Mora v Saint Vincent's Catholic Med. Ctrs. of N.Y.
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Mora v Saint Vincent's Catholic Med. Ctrs. of N.Y. 2005 NY Slip Op 30497(U) March 4, 2005 Supreme Court, New York County Docket Number: 113944/03 Judge: Stanley L. Sklar Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YQRK - NEW YORK COUNTY . J - Justice 01 13944/2003 MORA, WANDA DEX NO. vs S'T. VINC1EN'I"S CAT IOLK MEDI C'A 1 , OTlON DATE OTlON SEQ. NO. SUQ 2 OTION CAL. NO. - C'OMPET., The following papers, numbered 1 to P w were read on this motion tolfor 1 LJ PAPERS NUMBERED Notice of Motion/ 0 - Answering Affidavits /- Exhibits Check one: I ,. Replying Affidavits Dated: -- -- - / P / Lt' FINAL DISPOSITION Check if appropriate: J. s. c. ?ON-FINAL DISPOSITION N_ U DO NOT POST I __ -- ~ ... . . . . . .. - . [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOKK: PART 29 .................................................................... X WANDA MORA, Plaintiff, Indcx No.: 113944/03 SAINT VINCENT S CATHOLIC MEDICAL CENTEKS OF NEW YORK, YUN HSI HSU, M.D., Motions 002 and 003 arc hcrcby consolidatcd for disposition. Defendant Dr-. Yuii Hsi Hsu inoves (003) for an order compelling plaintifl to provide outstanding discovery in the form of authorizations and precluding plaintiff for her failure to provide such discovery. Dr. Hsu also seeks an order adjourning plaintiff s deposition until appropriate discovery is exchanged. It is claimed that only a limited number of authorizations havc bccn providcd and that thosc providcd wcre improperly limited in timc and scope. Defendant St. Vincent s Catholic Medicul Centers of Ncw York- St. Vincent s Statcn Island, s/h/a/ Saint Vincent s Catholic Medical Centcrs of New York ( thc hospital ) moves (002) for an order compclling plaintiff to provide outstanding authorizations and adopts the argumcnts madc on bchalf of Dr. Hsu, noting without furthcr claboration that plaintiff has Both motions refer to discovcry dcmands, sornc of which requcstcd more than mtliorizations, but the only discovery items specifically addressed on these motions wcrc authorizations. I shall therefore limit this application to a request for authorizations. If something more is sought dcfcndants can again rcqucst thc itcms from plaintiff s counsel, raisc it at the next conference or if they are so advised seek relief by any appropriatc motion. [* 3] provided only a hand flu1 of authorizations which aulhorizations wcrc in any event improperly limiled as to timc pcriods and the nature o f treatmcnt. On March 25, 2002 plaintiff, Wanda Mora, sought trcatmcnt at the hospital s Bailey Scton campus for pain and swelling in thc area of her right sdivary gland. The hospital assigned her to Dr. HSU who allegedly diagnosed Mora as having a right submandibular cyst. Dr. Hsu opcrated on Mora on March 27, 2002 and in his operative report claimed to have removed Mor3 s right submandibular gland. Howcvcr according to plainiiff s counsel such gland had been removed on Novernbcr 16,2000 by a Dr. David Godin of thc hospital s Manhattan campus. It is claimed that Dr. T-Tsu negligently resected Mora s lingual nerve during the surgery he performed. As a rcsult Mora alleged in her bill of particulars that she experienced swelling, tcndci-ncss, tongue numbness, conscious pain and suffering , loss of enjoyment of life and TI inability Lo speak, cat or diink properly. Mora s bill of prticulars furthcr alleges that defendants failed to elicit specifics of thc plaintiff s history and failed to obtain a past surgical history, and review past rncdical records of the plainiiff prior to the surgcry . It is also claimcd that defendants failcd to obtain and review C scans . According to Mora s counscl Mora was T diagnoscd by Dr. Mark Persky of Beth Israel Medical Ccnter with right lingual ncrvc dysfunclion, and on Octobcr 14, 2002 Mora underwent light neck exploration and an attempted lingual nerve identification and possible reconstructive nerve graft, which could not be performed because the nervc was absent. According to Dr. Hsu s counsel, she is aware from Bailey Seton Hospital records of a January 1I , 1998 emcrgcncy room visit that Mora had coinplaints of difliculty in swallowing. Dr. Hsu s counscl, based on that visit as well as scveral subsequcnt hospital visits -2- [* 4] where Mora presented with complaints of p i n and difficulty in swallowing, asserts that since thcsc complaints went back Cor at least I-oui. years hefore thc surgcry at issue here (Ruddy aff. in suppoi-t y[ 24) Dr. Hsu is entitled to wthoiizations for health care providers and collateral sources coinmencing i n 1997 through the prescnt (SCC,Ruddy letter dated 6/18/04). It appears that thc authorizations in issue are those contained in exhibits A and D to Dr. Hsu s motion. Sce, LRnane AT. of good faith which refers to Joan Ruddy s letters of June 18, 2004 and July 28, 2004, as well as to Mr. Lenane s request for plaintiff to comply with Ruddy s lcttcr of Junc 18, 2004. If other authoritations are being sought defcnsc counscl can again seek them from plaintiff s counsel, raise the issue at thc ticxt conference or make any appropriate motion thcy are advised to make. Evidently Mora s counsel provided a small numbcr of the authorizations requested, some beforc thc instant motions wcrc scrvcd and others thereafter2. Bul, defense counsel asserts that some authorizations have not yet been provided and othcrs impropcrly restricted the time period to a ycar before the alleged malpracticc (SCC,cxhihit L to Ruddy moving ai f.) andor limited the iiifoimation lo be disclosed to head, neck, andor dental trcatmcnt (See authorizations appended to the opposing afhnations). Dr. Hsu s counsel further asserts that defendants are entitled to Mora s psychiatric records since she has alleged claims Tor conscious pain and suffcring and loss of enjoyment of life. Dcfcrisc counscl cvidcntly sccks such rccords going back as early as six years piior to [defendants ] involvement with this patient . Ruddy reply aff (I[ 16 . - . . _ . It is not entirely clear from the papers provided which authorizations have been provi dcd. -3- [* 5] Following a review of Ms. Ruddy s June 18, 2004 and July 28, 2004 letters, the plaintiff is dircctcd to providc, within 20 days of servicc of a copy of this order with notice o f cntry, defense counsel with unrestricted authorizations for the following providers from 1997 through thc prcscnt if she has not already donc so: Dr. Julia Basaranlar, Dr. E d w d Phillips, Dr. Bushra, Dr. Thcophiliis Okckc, Dr. Vicloriosa Phasighahjen, Dr. Carl Sceusa, Dr. Frederick Sabido, Dr. Joshua Pollack, Dr. David Godin, Dr. Mark Persky, Dr. Helen Brown Yoo, Dr. Jordan Stern, Dr. Cesar Segur-itan, Dr. Mythro Montes, Dr. James Robilotti, Dr. Robert BralI, Dr. Donald Acquafredda, Dr. Jacque Rockwood, Dr. Mark Joy, Dr. Alex Askanas, Dr. Michael Margiota, Dr. Paul Bushkuhl and any plastic surgeon who treated plaintiff with rcspcct to her ncck, hcad or mouth. These doctors wcrc primary carc physicians, ENT specialists, physicians who plaintiff already provided authorizations for, albeit limited, doctors who treated plaintiff during hospital stays involving complaints relevant to the issues in this case, a n d o r plastic surgeons who lreated the part o l plaintiff s anatomy that will likely be rclevant hcrc. To the extcnt not already provided within that same 20 day period plaintiff is dircctcd to pi-ovide dcfense counscl with unlimitcd authorizations from I997 through the present for thc collateral source records from Fidclis3, Gencsis and Mcdicaid. Within that same 20 day period plaintiff is dircctcd to providc defendants with unlimited authorizations from 1997 through the present to enable defendants to obtain plaintiff s pharmacy records from the St. George Drug Store, Maxor National Pharriiacological Services, Plaintiff s counscl indicates that the New York State Catholic Health Plan is doing business ;is Fidelis Care of New York; thus plaintiff need not provide a separate authorization for the former entity. -4- [* 6] Hook S u p - X, Tnc., Wnlgrccn Eastern, Inc., Balaji Targcc Pharmacy Coip. and Shop Rite Supermarket Phammiacy. Plaintiff is asserting c l a i m of permanent pain, swelling and tenderness. Thus hcr pharmacy rccords may wcll provc relevant here on the issues of medical expcnscs and p i n and suffcring. In addition such records may rcvcal that information about rncdications bcing taken by plaintiff are needed to rebut plaintiff's damages claims. Cf Moore v. Superior Ice Rink, h, AD2d 305 (2d Dept, 1998) 251 Within the samc 20 day period plaintiff is directed to provide authorizations to defense counsel to enable them to obtain the records of any speech, occupational or physical therapist seen by plaintif1 l'ollowing the surgery performed by Dr. Hsu which therapy was allegedly necessitated by the treatment by del'endants. At this juncture plaintiff necd not provide authorizalions for Dr. Nicholas Gaulticrci, who plaintiff asscrts trcated hcr stomach, Dr. Charlcs Ruvolo, who plaintiff asserts treatcd hcr for gastrncntcrological complaints, Dr. Vccrcndra Durgani, plain tiff" s gynecologist, Dr. Daniclle Peterson who defensc counscl mcrcly desciibcs as a radiologist who perfor-med a chest x-ray, Dr. Alcjandro Zurctti, described merely as a pathologist, Dr. Kumud Gugliada, described merely as a radiologist, Dr. Frcderick Smith described merely as an intcrnist and Dr. Ancs York, St. Paul Radiology, Transcarc King, Ccntral Pathology, Greenwich Medical Center, United Hospital and Alling Hcalth which are not at all described by defendants, since defendants have not establishcd that these healthcare providers have any relevant evidence to offer. If defendants at plaintiff's deposition ascertain that these providers may have relevant cvidcnce as they can then scck a n authorizations, or if plaintiff does not have a full ~-ecollection to what -5- [* 7] thcse providers did defcndants can seek an in camera review of thesc provider's records to asccrtaiii whether they arc relevant. This leaves the issue ol dekndants' rcqucst for authorizations for any psychological, psychiatric or oiher mental healthcar-cpr-ovidcd to the patient. Plaintiff's counsel opposes the r-cqucst for such authorizalion asscrting that plaintiff's loss of enjoymcnt of lifc claim ...that as a rcsult of the alleged malpractice plaintiff is deprived of her physical ability to speak properly and eat solid foods, docs not place into issue hcr mcntal health. Assuming argucndo that plaintiff is willing to stipulatc that her sufrering and loss of enjoyment of life claims are limited to physical injurics and not emotional upset as a rcsult of hcr physical injurics, she does not have to provide authorizations for menial healthcare providcrs, See L.S. v. Harouchc, 260 AD2d 250 (1" Dept, 1999) Accordingly unless within 20 days of service of a copy of this order with notice of entry plaintiff in writing withdraws any claims for cmotional or psychological injury, she is directed within 30 days of service of a copy of this ordcr with notice of cnt.ry to provide defendants with authorizations [or mental healthcarc providcrs Irom six ycars before Dr. Hsu treated plaintiff until the present. constitutes thc order Dated: -6-
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