Opinion
# 2011-018-224 Claim No. 114132 Motion # 2011-018-224 Claim No. M-79713 # 2011-018-224 Claim No. M-79715
07-28-2011
RALPH RINK as Administrator of the Estate of JOANNE RINK, and RALPH RINK, Individually v. STATE OF NEW YORK
Synopsis
Both Claimants' and Defendant's Discovery motions are granted in part. Case information
UID: 2011-018-224 Claimant(s): RALPH RINK as Administrator of the Estate of JOANNE RINK, and RALPH RINK, Individually Claimant short name: Rink Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114132 Motion number(s): M-79713, M-79715 Cross-motion number(s): Judge: DIANE L. FITZPATRICK WALTER D. KOGUT, P.C. Claimant's attorney: By: Walter D. Kogut, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Maureen A. MacPherson, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: July 28, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has brought a motion for a protective order pursuant to CPLR 3103 and an order to compel pursuant to CPLR 3124. Claimant opposes the motion and moves for an order directing the scheduling of certain depositions, written interrogatories and imposing sanctions and penalties on Defendant. Defendant opposes Claimant's request for relief. These motions were brought at the direction of the Court during a conference held on February 16, 2011. A follow-up letter from Court staff setting forth the substance of the conference was forwarded to counsel on February 23, 2011.
The claim arises out of a tragedy that ultimately resulted in the death of Decedent, Joanne Rink. On June 2, 2007, Mrs. Rink was admitted to State University of New York Upstate Medical University Hospital (hereinafter University Hospital) for injuries sustained in a motor vehicle accident. She was treated for her injuries and remained in the hospital through June 6, 2007. In the early morning of June 6, 2007, Mrs. Rink allegedly began to suffer from paranoia and became agitated. Thereafter, that same day, Mrs. Rink, who allegedly exhibited very aggressive behavior and paranoid thoughts, had some medication administered and then was placed in restraints. It is alleged that after being placed in the restraints, Mrs. Rink was left alone in her room where she got out of her restraints and ultimately went out a window in her room falling to a roof landing below. She then fell another 27 feet from the edge of the landing to the concrete. Mrs. Rink suffered significant injuries and was in a coma until her death on February 3, 2010.
The claim was filed on August 24, 2007, and alleges medical malpractice and negligence. Defendant interposed a verified answer on October 3, 2007. A Preliminary Conference Stipulation and Order was signed on November 13, 2007, and has been amended twice with the current order dated May 12, 2009. Numerous documents and information have been exchanged and many depositions have already been conducted. Court staff has had numerous conference calls with counsel and previous motions to resolve discovery issues were made. A Decision and Order on those motions was filed on April 15, 2010. Some of the issues raised by these motions relate also to the Decision and Order on the prior motions, as well as discussions held during conferences with the Court or Court staff.
Depositions of Theresa Gagnon and Curtisss Smith
A. Theresa Gagnon
By this motion, M-79715, Claimant seeks the deposition of Theresa Gagnon, the Director of Risk Management for University Hospital. Defendant seeks a protective order arguing that Ms. Gagnon's testimony is protected from disclosure by Education Law § 6527 and Public Health Law §§ 2805-j, 2805-l, and 2805-m.
A limited deposition of Ms. Gagnon was conducted on May 11, 2009, and a copy of the transcript has been provided.From the transcript, the following information is available: Ms. Gagnon held the position of Risk Coordinator with the hospital at the time of this incident. In that role she was contacted by someone after Ms. Rink fell. She went to Ms. Rink's hospital room along with an investigator from the Attorney General's office later that day. Ms. Gagnon could not recall the time she arrived at Ms. Rink's room on June 6, 2007. No one else was in the room at the time she and the investigator arrived. She took possession of the restraints used on Mrs. Rink and has maintained custody of those items since June 6, 2007. Prior to removing the items, the investigator from the Attorney General's office took pictures of the location and position of the restraints, in Ms. Gagnon's presence, and before Ms. Gagnon removed and labeled the restraints. In the limited deposition, Ms. Gagnon testified as to where the restraints were secured to the bed before she removed them.
Exhibit A attached to Claimant's motion.
Claimant now seeks a further deposition of Ms. Gagnon. He has provided, in camera, under separate cover dated April 11, 2011, a description of the areas of questioning he wishes to pursue with Ms. Gagnon. His in camera submissions were at the direction of the Court. In general, Claimant seeks to ascertain why Ms. Gagnon went to the hospital, what she did when she went there, what information she obtained, the condition of the room and the restraints when she arrived, and how the manufacturer's instructions shown to the Department of Health on June 13, 2007, were obtained and what, subsequently, happened to those instructions. He does not seek copies of any reports or documents based upon Ms. Gagnon's attendance at any hospital quality assurance review meeting or investigation into this matter.
Education Law § 6527 (3) protects from disclosure: (1) the proceedings and records relating to the performance of a medical or quality assurance review function or participation in a medical and dental malpractice prevention program; (2) reports required by the department of health pursuant to section 2805-l of the public health law, including the investigation of an incident reported pursuant to section 29.29 of the mental hygiene law, and (3) the testimony of any person in attendance when a medical or quality assurance review or a medical and dental malpractice prevention program meeting, or an incident reporting function was performed shall be required relating to what transpired thereat, unless the person is a party to the action or proceeding about which the subject matter was reviewed at such meeting.
Defendant argues that the information that Claimant seeks relates to the mandatory incident reporting requirements of Public Health Law §§ 2805-j and 2805-l, and is protected from disclosure under Public Health Law § 2805-m and Education Law § 6527 (3). It is
Defendant's burden, in this case, to substantiate its entitlement to the protections of these statutes (see Learned v Faxton-St. Luke's Healthcare, 70 AD3d 1398 [4th Dept 2010]). To meet its burden, Defendant has submitted the affirmation of counsel. Defendant also unilaterally submits in camera the affidavit of Theresa Gagnon. Claimant objects to the Court's consideration of this ex parte submission.
The Court has reviewed, in camera, Ms. Gagnon's affidavit and finds that portions of the affidavit should be provided to opposing counsel before the Court reaches the issue of whether Ms. Gagnon's further testimony may be taken by Claimant. Specifically, Defendant should provide to Claimant, and file with the Clerk of the Court, the affidavit with paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, 20, 21, 24, and 25 redacted. The parenthetical statement in paragraph 3 should also be redacted. Exhibit A should not be disclosed. The balance of the affidavit is not privileged or contains information already provided by her deposition or other documentation and only provides the context within which Ms. Gagnon performs her work; information to which Claimant's counsel is also entitled.
Upon the filing and service of Ms. Gagnon's affidavit, Claimant shall have an additional 15 days to submit any further arguments to support his request for an order directing Ms. Gagnon's deposition. Defendant shall have 10 days thereafter to respond to any further arguments raised by Claimant.
B. Curtiss Smith
Claimant also seeks the deposition of Curtiss Smith. It is Claimant's position that the issue of Mr. Smith's deposition was raised in the prior discovery motion and ordered by this Court's Decision and Order filed April 10, 2010. Defendant opposes the deposition of Curtiss Smith arguing that Mr. Smith is an investigator on staff at the Attorney General's office; and thus, any information he obtained is exempt from disclosure as attorney work-product and material prepared in anticipation of litigation pursuant to CPLR 3101 (c) and (d) (2). Defendant disputes that the Court ordered Mr. Smith's deposition by its prior Decision and Order dated April 10, 2010.
As part of Claimant's prior motion filed October 5, 2009, he sought an order directing the scheduling of depositions for witnesses identified on a Notice of Oral Deposition dated August 31, 2009.Listed on that document is "Curtiss Smith."No specific arguments were made regarding Mr. Smith's deposition, although arguments regarding several other witnesses were presented. The Court directed that depositions of the witnesses as requested in the August 31, 2009, Notice to Take Oral Deposition were to be scheduled within a specified time frame. Many of those depositions have been completed, however, Defendant never produced Mr. Smith for a deposition, has raised objections to his production, and at a conference with the Court on February 16, 2011, which precipitated this motion, Defendant again argued that the State should not have to produce Mr. Smith for a deposition because he is an employee of the Attorney General's office and his work is privileged.
Exhibit B of Claimant's Cross-Motion No. 114132 filed October 5, 2009.
Defendant's papers indicate Mr. Smith's name is spelled "Curtiss."
CPLR 3101 (c) protects from disclosure the work-product of an attorney. This concept has been narrowly construed to include "interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs that were held, prepared or conducted by the attorney." (Lamitie v Emerson Elec. Co.-White Rodgers Div., 208 AD2d 1081, 1083 [3d Dept 1994], quoting Central Buffalo Project Corp. v Rainbow Salads, 140 AD2d 943,944 [4th Dept 1988], quoting Hickman v Taylor, 329 US 495, 511 [U.S. Pa., 1947 ] [Emphasis supplied]). The investigator's investigation and photographing the scene would not be attorney work-product. However, it is material prepared in anticipation of litigation and protected by CPLR 3101 (d) (2). This protection may be lost if it is shown that the party seeking the information has substantial need for the information to prepare the case and cannot, without undue hardship, obtain the substantial equivalent of the materials or information by other means.
Appropriately, Defendant has already provided Claimant with copies of the pictures taken by Mr. Smith, as these pictures were taken shortly after the incident and purportedly capture the scene at that time. Claimant now asserts that he must depose Mr. Smith, because only Mr. Smith can identify the pictures and confirm that they are accurate representations of the scene at that time. Claimant's counsel asserts that no other witnesses, despite the many that have been deposed, have been able to identify what the pictures depict. Defendant has not indicated that anyone else can accurately identify all of the photographs, nor has Defendant indicated that it would dispute the authenticity of the photographs. Defendant does note, however, that Mr. Smith was not the first witness on the scene and that the Syracuse Police Department took 73 photographs of the scene prior to Mr. Smith's arrival.
Defendant relies on McCoy v State of New York, 52 AD3d 1212 [4th Dept 2008]. In that case, a claimant sought to depose the senior investigator employed by the Attorney General's office regarding the authenticity of photographs she had taken as well as observations she made concerning the condition of the accident scene. The trial court permitted the limited deposition. (McCoy v State of New York, Ct Cl, Hudson, J., signed Dec. 21, 2006, Cl. No. 94681, Motion No. M-72531, unpublished decision). The Appellate Division Fourth Department reversed, stating claimant could not depose the investigator regarding "information garnered by the investigator at her visit to the scene of the accident." (McCoy v State of New York, 52 AD3d at 1213). The Appellate Court noted that claimant had failed to show a substantial need for the material and that he could not, without undue hardship, obtain the substantial equivalent of the material by some other means (Id).Here, Claimant asserts that Mr. Smith is in the best position to authenticate the photographs he took and no other witness "has positively identif[ied] what the photographs show, or say they fairly and accurately represent anything." However, Claimant has the 73 photographs taken by the Syracuse Police Department before the arrival of Mr. Smith at the Decedent's hospital room. There has been no assertion that these photographs are not the substantial equivalent of the photographs taken by Mr. Smith and, therefore, Claimant has not met the burden imposed by CPLR § 3101 (d) (2).
Defendant's Request For Unrestricted Medical Authorizations
It is clear from the submissions that there has been much back-and-forth about the authorizations requested and those that have been provided. It seems that Defendant now seeks specifically the following information: (1) unrestricted medical authorizations to time, place, and substance for Mrs. Rink's medical providers, and (2) unrestricted speaking authorization for Dr. Jang Chi and her other physicians, including psychotherapy notes and mental health information. Although Claimant has provided many authorizations, he has not specifically provided these authorizations. Accordingly, Claimant is to provide to Defendant within 20 days of the date this Decision and Order is filed, HIPAA compliant authorizations (on the form medical authorization previously provided by Claimant, see for example Exhibit F, attached to Claimant's Answering Affirmation filed April 27, 2011) . Under paragraph 9 (a) on the HIPAA authorization form, Claimant is to check the box labeled "Entire Medical Record" and where there is an exception made for psychotherapy notes, that should be crossed out and initialed by Claimant. Additionally, the areas for inclusion of "Alcohol/Drug Treatment" and "Mental Health Information" should be initialed. This authorization should be provided for all of Mrs. Rink's medical providers, including Dr. Jang B. Chi, Community General Hospital, Van Duyn, Rite Aid Pharmacy, Kinney Drugs, Accent/Excellus Blue Cross Blue Shield, Dr. Deborah A. Geer, Dr. Eileen M. Murphy, Auburn Memorial Hospital, Auburn Orthopaedic Specialists, Dr. David P. Locastro, Dr. Roger W. Tinsely, Dr. Jacqueline K. Bays, and Dr. Robert Boudreau. A speaking medical authorization shall also be provided for Dr. Jang Chi and Mrs. Rink's other physicians. For these authorizations, on the HIPAA form paragraph 9 (a) should be completed as described above, and subsection (b) under "Authorization to Discuss Health Information" should be checked, initialed, and Mrs. Rink's physician's names inserted. The New York State Attorney General's office should be the authorized entity.
Deposition of Andrew Rink
Defendant seeks the deposition of Mrs. Rink's son, Andrew. Andrew currently resides in Florida. Defendant asserts that Andrew Rink came to the area at least two times last year without Claimant informing the Attorney General's office so that a deposition could be arranged. Defendant seeks Claimant to pay the cost to bring Andrew Rink to Syracuse or pay the costs of the State taking Mr. Rink's deposition in Florida. Defendant has submitted, in camera, the proposed questions of Andrew Rink as directed by the Court.
Claimant represents that Defendant did not seek Andrew Rink's deposition by formal Notice of Oral Deposition, but did request his deposition by letter on June 23, 2010.Claimant represents that Andrew Rink is willing to appear in New York State for a deposition. Claimant was previously directed, during a conference with the Court on February 16, 2011,to provide to Defendant dates when Andrew Rink would be coming to New York by February 28, 2011. There is no indication that Claimant provided this information.
Although Defendant argues that this request was made repeatedly over the years, no specific dates or documentation are provided.
This was also set forth in the letter to counsel from the Court dated February 23, 2011.
Since Defendant made its request to depose Andrew Rink, the Court is not persuaded that he has come to New York without Claimant's counsel informing Defendant. As a result, the Court will not order Claimant to pay the cost for Andrew Rink to come to New York to be deposed or for the cost of the State traveling to Florida to depose him. Claimant, in opposition, argues that Defendant should be limited to written interrogatories; or, if an oral deposition is taken, a protective order should be issued.
Claimant is again directed to inquire as to when Andrew Rink will be coming to New York and provide those dates to Defendant within 30 days of the date this Decision and Order is filed, or as soon as information regarding his travel plans becomes available. Claimant is also directed to promptly notify the Defendant if Andrew Rink makes any unplanned visits to New York so that a deposition may be scheduled. Claimant is under a continuing duty to make this disclosure until the commencement of trial.
Defendant has disclosed, in camera, the questions that she plans to ask Andrew Rink. Based upon the areas of inquiry no protective order is warranted at this time.
The Manufacturer's Instructions and Claimant's Request for Sanctions and Permission to Serve Three Interrogatories
Claimant demanded Defendant produce the manufacturer's instructions which were included in packaging for the wrist restraints and the vest restraints used upon Mrs. Rink on June 6, 2007, along with the packaging itself. A tremendous amount of exchange has occurred regarding these items. It appears to the Court that the issue of the manufacturer's instructions for the Posey wrist restraints is resolved since Claimant filed and served a Notice to Admit dated April 28, 2011, which has not been denied by the Defendant and is therefore deemed admitted. The Notice to Admit has attached manufacturer's instructions (Deposition Exhibit 41) by which it is admitted that those instructions were for the Posey wrist restraints used to restrain Joanne Rink on June 6, 2007.
Claimant also seeks the manufacturer's insert instructions and all other manufacturer's instructions for the Encore Restraint Vest used upon Mrs. Rink on June 6, 2007. This was apparently first demanded on April 17, 2009, by letter. Due to the many discovery disputes, Court staff directed Claimant to make a formal written demand. A formal demand was made by Notice for Production of Documents dated August 31, 2009. A motion (M-77027) was made to enforce the production of the instructions and the packaging. In this Court's Decision and Order filed April 10, 2010, Defendant was directed to provide those instructions to Claimant within 20 days of April 10, 2010. On May 4, 2010, Defendant purportedly attached all of the instructions and inserts available for the Encore Vest Restraints. Counsel for Defendant indicated that the actual instructions from the restraint vest used upon Mrs. Rink could not be located, and the company that made the restraints had changed hands and made some minor modifications to the package inserts since this incident but retained no copies of the previous instructions. After a deposition held on August 18, 2010 of the Inventory Manager of the Hospital, Claimant was provided a copy of the manufacturer's instructions from an Encore Restraint Vest currently stocked as part of the hospital's inventory.These instructions were apparently different from the version provided by Defendant in its May 4, 2010, responses. Claimant seeks sanctions against Defendant for failing to provide the relevant instructions.
Deposition Exhibit 56, Exhibit H attached to Claimant's Motion documents.
Claimant also seeks to serve interrogatories relating to the Encore Vest Restraint and Posey Wrist Restraints used on Mrs. Rink and to determine what the hospital's restraint policy was on June 6, 2007. Defendant's counsel asserts that Claimant should not be allowed to use interrogatories in this case, and that the information that he seeks is unduly burdensome since no one person or document has all the information requested.
Claimant notes, in relation to the hospital restraint policies, that he has tried to obtain this information and has been provided with two different restraint policies with different original and revision dates (Policy No. R-06 of Administrative Policy Manual of University Hospital, and Clinical Manual Policy No. CM R-13). Defendant opposes this request and indicates that witnesses were produced in good faith based upon the type of information Claimant sought. Defendant also notes that 32 depositions of various hospital employees have already been conducted, and that the witness who Claimant complains did not have the historical knowledge of the hospital restraint policy which Claimant sought, provided the names of a number of people who might have the information and knowledge sought.
Clearly, the actual instructions for the vest restraint used upon Mrs. Rink on June 6, 2007 are relevant given that following the instructions is a requirement of the Hospital's Restraint Standards Policy.Claimant is entitled to this information and it is an important component of Claimant's case. Defendant should have been aware of the potential importance of this document since it was a component of the hospital's guidelines for the use of the restraints (see Iannucci v Rose, 8 AD3d 437, 438 [2nd Dept 2004]). Defendant has been unable to locate the manufacturer's instructions from the specific packaging from which the Encore Restraint Vest used upon Mrs. Rink was removed. Nor has Defendant been able to produce a copy of the manufacturer's instructions from identical packaging for another Encore Restraint Vest from the same manufacturer and stocked by the hospital in June 2007. These documents were clearly in the possession of the State at the time the restraints were used upon Mrs. Rink, yet, it seems no one knows where they went and cannot produce the originals or a copy at this time. The Court does not find Defendant's failure to produce these instructions intentional or wilful. Accordingly, it seems to the Court, under these circumstances, at trial, if admissible, the Court will infer that the manufacturer's instructions for the Encore Restraint Vest used upon Mrs. Rink on June 6, 2007, produced on August 19, 2010, and attached to Claimant's motion as Exhibit I, are the applicable manufacturer's instructions.
See Claimant's Affirmation, M-79715, Exhibit C, page 4, under "4. Restraint Orders" and "Acute Care," "Duration."
Claimant's request to serve Interrogatories Nos. 1 and 2 is granted to the extent set forth below. Claimant has not shown why the process by which the Encore vest restraint and the Posey wrist restraint were approved for use at the hospital is material and necessary to whether the State was negligent in its treatment and care of Mrs. Rink on June 6, 2007. It is undisputed that the State used these restraints on Mrs. Rink and that they were approved for use in the hospital (since all of the proposed interrogatories assume the fact that these restraints were approved, and William Terry, the hospital's Inventory Manager, testified every product in inventory had to be approved for use before it could be purchased). The Court will allow Claimant to serve Interrogatory No. 1 (a), (e), and (f) and Interrogatory No. 2 (a), (e), and (f). Defendant should also provide the names and positions of the people who are knowledgeable about the development and approval of the Restraint Policy in effect at the hospital on June 6, 2007. Defendant should also provide the names of individuals and their positions who are knowledgeable about the training, instruction and certification of hospital personnel in the use of restraints and the process of recertification. The Court will also allow Claimant to serve Interrogatory No. 3 (a), (b), and (c). The balance of this interrogatory seeks information that could have been obtained by the health care providers who made the determination to use restraints on Mrs. Rink on June 6, 2007, and would not have been information that Linda McLeer should have had, nor is it relevant to Claimant's August 31, 2009, demand paragraphs (12) and (13). Responses to these questions should not be unduly burdensome and should be provided to Claimant within 45 days of service.
Claimant's counsel's affirmation, paragraph 30, dated April 11, 2011.
Based upon the foregoing, Claimant's motion is GRANTED IN PART as set forth herein and Defendant's motion is GRANTED IN PART as set forth herein. The balance of both motions are denied.
July 28, 2011
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these motions:
M-79713
1) Notice of Motion.
2) Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.
3) Affirmation of Walter D. Kogut, Esquire in opposition, with exhibits attached thereto.
4) Reply Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.
M-79715
5) Notice of Motion.
6) Affirmation of Walter D. Kogut, Esquire in support, with exhibits attached thereto.
7) Affirmation of Maureen A. MacPherson, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.
8) Reply Affirmation of Walter D. Kogut, Esquire, in support, with exhibits attached thereto.
9) Memorandum of Law of Walter D. Kogut, P.C., received in the Clerk's Office on April 27, 2011.