Kaisman v Carter

[*1] Kaisman v Carter 2006 NY Slip Op 52020(U) [13 Misc 3d 1227(A)] Decided on September 6, 2006 Supreme Court, New York County Goodman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 6, 2006
Supreme Court, New York County

Arden Kaisman, Plaintiff,

against

Maurice Carter, M.D. and Maurice Carter, M.D., P.C., Defendants.



115999/05

Emily Jane Goodman, J.

This is a defamation action brought by plaintiff Dr. Arden Kaisman (Dr. Kaisman) for statements made by defendants Maurice Carter, M.D. and Maurice Carter, M.D., P.C. (together, Dr. Carter) about Dr. Kaisman. The statements in question were all made in an independent medical examination report (IME report) prepared by Dr. Carter on behalf of an unnamed defendant who was sued by a plaintiff identified as Ms. L.C. for personal injuries, sustained in a trip and fall. Defendants move, pursuant to CPLR 3211 (a) (7), for summary judgment dismissing the complaint on the basis that the statements are afforded the privilege of absolute immunity, and are otherwise protected as opinion. Plaintiff opposes the motion on the basis that the statements are, at most, subject to a qualified privilege, because they were only tangentially related to a legal proceedings, and, are not even entitled to a qualified privilege, because the statements were made with malice.

BACKGROUND

In the spring of 2005, at the request of the law firm preparing to defend a personal injury action brought by Ms. L.C., Dr. Carter performed an independent medical examination on Ms. L.C. On June 2, 2005, Dr. Carter issued a nine-page report detailing his findings. In this report, Dr. Carter addressed the medical care rendered to Ms. L.C. by several doctors, including Plaintiff. Dr. Carter concluded that Plaintiff, an anesthesiologist, performed an unnecessary lumbar discectomy on Ms. L.C., a procedure usually performed by a surgeon. At issue in this case are the following statements made by Dr. Carter in his report:

I will, I think, stop here and insert an editorial comment. There is a certain lack of morality and good clinical judgment in an anesthesiologist performing such a procedure. I say the above for the following reason. Let us suppose that the patient had a disc space infection as the result of a misadventure in the procedure or a dural leak, or something worse. While this did not happen in this case, it is far from being impossible. Under those circumstances, an anesthesiologist will, in general, not have operating privileges and not be in a position to treat the complication he has created. In short, it is inappropriate and, in my view, immoral for the anesthesiologist to perform surgical procedures whose complications he cannot himself treat. I must say that given the total lack of findings on physical examination or MRI, there was no good [*2]reason to submit this woman to an unneeded procedure

(Dr. Carter's Report, Exhibit B of Defendant's Affirmation, at 5).

There just simply was nothing which was seen on imaging which could press on a nerve root and produce radiculopathy. Dr. Kaisman's allegation of numbness, or decreased sensation of two dermatomes falls quite flat. This woman is, of course, another one of the many patients which have passed through Dr. Kaisman's hands who have also passed briefly through my office for independent examinations. None of these individuals has acknowledged having been improved by Dr. Kaisman and in this, I must say, [Ms. L.C.] is not alone. However, [Ms. L.C.] has been submitted to a procedure by Dr. Kaisman that others have not been submitted to, at least in my experience. That, of course, is a percutaneous discectomy

(id. at 8).

DISCUSSION

The standards in determining a CPLR 3211 (a) (7) motion for dismissal for failure to state a cause of action are well known (see Ackerman v 305 East 40th Owners Corp., 189 AD2d 665, 666 [1st Dept 1993]; 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506 [1979]). "Such a motion assumes the truth of the complaint's material allegations and whatever can be reasonably inferred therefrom" (Ackerman v 305 East 40th Owners Corp., 189 AD2d at 666).

The court finds that the statements made by Dr. Carter in the IME report are protected by an absolute privilege.[FN1] "Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding" (Sinrod v Stone, 20 AD3d 560, 561-562 [2d Dept 2005][allegedly defamatory statements contained in documents submitted in judicial proceedings, to the effect that plaintiff was "mentally, physically and emotionally unfit to practice law" and, that plaintiff had engaged in unprofessional and criminal conduct, were material and relevant to the proceedings, and thus, absolutely privileged]). Whether a statement made in connection with a judicial proceeding is "pertinent" for the purpose of absolute immunity is broadly construed in order to protect counsel, witnesses and parties to a judicial action, and, encompass not only statements that are pertinent, [*3]but also those statements which may become pertinent (see Mosesson v Jacob D. Fuchsberg Law Firm, 257 AD2d 381, 382 [1st Dept 1999]). The purpose of the absolute privilege with respect to witnesses is to encourage cooperation, particularly with respect to expert witnesses, so that witnesses can discharge their public duty freely "with knowledge that they will be insulated from the harassment and financial hazards of subsequent litigation" (see Tolisano v Texon, 144 AD2d 267, 271 [1st Dept 1988], revd on other grds, 75 NY2d 732 [1989]).

Contrary to Plaintiff's contention, the absolute privilege is not limited only to statements made in open court and subject to cross-examination.[FN2] Although the absolute privilege applies to in court statements, it has been held to apply to out-of-court statements made in a letter to the court by a prospective witness (see Arts4All Ltd. v Hancock, 5 AD3d 106 [1st Dept 2004]), to statements made in a letter to the court by a party (see Impallomeni v Meiselman, Farber, Packman & Eberz, P.C., 272 AD2d 579 [2d Dept 2000]), to statements contained in pleadings submitted in the litigation (see Lewittes v Blume, 18 AD3d 261 [1st Dept 2005]), to statements made in an informational subpoena (see Mancini v Marine Midland Bank, 185 AD2d 682 [4th Dept 1992]), and to statements made in preliminary and/or investigatory stages of quasi-judicial proceedings (see Hertzfeld & Stern, Inc., 175 AD2d 689 [1st Dept 1991]).

Aequitron Medical, Inc. v Dyro (999 F Supp 294 [EDNY 1998]) is particularly instructive. In that case, the court held that experts' statements in a video tape, made after the commencement of an action, were absolutely privileged, and, it was of no import that the statements were made during trial preparation, rather than in open court, because the experts were retained to provide their opinion concerning whether a product was defective. Similarly, Dr. Carter was retained as an expert to evaluate Ms. L.C.'s injuries, treatment, and progress, and his statements are material and pertinent to the issues to be resolved in the underlying personal injury action (see Biegeleisen v Jacobson, 198 AD2d 57 [1st Dept 1993] [defamation action dismissed because statements made by expert witness in a medical malpractice action were directly relevant to his opinion concerning whether use of a certain procedure was as an accepted medical practice]). Plaintiff's only explanation as to why the statements were not pertinent is based on the assumption that the report would not be admitted at trial. However, Plaintiff does not dispute that Dr. Carter was retained as an expert for the defense, and as such, his statements are pertinent to the defense's evaluation of the merits of the action, whether for settlement purposes, trial strategy, or otherwise. Moreover, Dr. Carter could have been called as a witness for the defense. Given that pertinence is defined to include statements which may become relevant, the statements are pertinent.[FN3] [*4]

In light of the court's determination that the statements are protected by the absolute privilege, the court does not reach the issue of whether the complaint should be dismissed on the basis that Dr. Carter's statements are all non-actionable opinion.

It is hereby

ORDERED that defendants Maurice C. Carter, M.D. and Maurice C. Carter, M.D., P.C.'s motion to dismiss plaintiff Arden Kaisman's complaint, pursuant to CPLR 3211 (a) (7), is granted, with costs and disbursements as taxed by the Clerk of Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This Constitutes the Decision and Order of the Court.

DATED: September 6, 2006

ENTER:

______________________

J.S.C. Footnotes

Footnote 1:Plaintiff contends that, at most, Dr. Carter's statements are entitled to qualified privilege. Good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, are protected by qualified privilege if made to a party having a corresponding interest (Priovolos v St. Barnabas Hosp., 1 AD3d 126, 127 [1st Dept 2003][statements regarding performance of surgical attending physicians contained in termination memorandum protected by qualified privilege]). The protections of qualified privilege can be lost if shown that the statements were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity" (Loughry v Lincoln First Bank, N.A., 67 NY2d 369, 375 [1986]; see also Kroemer v Tantillo, 270 AD2d 810, 811 [4th Dept 2000]). Contrary to Defendants' contention, the complaint need not allege evidentiary facts supporting a finding of malice to withstand a motion to dismiss (see Arts4All Ltd. v Hancock, 5 AD3d 106 [1st Dept 2004]).

Footnote 2:Ironically, if the privilege only applied to in court testimony, Defendants may have claimed that Plaintiff himself made defamatory statements. In his opposition papers, Plaintiff alleges that Dr. Carter "makes his living through his P.C. by examining persons who have been injured, for insurance companies and the lawyers the insurance companies hire" and does not conduct "independent" medical examinations, but "is hired by insurance companies to find that injured persons are not injured" (emphasis added).

Footnote 3:Toker v Pollak (44 NY2d 211 [1978]), cited by Plaintiff, is inapposite. There, the Court found that only a qualified privilege applied because a complaint was made to the District Attorney, prior to the commencement of any judicial proceeding. In this case, Dr. Carter's statements were made in the context of a judicial proceeding, which had already been commenced.