Opinion
No. 13–0420.
04-07-2015
Joyce LAMPASONA, Plaintiff, v. Benjamin OKE, M.D., Rakel Maria Astorga, M.D., Timothy Folsom Shepard, M.D., Eric Li, M.D., Phillip Lynch, M.D., The Columbia Memorial Hospital, Columbia Memorial Physician Hospital Organization, Inc., Twin County Medical Associates, P.C., The Columbia Memorial Hospital d/b/a Columbia Memorial Family Care, The Columbia Memorial Hospital d/b/a Columbia Memorial Surgical Associates, Prime Columbia Greene Medical Associates, P.C., Millennium Medical Imaging, P.C., The Columbia Memorial Hospital d/b/a Columbia Memorial Pathology, The Columbia Memorial Hospital d/b/a Columbia Memorial Lab Blood Draw, Defendants.
Cynthia S. LaFave, Esq., LaFave, Wein & Frament, PLLC, Guilderland, NY, Counsel for Plaintiff, Cross–Movant, Joyce Lampasona. Aaron F. Carbone, Esq., Maynard, O'Connor, Smith & Catalinotto, LLP, Albany, NY, Counsel for Defendant, Movant, Rakel Maria Astorga, M.D. Mandy McFarland, Esq., Albany, NY, Counsel for Defendant, Movant, Timothy Folsom Shepard, M.D. and Millennium Imaging, P.C. Thomas A. Cullen, Esq., Burke, Scolamiero, Mortati & Hurd, LLP, Albany, NY, Counsel for Defendant, “Cross–Movant” Benjamin Oke, M.D. Sholes & Miller, LLP, Poughkeepsie, NY, Counsel for Defendant, Columbia Memorial Hospital Prime Medical. Silverson, Pareses & Lombardi, LLP, New York, NY, Counsel for Defendant, Philip Lynch, M.D. O'Connor, O'Connor, Bresee and First, P.C., Albany, NY, Counsel for Defendants, Columbia Memorial Hospital; Columbia Memorial Physician Hospital Organization, Inc.; The Columbia Medical Hospital d/b/a/ Columbia Memorial Family Care; Columbia Memorial Hospital d/b/a/ Columbia Memorial Surgical Associates; The Columbia Memorial Hospital d/b/a Columbia Memorial Pathology The Columbia Memorial Hospital d/b/a Columbia Memorial Lab Draw; and Eric Li, M.D.
Cynthia S. LaFave, Esq., LaFave, Wein & Frament, PLLC, Guilderland, NY, Counsel for Plaintiff, Cross–Movant, Joyce Lampasona.
Aaron F. Carbone, Esq., Maynard, O'Connor, Smith & Catalinotto, LLP, Albany, NY, Counsel for Defendant, Movant, Rakel Maria Astorga, M.D.
Mandy McFarland, Esq., Albany, NY, Counsel for Defendant, Movant, Timothy Folsom Shepard, M.D. and Millennium Imaging, P.C.
Thomas A. Cullen, Esq., Burke, Scolamiero, Mortati & Hurd, LLP, Albany, NY, Counsel for Defendant, “Cross–Movant” Benjamin Oke, M.D.
Sholes & Miller, LLP, Poughkeepsie, NY, Counsel for Defendant, Columbia Memorial Hospital Prime Medical.
Silverson, Pareses & Lombardi, LLP, New York, NY, Counsel for Defendant, Philip Lynch, M.D.
O'Connor, O'Connor, Bresee and First, P.C., Albany, NY, Counsel for Defendants, Columbia Memorial Hospital; Columbia Memorial Physician Hospital Organization, Inc.; The Columbia Medical Hospital d/b/a/ Columbia Memorial Family Care; Columbia Memorial Hospital d/b/a/ Columbia Memorial Surgical Associates; The Columbia Memorial Hospital d/b/a Columbia Memorial Pathology The Columbia Memorial Hospital d/b/a Columbia Memorial Lab Draw; and Eric Li, M.D.
LISA M. FISHER, J.
Plaintiff brought this medical malpractice action against Defendant hospitals, facilities, and physicians alleging that Defendants were negligent in failing to properly diagnose and appropriately treat Plaintiff's cancer in a timely fashion. The present issue before the Court is whether Plaintiff is required to disclose Arons authorizations for merely two health care providers—one provider who performed the last diagnostic test by Defendants but is not named in the caption, and another provider who has not been identified by any party other than by name. Particularly at issue is whether Plaintiff must provide the demanded Arons authorization prior to Defendants' depositions.
The Court attempted to efficiently dispose of this issue at the status conference held on February 5, 2015. This issue was raised in Maynard O'Connor's statement of contentions submitted prior to the conference. Plaintiff's statement of contentions rejected the notion that Arons authorizations were owed, averring such authorizations did not need to be provided prior to the filing of the note of issue. Plaintiff also argued the Defendants' requests were deficient because they did not specify a treating physician and did not specify an attorney at the firm with whom the requested physician would speak with. During the status conference, the Court addressed this issue to which Plaintiff opposed producing Arons authorizations prior to the filing of the note of issue. The Court's notes reflect none of the Defendants rebutted Plaintiff's arguments. In fact, no defense counsel spoke as to the Arons authorizations issue—it was the Court which brought the issue up per the Defendant's statement of contentions. Nor did any Defendant raise the issue of a second deposition in their statement of contentions or at the status conference.
Subsequently, Defendant, Rakel Maria Astorga, M.D., moved to 1) compel Plaintiff to produce outstanding Arons authorizations within thirty (30) days or the action should be dismissed, 2) compel a second deposition of Plaintiff ninety (90) days after the production of the Arons authorizations, and 3) for costs and fees for frivolous conduct as the Court may deem just. This relief was joined in by Defendants, Timothy Folsom Shepard, M.D. and Millennium Imaging, P.C., and Defendant, Benjamin Oke, M.D. Combined, these three sets of Defendants made five (5) demands and fifteen (15) good faith requests to Plaintiff for Arons authorizations over a period of a year and a half (1½) since the first demand. However, the record does not contain—and Plaintiff does not contend to—have responded to any of these demands or requests except for her statement of contentions to the Court.
In return, Plaintiff cross-moves for a protective order 1) withholding Plaintiff's disclosure of the Arons authorizations until Defendants have been deposed, 2) striking Defendants' defective demands for Arons authorizations, 3) denying Defendants' respective motions in their entirety, and 4) other such relief the Court may deem just and proper. Plaintiff's cross-motion somewhat retreats her position from the status conference, and appears to at least implicitly acknowledge Arons authorizations are proper prior to the note of issue if so demanded. However now, Plaintiff argues that the Court of Appeals' decision in Arons v. Jutkowitz, 9 NY3d 393 (2007), does not permit Defendants an “unqualified” right to ex parte conversations with Plaintiff's treating physicians at the expense of Plaintiff's right to the “spontaneous, uncolored deposition testimony of each defendant.” Thus, such authorizations are not owed until after Defendants have been fully deposed. Plaintiff further argues ex parte conversations by Defendants with Plaintiff's treating physicians will just as likely help Defendants prepare for the defense of their own deposition as it will help them prepare for Plaintiff's deposition. As such, Plaintiff claims this unfairly advantages Defendants because they already share knowledge amongst co-Defendants while Plaintiff can only obtain such information through depositions. Lastly, Plaintiff claims Defendants are not entitled to costs and fees because Plaintiff's actions are not frivolous.
Disclosure Standard and the Physician
Patient Privilege
The general scope of disclosure is governed by CPLR § 3101(a), which provides that “[t]here shall be full disclosure of all matter material and necessary in the ... defense of an action....” The phrase “material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” (Allen v. Crowell–Collier Pub. Co., 21 N.Y.2d 403, 406 [1968] [“The test is one of usefulness and reason.”].) This interpretation is one of relevancy, not admissibility. (See Allen, 21 N.Y.2d at 406–07.) Ever since the 1993 amendment to Section 3101(a), which broadened the scope of disclosure (see L 1993, ch 98, §§ 1–2), “the courts have continued to enlarge the permissible use of pre-trial procedure' begun under the former statute.” (Allen, 21 N.Y.2d at 407, quoting Rios v. Donovan, 21 A.D.2d 409, 411 [1st Dept 1964] ; accord JMJ Contract Mgt. v. Ingersoll–Rand Co., 100 A.D.2d 291, 292 [3d Dept 1984].)
It is well-established that “[a] litigant will be deemed to have waived the [physician-patient] privilege when, in bringing [ ] a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue.” (Dillenbeck v. Hess, 73 N.Y.2d 278, 278 [1989] [reasoning that “a party should not be permitted to affirmatively assert a medical condition in seeking damages or in defending against liability while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its effects to uncover facts critical to disputing the party's claim.”], citing Koump v. Smith, 25 N.Y.2d 287 [1969] ; accord Iseman v. Delmar Med.-Dental Bldg., 113 A.D.2d 276, 278 [3d Dept 1985] [“Waiver by a privileged plaintiff may be accomplished by express consent or indirectly by commencing a personal injury action ....“] [citations omitted].) Such “[w]aiver [a]lmost invariably' occurs in personal injury action[s] since the proof in such cases includes the nature and extent of a plaintiff's injuries.” (Iseman, 113 A.D.2d at 279, quoting Hughson v. St. Francis Hosp. of Port Jervis, 93 A.D.2d 491, 500 [2d Dept 1983].) Thus, a plaintiff is required to sign HIPAA-complaint authorizations where the physician-patient privilege has been waived. (See Arons v. Jutkowitz, 9 NY3d 393, 415–16 [2007] ; see also Congleton v. United Health Servs. Hosps., 67 AD3d 1148, 1150–51 [3d Dept 2009] [“Given [the physician-patient] waiver, defendants were entitled to full disclosure regarding decedent's medical treatment, if any, prior to the date of the alleged negligence, including the furnishing of medical authorizations for those records.”] [citations omitted].)
Here, it is clear Plaintiff waived her physician-patient privilege as to her treating physicians by commencing this medical malpractice action. Turning to the requests, Defendants collectively seek Arons authorizations for Plaintiff's treating physicians, particularly referencing Boris Spektor, M.D., and Jean Talbot, M.D. The Court reviewed the annexed exhibits and Plaintiff's Verified Bill of Particulars she submitted at the status conference. Plaintiff lists Dr. Spektor as an attending who ordered a CT scan on November 13, 2012, which is the last test date that Plaintiff listed as performed by the “Columbia Memorial Defendants.” The Court finds this highly relevant, if not indispensable, to the defense of this matter. (See CPLR § 3101[a].)
Explicitly sought by Defendant Astorga only.
As to Dr. Talbot, Plaintiff's counsel avers they searched for Dr. Talbot and could not find her using New York State's physician look-up website. Defendant Astorga entirely omits this issue in his reply. However, in the Court's own internet search, the Court quickly found multiple Jean Talbots—including physicians, physician assistants, psychologists, and psychiatrists—in New York and in nearby Massachusetts. Since Defendant Astorga has not addressed which Dr. Talbot he seeks and what role she had in Plaintiff's treatment and care, and the Court found no information relating to Dr. Talbot in the record, the Court agrees with Plaintiff's position and cannot make a finding that Dr. Talbot is relevant or that Defendants are entitled to an Arons authorization from her. This is without prejudice and the Court notes that if the proper Dr. Talbot is subsequently identified and is relevant, the Court expects an Arons authorization should be provided in a manner consistent with this Decision and Order and without unnecessary intervention.
Validity and Temporal Applicability of the Arons Authorizations
The Court now turns as to whether the requested authorizations are properly demanded. In addition to the broadening scope of disclosure, the Court of Appeals in Arons emphasized the importance of informal disclosure to advance the proceedings. (See Arons, 9 NY3d at 406–08, citing Niesig v. Team I, 76 N.Y.2d 363 [1990] [permitting in personal injury action ex parte communications with the defendant-corporation's employees unless 1) such employees' acts or omissions in the matter under inquiry are binding on the corporation or could be imputed to the corporation for the purposes of liability, or 2) the employees are implementing the advice of counsel]; also citing Muriel Siebert & Co., Inc. v. Intuit Inc., 8 NY3d 506 [2007] [permitting the ex parte communication of the plaintiff-corporation's former executive, who helped draft the complaint, disclosure responses, and the litigation strategy prior to his termination, so long as privileged or confidential information was not revealed by the former executive].)
In a medical malpractice context, the Court of Appeals in Arons also found that “[w]e see no reason why a nonparty treating physician should be less available for an off-the-record interview than the corporate employees in Niesig or the former corporate executive in Siebert. ” (Arons, 9 NY3d at 409.) The Court of Appeals acknowledged that such communications with an adverse party's treating physicians historically occurred after the note of issue (Arons, 9 NY3d at 410 ), but found this inapposite to the established law and “emphasiz[ed] that the filing of a note of issue denotes the completion of discovery, not the occasion to launch another phase of it.” (Arons, 9 NY3d at 412 [stating “[w]hile interviews may still take place post-note of issue, at that juncture in the litigation there is no longer any basis for judicial intervention to allow further pretrial proceedings absent unusual or unanticipated circumstances' and substantial prejudice.' “]; see also Shefer v. Tepper, 73 AD3d 447, 447 [1st Dept 2010] [“the Court of Appeals [in Arons ] expressly rejected the long-standing practice of proscribing such interviews only after the note of issue was filed, and otherwise made it clear that the preferred time for such disclosure was before the filing of a note of issue.”]; Wright v. Stam, 81 AD3d 721, 722 [2d Dept 2011] [“Contrary to the plaintiff's contention, the decision of the Court of Appeals in [Arons ] does not prohibit defense counsel from conducting an ex parte interview with a nonparty physician before a note of issue has been filed.”]; 22 NYCRR § 202.21 [b] [requiring the certificate of readiness to certify that all disclosure is completed, waived, or not required and that the action is ready for trial].)
While it is crystal-clear from Arons and progeny that HIPAA-compliant authorizations permitting an opposing party to obtain records and interview a non-party treating physician ex parte is permissible both before and after the filing of the note of issue, the Court of Appeals did not provide any further temporal guidance as to whether such authorizations are appropriate before or after a party's deposition—particularly the defendant(s) deposition(s). There is a lack of legal authority addressing this issue.
Plaintiff strongly argues that disclosure prior to the depositions will create tailored testimony and be prejudicial because it “run[s] contrary to Plaintiff's right to the spontaneous, uncolored deposition testimony of each defendant[.]” Plaintiff notes that the Court has “broad discretion” in supervising disclosure, including protecting a party's right to a spontaneous and uncolored deposition. Plaintiff further argues that the Court has the power to obviate the danger of tailored testimony, and should do so here by permitting the Arons authorizations to be submitted until after Defendants' depositions. Plaintiff cites to various cases for support, including some of “the most famous example[s]” of courts avoiding tailored testimony involving surveillance videotapes.
Defendants disagree, arguing Plaintiff's claims are meritless and speculative. Defendant Astorga also makes a procedural argument claiming Plaintiff's conduct is violative of CPLR R. 3120 and R. 3122. Specifically, Defendants rely on LaRose v. Cricchio, 33 Misc.3d 865 (Sup.Ct. Rockland Co.2011), wherein the plaintiffs argued they were not required to provide Arons authorizations until after the defendant had been fully deposed as to his personal knowledge of the case to prevent “colored or skewed by after-acquired information” obtained through ex parte communications. The court in LaRose disagreed, finding that the defendant's deposition was not a condition precedent to the acquisition of Arons authorizations. (LaRose, 33 Misc.3d at 868.) Further, the LaRose court held that the plaintiffs' waiver of the physician-patient privilege did not allow them to place further conditions upon furnishing the HIPAA-compliant authorizations other than the mandates enumerated in Arons. ( LaRose, 33 Misc.3d at 869.)
Even though LaRose is non-binding, it is still valuable and rather persuasive authority. Whereas Plaintiff's famous examples are actually contrary to Plaintiff's position. Namely, Plaintiff relies on DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184 (1992), which has been superseded by both statutory law (L 1993, ch 574) and most notably the Court of Appeals in Tai Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383 (2003). Like the temporal issue regarding the Arons decision, the issue after the legislature's 1993 passage of CPLR § 3101(i) became when are surveillance tapes properly disclosed—before or after depositions? The Court of Appeals in Tai Tran resolved this issue, holding that the amendment significantly altered DiMichel and “notwithstanding the danger of tailored testimony, section 3101(i) requires full disclosure with no limitation as to timing[.]” (Tai Tran, 99 N.Y.2d at 389–90.)
While the Court is not bound to the decision in Tai Tran as to Arons authorizations, such decision is instructive here. If the Court of Appeals did not find that surveillance tapes of the plaintiff who was secretly filmed doing tasks he claimed he could no longer do because of his injuries would not result in tailored testimony and prejudice if disclosed prior to his deposition, the medical records of an objective test result by one provider who conducted such test two years after the alleged malpractice is not going to be more prejudicial and likely to produce tailored testimony than the video footage in Tai Tran. Thus, Plaintiff's reliance on DiMichel as an absolute shield to tailored testimony fails.
Further, the Court fails to see any dangers in providing Defendants with an Arons authorization for Dr. Spektor. Dr. Spektor's involvement in this matter appears to be limited to one test, the last test allegedly conducted by Defendants according to Plaintiff's Verified Bill of Particulars. The crux of Plaintiff's case appears to be that Defendants failed to timely diagnose and treat Plaintiff's cancer from the November 10, 2010 biopsy—which was malignant but Defendants conveyed to Plaintiff it was benign. The claims do not appear to be that the biopsy test results were misread, but rather miscommunicated to Plaintiff and/or misplaced by Defendants. Dr. Spektor's single test two years later has little impact of Defendants' negligence in November 2010 and up until the last test in November 2012. Plaintiff has utterly failed to provide any specificity as to how this one test could possibly create the tailored testimony—Plaintiff's fears are merely speculative.
Defendant Astorga's further procedural arguments support his position—particularly as to the timeliness of Plaintiff's objection. Although some courts are forgiving as to a party's failure to object to disclosure under CPLR R. 3122, Plaintiff's blatant disregard of at least twenty (20) demands and good faith attempts is not unnoticed. Plaintiff's counsel then claims they made a “good faith” attempt after the status conference on February 10, 2015, but Defendants never called back and are now somehow at fault for not resolving this issue with motion practice. The Court notes that Plaintiff's “good faith” attempt consisted of two attorneys from Plaintiff's office who “made our position clear that we would release appropriately demanded Arons authorizations after depositions were concluded.” As discussed herein, Plaintiff's position is wrong. As such, this white-hat argument by Plaintiff fails and Defendants were not obligated to press further. (See Scaba v. Scaba, 99 AD3d 610, 611 [1st Dept 2012] [hold that, where further good faith attempts would have been futile without judicial intervention, the movant is excused compliance with 22 NYCRR § 202.7 ]; accord Qian v. Dugan, 256 A.D.2d 782 [3d Dept 1998].)
Remaining Contentions
Plaintiff's remaining arguments that she is at a disadvantage because co-Defendants can share information or can freely access information at the Defendant Hospital. However, these are the circumstances faced by litigants commencing an action against any large entity—whether that be a hospital or a large corporation. The Court is mindful of its role in preventing prejudices as to this very issue, but given the reasoning above, Plaintiff suffers no prejudice from providing Dr. Spektor's Arons authorization prior to depositions given his limited—but important—involvement. The Court further notes that the decisions in Aron, Muriel Siebert, and Niesig expanded a party's ability to combat large corporations and somewhat alleviate the very horrors Plaintiff complains herein.
The Court does agree with Plaintiff that Defendants' Arons authorizations must be attorney-specific rather than law firm-specific. (See Akalski v. Counsell, 2010 WL 4412335, at *3 [Sup.Ct. N.Y. Co. Oct. 18, 2010], citing Mahr v. Perry, 74 AD3d 1030 [2d Dept 2010].) The Court further notes that the Office of Court Administration's Arons -complaint HIPAA form requires the “Defense Attorney's Name and Address.” This is contrasted by the Office of Court Administration's normal HIPAA-complaint form, which only requires the name and address of the person(s) or the category of persons, i.e., a law firm. This does not, however, provide an aegis for Plaintiff to hide behind and warrant denial of Defendants' motion to compel—particularly given that such objection by Plaintiff was not timely raised.
As to Defendants' request for a second deposition of Plaintiff based on their claim that they did not have an ex parte interview with Dr. Spektor, this is denied in its entirety. Defendants' failed to comply with the Third Judicial District's Rules and the Court's Local Rules regarding disclosure issues. (See Local Rule 9.0[C].) At the status conference, the Court's notes indicate none of the Defendants rebutted Plaintiff's argument that she was not going to provide Arons authorizations until after the note of issue was filed. Nor did any Defendant make any request for a second deposition in its statement of contentions or during the conference. The Third District's Rules and the Court's Local Rules make it very clear that disclosure related issues must be raised at a conference prior to filing a motion. This condition precedent was not complied with and the Court denies this relief, without prejudice. The Court does note, however, it would likely have denied such proper request as Defendants have failed to establish why the second deposition of Plaintiff is warranted.
Defendants also seek costs and sanctions against Plaintiff. Costs and sanctions for frivolous conduct in civil litigation is governed under 22 NYCRR § 130–1.1. Subdivision (a) provides that a “court, in its discretion, may award to any party or attorney ... costs in the form of reimbursement for actual expenses reasonable incurred ... resulting from frivolous conduct as defined in this Part.” A party or attorney's conduct is frivolous if “(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or malicious injury another; or (3) it asserts material factual statements that are false.”
The Court declines to apply costs and sanctions against Plaintiff, even though the Court is concerned that Plaintiff is attempting to unreasonably delay or prolong production of Arons authorizations until this dispute was moot (i.e., until depositions are concluded). This is evinced in that one Defendant deposition has already occurred without the Arons authorization being produced. However, Defendants do not argue frivolous conduct as to the delay (subdiv.[2] ), but rather as to a meritless argument (subdiv.[1] ). The Court disagrees with Defendants' argument and will not otherwise make a delay argument for them. The Court further notes that, while Plaintiff's position as to Dr. Skeptor is somewhat unreasonable, equally so is Defendants' request for the nebulous Dr. Talbot.
The Court has considered the parties' other arguments and found that they are similarly unavailing or rendered academic.
Thereby, it is hereby
ORDERED that Defendant, Rakel Maria Astorga, M.D.'s, motion to compel an Arons authorization for Boris Skeptor, M.D., is GRANTED, and all other relief requested therein is DENIED in its entirety; and it is further
ORDERED that Defendants, Timothy Folsom Shepard, M.D. and Millennium Imaging, P.C.'s, motion to compel an Arons authorization for Boris Skeptor, M.D., is GRANTED, and all other relief requested therein is DENIED in its entirety; and it is further
ORDERED that Defendant, Benjamin Oke, M.D.'s, “cross-motion” to compel an Arons authorization for Boris Skeptor, M.D., is GRANTED, and all other relief requested therein is DENIED in its entirety; and it is further
ORDERED that Defendants' motion to compel a second deposition of Plaintiff is DENIED in its entirety, without prejudice; and it is further
ORDERED that Defendants must provide attorney-specific Arons authorizations to Plaintiff along with service of Notice of Entry; and it is further
ORDERED that Plaintiff, Joyce Lampasona's, cross-motion for a protective order and to strike is GRANTED as to Defendants' demand for an Arons authorization for Jean Talbot, M.D., and, all other relief requested therein is DENIED in its entirety; and it is further
ORDERED, that Plaintiff shall provide Defendants a duly executed Arons authorization for Boris Skeptor, M.D. within thirty (30) days of service of Notice of Entry of this Decision and Order on Plaintiff, otherwise Plaintiff's failure to serve such Arons authorization is a violation of this Court's Order and Defendants' motion to dismiss the Summons and Complaint pursuant to CPLR § 3126 is GRANTED.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to Defendant Astorga, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.