorrhagic stroke and dysphagia.
In opposition to the motion, defendant has submitted the affirmation of Dr. Joseph Schwartz, a doctor board-certified in Blood Banking/Transfusion Medicine and licensed to practice medicine in New York who is currently the Director of Transfusion Medicine and Director of Hemotherapy and Cellular Therapy at Columbia University Medical Center in New York City. Dr. Schwartz opined, to a reasonable degree of medical certainty, that the injuries alleged - specifically the intracranial bleed, stroke, difficulty swallowing and aspiration - were not related to the transfusion reaction. He stated that intracranial bleeding "is not associated with transfusion reaction, and there is no association between the transfusion reaction and the intracranial bleed noted on the CT scan in this case" (Affirmation in Opposition to Motion No. M-80798, Exhibit A ¶ 5). He opined that decedent's elevated blood pressure "was transient and was not causally related to the intracranial bleed seen on the CT scan, or any stroke [decedent] may have suffered," explaining that a bleed in the brain may be caused by long term hypertension, not a relatively transient elevation of blood pressure such as what occurred in this case (id. ¶ 12). Dr. Schwartz also stated that it was his opinion within a reasonable degree of medical certainty that the intracranial bleed was caused by decedent's coagulation abnormalities that were directly related to liver cancer and not the transfusion reaction. He also opined that decedent's difficulty swallowing was a symptom of his "deteriorating and weakening cancerous state" and not related to the transfusion reaction (id. ¶ 17). It was Dr. Schwartz's opinion that cancer was the cause of decedent's death and that the only consequences of the transfusion were chills, shaking and elevated temperature, heart rate and blood pressure, all of which were quickly resolved and transient. Dr. Schwartz further opined that decedent was appropriately monitored after the transfusion reaction. He stated that it was significant that decedent's urine had cleared of blood products by the next day and that the absence of kidney failure "points to the resolution of the transfusion reaction as opposed to long term effects" (id. ¶ 9). Having considered the papers submitted by both parties, the Court finds that, even assuming that claimant has made a prima facie showing of entitlement to judgment as a matter of law, defendant has successfully raised questions of fact to defeat claimant's motion for summary judgment. Specifically, the parties' experts disagree as to whether the transfusion of blood of the wrong blood type into decedent caused him the injuries complained of and ultimately, his demise. As such, claimant's motion for summary judgment must be denied.
The Court notes that claimant has submitted evidence in reply, including a reply affirmation of his expert and several articles that appear to have been downloaded from the internet. "[T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant" and not to introduce new evidence or arguments (Ritt v Lenox Hill Hosp., 182 AD2d 560, 561 [1992]; see Schissler v Athens Assoc., 19 AD3d 979, 980 [2005]). To the extent that, by way of reply, claimant is introducing new arguments or evidence in support of his motion, the Court has not considered those arguments or evidence. The Court also notes that defendant has submitted an affirmation in sur reply without first obtaining the Court's permission to do so. Nevertheless, as no prejudice is apparent, the Court will consider the sur reply to the extent that it is responsive to claimant's reply submission (see Ennis-Short v Ostapeck, 68 AD3d 1399, 1401 [2009]).
Turning to the discovery motions before the Court, CPLR 3101(a) provides that there "shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Trial courts "possess a wide discretion to decide whether information sought is 'material and necessary' to the prosecution or defense of an action" (Allen v Crowell-Collier Publ. Co., 21 NY 2d 403, 406 [1968]; see Murphy v Hamilton, 90 AD3d 1294, 1295 [2011]). CPLR 3126 provides that, where a party refuses to obey a disclosure order or wilfully fails to disclose information that the Court finds should have been disclosed, the Court "may make such orders with regard to the failure or refusal as are just," including an order "prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses" or an order "striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party" (CPLR 3126 [2], [3]).
As a preliminary matter, the Court notes that this claim was filed in December 2010 and transferred to the calendar of the undersigned in April 2011. By letter dated August 5, 2011, the Court provided the parties with a blank preliminary conference order for them to jointly prepare and return to the Court. However, the parties were unable to agree on a discovery schedule and requested Court intervention. After a telephone conference with the parties on November 7, 2011, the Court ordered that the parties exchange previously requested authorizations and that defendant provide a follow-up response to claimant's combined demands by December 7, 2011. The Court also gave claimant permission to move for discovery as to previously requested items objected to by defendant. The Court has not issued any other orders relating to discovery in this matter.
In his motion, claimant states that he served discovery demands on defendant on March 4, 2011 and asserts that all of the discovery demanded therein should be served without further inquiry because defendant failed to respond to any of his demands within 20 days of service. Claimant argues that, in any event, the objections contained in defendant's response to the demands - dated May 2, 2011 - are legally unsupported and that the Court should grant his motion in light of defendant's unjustified, continued willful failure to comply with his discovery demands. Claimant asserts that the following items of discovery remain outstanding:
A. The names and addresses of all physicians, medical students, interns, residents, fellows, paraprofessionals, social workers, registered nurses, licensed practical nurses, nurses aids and nursing assistants who rendered care to decedent;
B. Copies of the protocol, procedures, rules, standard operating procedures (pursuant to 10 NYCRR 58-2.8) and standards manual(s) for defendant and its physicians, residents, fellows, interns, paraprofessionals, registered nurses, licensed practical nurses, nurses aids, nursing assistants, and the administrative staff regarding the blood bank and blood transfusion;
C. Copies of the minutes, recordings, and notes of the Morbidity and Mortality Rounds concerning decedent;
D. Copies of the memoranda for any disciplinary proceeding or hearings concerning decedent;
E. Copies of the communications logs pertaining to decedent from admission through discharge;
F. Copies of all correspondence pertaining to decedent;
G. Copies of all incident reports pertaining to decedent, pursuant to New York State Health Code 10 NYCRR 405.8., Incident Reporting, 10 NYCRR 58-2.16, Required Standards for Transfusions and CPLR 3101(g);
H. All forms of data collected by all departments, units, and/or divisions concerning decedent's care and treatment, including, but not limited to, copies of all computerized data, meta data, system data, back up data, files deleted by a computer user, residual data, online storage data and near line storage media;
I. A certified copy of decedent's chart; and
J. Statements made by claimants.
Claimant states that defendant provided only the table of contents of the Blood Bank Services Manual and Users' Guide and asserts that the entire document, consisting of 27 or 28 pages, should have been provided.
In opposition, defendant asserts that it has fully complied with the Court's November 7, 2011 order and has provided claimant with all of the material demanded except for the material that it has properly objected to disclosing. In its cross motion, defendant argues that the claim should be dismissed pursuant to CPLR 3126 because claimant has failed to comply with the Court's order that claimant provide defendant with all of the previously requested authorizations. Defendant states that it still has not received from claimant a properly-executed authorization for Medicaid records,an authorization for a certified copy of decedent's death certificate or the other authorizations previously requested.
Defendant asserts that the authorization for Medicaid records that claimant provided in response to the Court's order was rejected by the Department of Social Services because it did not contain the required initials in Section 9A.
Upon consideration of the papers of the parties and the particular circumstances of this matter, the Court finds that neither party has established that the other parties' alleged failure to comply with discovery demands was "willful, contumacious or in bad faith"and declines to grant the sanctions sought by either party under CPLR 3126 (Koehl v State of New York, UID No. 2008-015-041 [Ct Cl, Collins, J., May 26, 2008]; see CPLR 3126; compare Watson v Hall, 43 AD3d 435 [2007]). The Court also denies, as moot, claimant's request for a conditional order striking defendant's answer unless defendant produces all outstanding discovery within 20 days after the return date of the motion. However, the Court is interested in the discovery of this matter moving forward without any further delay to afford both parties the opportunity for a full and fair trial and orders the following with respect to the outstanding discovery sought by the parties.
Initially, defendant does not dispute that it did not serve claimant with its objections to his discovery demands within 20 days of service, as required by CPLR 3122 (a). Therefore, the Court finds that defendant has waived any objection to claimant's demands, except as to material which is privileged or palpably improper (see Morrison v State of New York, UID No. 2011-048-009 [Ct Cl, Bruening, J., Nov. 4, 2011]; see also Murphy v Hamilton, 90 AD3d at 1295). A discovery demand is palpably improper if, for example, it seeks information that is "irrelevant, overbroad and burdensome" (Alford v Progressive Equity Funding Corp., 144 AD2d 756, 757 [1988]; see Haller v North Riverside Partners, 189 AD2d 615, 616 [1993]).
As to claimant's demand A, the Court agrees with defendant that the demand is overly broad. It is ordered that, after claimant receives the complete certified copies of decedent's medical records that it seeks, as discussed below, claimant shall circle any name/signature/identifier contained in decedent's medical chart, and forward same to defendant. Defendant then shall provide the name and last known address of the individual circled. The Court also finds that claimant's demand B - for protocol, procedures, rules, standard operating procedures for all of defendant's staff regarding blood bank and blood transfusion - is overbroad and burdensome. Claimant is directed to specifically identify any department for which it seeks these items; defendant then shall provide the items identified, to the extent not otherwise provided. The Court notes that defendant has produced a table of contents for the Blood Bank Service Manual and Users' Guide. Claimant may request relevant portions of this manual based upon the table of contents, and defendant is directed to provide the portions requested.
Next, the Court finds claimant's demands C, D and G to be moot, notwithstanding defendant's assertion of privilege, based upon defendant's representations there was no morbidity and mortality conference concerning decedent and there were no disciplinary proceedings or incident reports concerning decedent or the incident at issue.
As to claimant's demand G, for incident reports, defendant represents that "there are no incident reports" (Affirmation in Opposition and in Support of Cross Motion ¶ 33). Defendant states, however, that a Patient Safety Net Report (hereinafter PSN) was generated with respect to decedent, but avers that the PSN is "a privileged and confidential quality assurance document, separate and distinct from an incident report" (id.). Defendant further asserts that this report is "an administrative review for quality improvement" prepared by the Hospital as required under Public Health Law § 2805-j, k, l, and m and Education Law § 6527 and is therefore privileged (id.). As claimant has made no assertion that the PSN is responsive to demand G and does not specifically seek production of the PSN in his motion, the Court takes no position on whether this evidence is subject to disclosure.
With respect to claimant's demands E, F and H - for "communications logs," "all correspondence," and "all forms of data" pertaining to decedent's care and treatment, respectively (Affidavit in Support of Motion M-80797, Exhibit B ¶¶ 8-9, 11), defendant represents that there are no communication "logs" other than communications contained in the medical record itself, that there is no "correspondence" other than that which may be part of decedent's billing record or requests by claimant for records and that there is no "data" other than that which has been provided to claimant. Thus, it is likely that claimant already has in his possession any items that may be considered responsive to these demands. To the extent that there is any other evidence that is responsive to these demands, or that claimant is able to provide a more specific request with respect to these demands, defendant is ordered to respond accordingly.
As to claimant's demand I, for a certified copy of decedent's chart, the papers before the Court reflect that claimant is in possession of at least some of decedent's medical records. However, claimant asserts that the entire record has not been provided to him and has identified several records that he has not received. The Court orders the parties to arrange a mutually convenient time for claimant's attorney to go to the Hospital to inspect the original medical record maintained there. After said inspection, claimant is directed to request a so-ordered subpoena from this Court specifying the certified medical records of decedent it seeks to obtain from the Hospital.
With respect to claimant's demand J, for statements of claimant, it does not appear that defendant has yet responded to that particular demand. Defendant is ordered to respond to the demand (see CPLR 3101 [e]). Finally, claimant is ordered to provide defendant with a properly-executed authorization for Medicaid records and an authorization for certified copy of decedent's death certificate. The Court finds that claimant has provided, to the extent possible, the other authorizations requested by defendant in its discovery demands.
Based upon the foregoing, claimant's motion for summary judgment (M-80798) is denied. Claimant's motion to strike defendant's answer or to preclude defendant from presenting evidence at trial (M-80797) is denied. Defendant's cross motion to dismiss the claim is denied (CM-80967). Inasmuch as the motions sought to compel discovery, those motions are granted to the extent provided herein.
The parties shall comply with the Court's discovery directives with respect to claimant's inspection of decedent's medical records at the Hospital within 30 days of the filing date of this decision and order. Claimant is ordered to notify the Court in writing of the date he receives the certified medical records pursuant to the Court-ordered subpoena. The parties shall comply with the remaining directives outlined herein within 60 days of the date claimant receives the medical records. To the extent the parties are unable to comply with these time periods, they should seek an extension of time from the Court. The Court will contact the parties to schedule a compliance conference upon the expiration of these time limits.
June 29, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers considered:
1. Notice of Motion (M-80797) dated December 14, 2011;
2. Affidavit in Support (M-80797) by Lisa O'Connor, Esq. dated December 14, 2011 and exhibits attached thereto;
3. Notice of Cross Motion (CM-80967) dated January 23, 2012;
4. Affirmation in Opposition (M-80797) and in Support of Cross Motion (CM-80967) by Marcie K. Glasser, AAG and exhibits attached thereto;
5. Affidavit in Reply (M-80797) and in Opposition (CM-80967) by Lisa O'Connor, Esq. dated March 7, 2012 and exhibits attached thereto;
6. Notice of Motion (M-80798) dated December 14, 2011;
7. Affidavit in Support (M-80798) by Larry Kramer, Esq. dated December 14, 2011 and exhibits attached thereto;
8. Affirmation in Opposition (M-80798) by Marcie K. Glasser, AAG dated January 23, 2012 and exhibits attached thereto;
9. Reply Affidavit (M-80798) by Larry Kramer, Esq. dated March 13, 2012 and exhibits attached thereto; and
10. Affirmation in Sur Reply (M-80798) by Marcie K. Glasser, AAG dated March 23, 2012.