Opinion
07-2664
07-14-2011
Harold G. Miller, Jr., as Limited Administrator of the Estate of DOROTHY MILLER, Deceased, Plaintiff, v. Kingston Diagnostic Center, MARK CHICHAKLY, M.D. and DANIEL G. HAFNER, M.D., P.C, Defendants.
Robert A. Rausch, Esq. Maynard, O'Connor, Smith & Catalinotto, LLP Attorneys for Defendant Dr. Hafner Ari I. Bauer, Esq. Tarshis, Catania, Liberth, Mahon & Milligram, PLLC Attorneys for Defendant Kingston Diagnostic Center One Corwin Court James Lofrese, Esq. Traub, Lieberman, Strauss & Shrewsberry, LLP Attorney for Defendant Dr. Mark Chichakly Mid-Westchester Executive Park Derek J. Spada, Esq. Basch & Keegan, LLP Attorney for Plaintiff
Robert A. Rausch, Esq. Maynard, O'Connor, Smith & Catalinotto, LLP Attorneys for Defendant Dr. Hafner
Ari I. Bauer, Esq. Tarshis, Catania, Liberth, Mahon & Milligram, PLLC Attorneys for Defendant Kingston Diagnostic Center One Corwin Court
James Lofrese, Esq. Traub, Lieberman, Strauss & Shrewsberry, LLP Attorney for Defendant Dr. Mark Chichakly Mid-Westchester Executive Park
Derek J. Spada, Esq. Basch & Keegan, LLP Attorney for Plaintiff
Gerald W. Connolly, J.
Currently before the Court in this action alleging medical malpractice in the death of Dorothy Miller are the motions of Defendants (i) Daniel G. Hafner, M.D., P.C., (ii) Kingston Diagnostic Center, and (iii) Mark Chichakly, M.D. seeking an Order of the Court (a) compelling plaintiff to send a letter to Dr. Donovan, one of plaintiff decedent's treating physicians, retracting any objectionable letters previously sent to plaintiff and/or withdrawing and correcting any such letter regarding plaintiff's Arons authorization, (b) providing defendants a copy of such letter, and (c) imposing costs and sanctions and attorneys fees incurred in the making of such motions . Plaintiff opposes the motion.
Such motions are now limited to a letter sent to Dr. Donovan as no such letters were sent to any of decedent plaintiff's treating physicians other than the March 23, 2011 letter to Dr. Donovan.
Defendant Chichakly served plaintiff with a demand for Arons authorizations from any of plaintiff decedent's treating oncologists, including Dr. Donovan. Plaintiff's counsel sent all defendants such authorizations, also sending, however, a letter dated March 23, 2011 to Dr. Donovan. Such letter provided, in pertinent part, as follows:
"Enclosed please find copy of the "Aron's"authorization, executed by Harold G. Miller, on behalf of the Estate of Dorothy Miller which the court has directed we provide to defense counsel. This authorization permits the defense attorney an opportunity to speak with you regarding the care and treatment you rendered to Ms. Miller, relative to the incident in question.
The Courts are clear that it is up to the treating physician to make a decision as to if, when and where to meet. The Court also clearly permits a doctor to charge whatever is reasonable and necessary for such meeting to compensate the doctor for his lost time.
As the attorney representing the plaintiff, I am requesting the right to be present when you speak with defense counsel.
I assure you and defense counsel that I will not speak, comment or in any way interfere with your conversation.
Ultimately, the decision to meet with a defendant's attorney, with or without the presence of the plaintiff's counsel, is completely up to you. You are not under any obligation to meet with the defense attorney or to allow me to be present if you decide to meet with the defense attorney.
By copy of this letter to defense counsel, I am putting them on notice of my request that I will await notification, if any, from your office should you determine to permit me to be present if you decide to speak with defense counsel."
Defendants argue that plaintiff may not impose limitations upon the Aron's authorizations including allegedly advising a treating physician of their right not to participate and seeking permission to attend such interview. Defendants argue that plaintiffs cannot take any steps to interfere with such physicians speaking with defense counsel. Defendants each cite, inter alia, to the cases of Kleeschulte v Blair, 20 Misc 3d 1141(A) (Sup. Ct., Ulster County, 2008, Lynch, J.) and Prindle v. Aronowitz, Index No. 2005-0690 (Sup. Ct., Schenectady County, July 17, 2008, Catena, J.).
In Kleeschulte and Prindle, the Courts held that letters sent to treating physicians unduly interfered with defendants' rights under Arons. Based upon a review of the record, however, the letter at issue in this case, is distinguishable from that in Kleeschulte and Prindle. As noted by the Court of Appeals in Arons, "physicians remain entirely free to decide whether or not to cooperate with defense counsel" (Arons v Jutkowitz, 9 NY3d 393, 407 [2007]). Here, the letter from plaintiff's counsel is not threatening or intimidating. Such letter notes that the treating physician's participation in such interview is voluntary and requests the right to be present, noting, however, that such presence by plaintiff's counsel is not required. Such letter was made on notice to defendants' counsel and such letter requested no further communication unless such physician was willing to permit plaintiff's counsel to be present at the interview.
Further, defendants have failed to demonstrate that the Arons' decision precludes such a request, particularly in a case such as this where plaintiff's letter makes clear that plaintiff's counsel has no right to be present at such interview and counsel is not insisting that it be present.
The Court does not find that such letter has interfered with defense counsel's right to ask for an ex parte interview with Dr. Donovan, decedent plaintiff's treating physician (see generally, Peluso v C.R. Bard, Inc., 2010 NY Slip Op 32595U [Sup. Ct., New York County, September 21, 2010, Lobis, J.]).
Accordingly, based on the record before the Court, it is hereby
ORDERED that the motions of the defendants are each denied in their entirety.
This shall constitute both the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for plaintiff. The below referenced original papers are being mailed to the Ulster County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.
SO ORDERED.
ENTER.
Kingston, New York
Gerald W. Connolly
Acting Supreme Court Justice
Papers Considered:
1.Notice of Motion dated May 5, 2011; Attorney Affidavit of Robert A. Rausch, Esq. dated May 5, 2011 with accompanying exhibits;
2.Affirmation in Support of James J. Lofrese, Esq. dated May 13, 2011; Notice of Cross-Motion of James J. Lofrese dated June 8, 2011; Attorney's Affirmation dated June 8, 2011 with accompanying exhibits;
3.Notice of Motion dated June 2, 2011; Attorney's Affirmation of Ari I. Bauer, Esq. dated June 2, 2011 with accompanying exhibits;
4.Affirmation in Opposition of Derek J. Spada, Esq. dated June 8, 2011;
5.Reply Affidavit of Robert A. Rausch, Esq. dated June 15, 2011;
6.Reply Affirmation of Ari I. Bauer, Esq. dated June 15, 2011;
7.Affirmation in Reply of James J. Lofrese, Esq. dated June 21, 2011;
8.Letter from Plaintiff's Counsel dated June 21, 2011.