Bernard v Cabrini Med. Ctr.

[*1] Bernard v Cabrini Med. Ctr. 2012 NY Slip Op 50949(U) Decided on May 7, 2012 Supreme Court, New York County Schlesinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 7, 2012
Supreme Court, New York County

Pierre Bernard, Plaintiff,

against

Cabrini Medical Center, RICK SAYEGH, M.D., DANIEL RAHMAN, M.D., SEBASTIANO CASSARO, M.D., AND "JOHN DOE," Defendants.



111756/2006



Attorney for Deft - Rick Sayegh, MD

Brian D. Meisner, Esq.

Voute, Lohrfink, Magro & McAndrew, LLP

170 Hamilton Avenue

White Plains, NY 10601-1789

914-946-1400

Attorney for Deft - Rick Sayegh, MD

Brian D. Meisner, Esq.

Voute, Lohrfink, Magro & McAndrew, LLP

100 Park Avenue, 20th fl.

New York, NY 10017-5546

212-867-9797

Attorney for Defendant - Sebastiano Cassaro, M.D.

Meredith Cook Lander, Esq.

Gordon & Silber, P.C.

355 Lexington Avenue, 7th fl.

New York, NY 10017

212-834-0600

Attorney for Plaintiff

Juan C. Restrepo-Rodriguez, Esq.

Pellegrini & Associates, LLC

336 West 37th Street, Ste. 905

New York, NY 10018

212-219-8312

Alice Schlesinger, J.

The issue before the Court in this medical malpractice action is whether a General Release to defendant Cabrini Medical Center, that extends to "employees" and "all tortfeasors liable or claimed to be liable jointly" with Cabrini, mandates the dismissal of this action against the moving defendants Dr. Rick Sayegh and Dr. Sebastiano Cassaro. The movants assert that they are entitled to the protection of the Release based on its broadly drafted, clear and unambiguous terms. Plaintiff asserts that the Release is limited by the terms of the Bankruptcy Order, pursuant to which it was drafted.

Background Facts

Plaintiff Pierre Bernard timely commenced this action is 2006 against defendant Cabrini Medical Center and three individually named physicians, claiming that the defendants failed to diagnose and properly treat a fracture of one of his fingers when he presented to Cabrini's Emergency Room in June 2004 with an injury caused by a trip and fall. Some time after discovery was completed and a Note of Issue had been filed, the action was automatically stayed due to Cabrini's bankruptcy filing. Plaintiff filed a Proof of Claim in the Bankruptcy Court, which was resolved in August of 2011. As a result, the bankruptcy stay was lifted and this case was restored to this Court's trial calendar.

By letter dated February 2, 2012, apparently written in response to demands by defense counsel, plaintiff's counsel forwarded to the defendants copies of the various documents that the plaintiff had signed in connection with the settlement in Bankruptcy Court.[FN1] The first document in time is entitled "Stipulation and Agreed Order Settling Medical Malpractice Action" and bears the caption of the Cabrini bankruptcy case. The Stipulation indicates a signature by counsel for the "Debtor" (defined in the Stipulation to be Cabrini) dated July 13, 2011 and a signature by counsel for the Claimant Mr. Bernard (the same counsel who is appearing here) dated July 19, 2011. The Stipulation further indicates that is was "So Ordered on August 10, 2011" by Chief United States Bankruptcy Judge Arthur J. Gonzalez.

The terms of the Stipulation and Order are very significant. The document begins by indicating that the express purpose of the Stipulation is to allow for the settlement of this medical malpractice action as between plaintiff and the Debtor Cabrini for the sum of $50,000. Among the recitals included in the introductory language of the Stipulation [*2]explaining the background, paragraph E confirms that the Stipulation is not intended to settle the entire malpractice action; specifically, paragraph E states that pursuant to the December 15, 2010 Claims Resolution Order, "the parties have settled the [medical malpractice] Action as against the Debtor and any Medical Professional. Claimant

desires to resume prosecution of the [medical malpractice] action against other defendants named in the Action in the State Court." (Emphasis added). In a footnote, the term "Medical Professional" is then defined to included "former employees of the Debtor and other professionals who provided medical services at the Debtor's hospital and who were covered under the Debtor's self-insurance medical malpractice plans (including, without limitation, doctors, interns, residents, nurses and others)."

As also relevant here, paragraph 3 carries out the intent stated in recital paragraph E to limit the reach of the settlement. Specifically, it directs that "Claimant shall discontinue the [medical malpractice] Action, with prejudice, only as against the Debtor and any Medical Professional named as a defendant in the Action. Claimant may proceed with the prosecution of the Action against other named defendants in the State Court." (Emphasis added).

In paragraph 5, "the Claimant releases and Discharges the Debtor, its present and former officers, directors, agents and employees, and all of the Debtor's Medical Professionals, from any and all claims and causes of action arising from or relating to the [medical malpractice] Action and the [Bankruptcy Court] Claim, whether or not those claims and causes of action were, could have been or could in the future be asserted against the Debtor, its officers, directors, agents, employees or Medical Professionals."

Paragraph 6 bars the claimant Mr. Bernard from enforcing any judgment or claim against the Debtor Cabrini, its employees or any Medical Professionals. However, that same paragraph then carves out an exception for the defendants in this action, stating that: "Notwithstanding the above, the Claimant does not waive any rights to proceed with the [medical malpractice] Action against the other defendants named in the Action." (Emphasis added).

The final paragraph, number 7, indicates that the Bankruptcy Court "shall retain jurisdiction to hear and determine all matters arising from or related to the implementation of this Stipulation and Agreed Order."

The next relevant document is a General Release executed by the plaintiff on August 31, 2011, a few weeks after Bankruptcy Judge Gonzalez approved the settlement there. In that document Mr. Bernard "releases and discharges CABRINI MEDICAL CENTER AND DANIEL RAHMAN, M.D. as RELEASEES" in consideration for the $50,000 received from Cabrini in the bankruptcy action. The document contains the broad language typical of a standard form general release, extending not only to the

Releasees but also to "employees" and "all tortfeasors liable or claimed to be liable jointly with the RELEASEES, and, whether presently known or unknown, all other potential or possible tortfeasors liable or claimed to be liable jointly with the RELEASEES."

Pointing to this broad language and General Obligations Law §15-108, defendant Dr. Sayegh has moved to dismiss, asserting that plaintiff's claims are barred by the General Release because Dr. Sayegh qualifies as a joint tortfeasor with Cabrini. [*3]Although Dr. Sayegh does not explain his precise role in the care and treatment of Mr. Bernard, plaintiff's Bill of Particulars does allege that Dr. Sayegh was involved when Mr. Bernard presented to Cabrini's Emergency Room, presumably as the chief internal medicine resident at Cabrini in June 2004 and/or as an attending Emergency Room physician. (See Aff in Support at ¶9).

Dr. Cassaro in his motion claims the benefit of the Release based on his status as both an employee of Cabrini and an alleged joint tortfeasor. According to his affidavit (Exh W), Dr. Cassaro was a salaried employee of Cabrini at the time in question and served as the Associate Director of the Department of Surgery at Cabrini. He asserts that all the care and treatment he provided to Mr. Bernard at the Cabrini outpatient clinic was in the course of his employment.

As alternative requests for relief should dismissal be denied, both defendants have also moved to preclude the plaintiff from offering certain evidence and expert testimony at trial based on a failure to provide all demanded authorizations and a proper 3101(d) expert disclosure statement. Plaintiff has cross-moved for a protective order relieving him of any obligation to provide additional disclosure. Following oral argument on March 21, 2012, this Court issued an order granting the defense motions to the extent of directing further disclosure, denying plaintiff's cross-motion for a protective order, and reserving decision on the two defense motions to dismiss based on the release. This decision determines that aspect of the motions. Although plaintiff suggests that the dispute should be referred to the Bankruptcy Court pursuant to the above-referenced paragraph 7 of the Stipulation and Agreed Order, which acknowledged the Bankruptcy Court's continuing jurisdiction, that paragraph did not give the Bankruptcy Court exclusive jurisdiction or otherwise strip this Court of authority to determine this issue raised in the malpractice action pending in Supreme Court.

Discussion

The relevant statute General Obligations Law §15-108(a), promulgated in 1972, provides in relevant part that:

When a release ... is given to one of two of more persons liable or claimed to be liable in tort for the same injury ..., it does not discharge any of the other tortfeasors from liability, for the injury ... unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release ... or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest.

As declared by the Court of Appeals in Wells v Shearson Lehman/American Express, inc., et al., 72 NY2d 11, 21 (1988): "The plain meaning of the statute is that a release must expressly indicate that it discharges parties in addition to those who contracted for the release." Discussing the legislative history, the Court further confirmed that the intent of the statute was to limit the reach of a release to the parties named and to thereby "abrogate the common-law rule that a release given one joint tort-feasor discharges all other joint tort-feasors ... Id. at 22 (citations omitted).

Here, the Release specifically identifies two parties: Cabrini and Dr. Daniel Rahman. However, the moving defendants here rely on the general language in the [*4]Release that discharges "employees" and "all tortfeasors liable or claimed to be liable jointly with the Releasees" Cabrini and Dr. Rahman. The moving defendants correctly assert that the GOL does not demand that every discharged party be specifically named or identified. Tamayo v Ford Motor Tilting Trust, 284 AD2d 529 (2nd Dep't 2001), citing Wells, 72 NY2d at 21-22. However, in light of the limiting language in GOL §15-108 and the legislative history discussed above, it is appropriate to turn to the Bankruptcy Order pursuant to which the Release was prepared to determine how that general language should be construed.

Wholly misplaced is moving counsel's reliance on Rodriguez v Saal, 51 AD3d 449 (1st Dep't 2008) for the proposition that consideration of "extrinsic evidence" — such as the Bankruptcy Order in this case — is barred when the terms of the release are clear and unambiguous. Rodriguez was a wrongful death action alleging that the defendant hospital had transplanted a cancerous kidney into the decedent. Plaintiff sued both the hospital and the organ donor network (Network). The release stated that the consideration paid by the hospital constituted "complete payment for all damages and injuries" by all tortfeasors jointly liable with the hospital. The extrinsic evidence that the Appellate Division precluded was a statement made by plaintiff's counsel in court when settling with the defendant hospital, without Network's counsel being present, that the release was not intended to include Network. This oral evidence is far different from the Bankruptcy Order issued in this case, which served as the predicate for the Release that was signed by the parties shortly after Judge Gonzalez approved the Order.

Equally distinguishable are the Second Department cases cited by defendants, such as Koufakis v Siglag, 85 AD3d 872 (2011) and Chaudhry v Garvale, 262 AD2d 518 (1999), for the proposition that the plaintiff's misunderstanding of the scope of the release is irrelevant. The plaintiff here is not claiming that he misunderstood the terms of the General Release. Quite the contrary, the express terms of the Bankruptcy Order — which in three separate paragraphs clearly and unambiguously preserves plaintiff's claims against the remaining defendants in this action — persuasively demonstrate a firm understanding by the plaintiff that he intended to settle with certain defendants only and proceed against others. Consistent with that understanding, the parties signed a General Release that specifically identified only Cabrini and Dr. Rahman as the settling defendants; no mention whatsoever was made of the moving defendants Dr. Sayegh and Dr. Cassaro. Cabrini literally signed on to that arrangement. If the moving defendants here have any complaints about the Bankruptcy Order and accompanying documentation, they should direct those complaints to Cabrini and not to the plaintiff.

Notwithstanding defendants' claims to the contrary, the General Release cannot be read in isolation but must instead be read in conjunction with the Bankruptcy Order. The various provisions in the Order quoted above, including the footnoted definition of "Medical Professional," reveal its import; that is, the Order was drafted to end Cabrini's liability to pay any additional sums to the plaintiff under the hospital's self-insurance medical malpractice plan. Thus, to the extent that the plaintiff obtains a verdict in excess of an individual defendant doctor's insurance coverage and Cabrini could be held vicariously liable for that doctor's negligence, the plaintiff cannot pursue Cabrini for the excess. Nor can the individual doctors seek any contribution or indemnification from Cabrini, despite their alleged status as former employees or joint tortfeasors. The [*5]moving defendants here were well aware that Cabrini had filed for bankruptcy. If they desired protection from claims against them similar to that secured by defendant Dr. Rahman, they should have more vigorously pursued such a course of action in the Bankruptcy Court.

Even though the moving defendants have failed to demonstrate that they are covered by the General Release, they may be entitled to a setoff against any damages award against them based on the Cabrini settlement. Therefore, defendants are entitled to amend their answers to assert an affirmative defense along those lines. However, they are not entitled to have the claims against them dismissed in their entirety at this time based on the language in the General Release for the reasons stated above. Accordingly, it is hereby

ORDERED that the motions by defendants Rick Sayegh, M.D. and Sebastiano Cassaro, M.D. are granted to the extent of allowing defendants to amend their answers to assert an affirmative defense based on release to the extent provided herein, with service to be completed by May 17, 2012, but the motions are denied insofar as they seek dismissal of the claims against them; and it is further

ORDERED that plaintiff's cross-motion for a protective order is denied; and it is further

ORDERED that all counsel shall appear in Room 222 for a pre-trial conference on May 23, 2012 at 11:00 a.m. prepared to select a firm trial date.

Dated: May 7, 2012

__________________________

J.S.C. Footnotes

Footnote 1: The packet of documents included documents related to plaintiff's separate negligence claim against the landowner of the property where he had fallen, but those documents are irrelevant here and will not be discussed.