Cardamone v Ricotta

[*1] Cardamone v Ricotta 2006 NY Slip Op 52651(U) [21 Misc 3d 1117(A)] Decided on August 28, 2006 Supreme Court, Nassau County Parga, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2006
Supreme Court, Nassau County

Diana Cardamone, Administratrix of the Estate of ROSE SLAUGHTER, Deceased, Plaintiff,

against

John J. Ricotta, MD, ENRIQUE CRIADO, MD, ANTONIO GASPARIS, MD, JOSEPH AMETRANO, MD, BENJAMIN POCOCK, MD, HIROSHI SOGAWA, MD, RICHIMANI S. ADSUMELLI, MD, DOMICIANO SANTOS, MD, BRIAN GRAVIER, RN, SUSANNA HONG, MD, "JOHN" DANA, MD, "T.C. HEALY", "SY HYPRES" AND "C. VERGAY", the names in quotes being fictitious, the parties intended being those individuals described in or who made entries in the hospital record of ROSE SLAUGHTER, deceased, Defendants.



DIANA CARDAMONE, Administratrix of the Estate of ROSE SLAUGHTER, deceased Plaintiff,

against

JAMES VOSSWINKEL, M.D. and BO LIU, M.D., Defendants.



6577/04

Anthony L. Parga, J.

It is ordered that the cross-motion by plaintiff in Actions No. 1 and 2 (Sequence No. 03 in Action No. 1) for an order consolidating the actions for a joint trial; the motions by defendants Vosswinkel and Liu in Action No. 2 for an order dismissing this action against them pursuant to CPLR 3211 (a)(5) (Sequence Nos. 01 and 02 in Action No. 2); the motion by plaintiff for an order compelling defendants Sueng Hee Hong, M.D. and John J. Ricotta, M.D. to appear for another examination before trial (Sequence No. 01 in Action No. 1); the cross-motion (amended) by defendant Emily Pozgay, s/h/a "C. Vergay" for an order compelling plaintiff to appear for another deposition (Sequence No. 02 in Action No. 1); the motion by the defendants Vosswinkel and Liu in Action No. 2 (Sequence No. 04) for an order pursuant to CPLR 510, transferring the venue of this action from Nassau County to Suffolk County; and plaintiff's cross-motion for an order retaining venue in Nassau County for Action No. 1 (Sequence No. 03), are consolidated for disposition and decided as follows:

Plaintiff has commenced two medical malpractice actions for wrongful death and personal injuries arising out of identical facts (Action No. 1, Index No. 6577/04 and Action No. 2, Index No. 4808/06). There are also two tort actions against the State of New York currently pending in the Court of Claims arising from decedent's treatment at University Hospital at Stony Brook. The actions are a result of alleged medical malpractice committed by all the named defendants in their care and diagnosis of decedent, Rose Slaughter from September 19, 2002 to September 20, 2002.

The motions by defendants Vosswinkel and Liu in Action No. 2 for an order dismissing this action against them pursuant to CPLR 3211 (a)(5) are granted.

The Complaint alleges medical malpractice to have been committed on September 19 and 20, 2002. The statute of limitations for these actions is two and one-half years from the alleged malpractice. It is undisputed that the commencement of this action was on March 21, 2006.

Plaintiff opposes this application in that the defendants did not produce the doctors' schedules until late 2005 after the statute of limitations expired. [*2]Specifically, the call schedules for the month of September 2002. were first produced in November, 2005 containing the names of Liu and Dr. Vasselwinkel on the Attending on call schedule.

The plaintiff describes the "attending anesthesiologist as the head of the care team which includes the residents". Additionally, plaintiff notes that there is reference to Dr. Liu in the chart as part of the anesthesia team during plaintiff's fatal surgery. Likewise, plaintiff notes that Dr. Vosswinkel, the attending surgeon, is mentioned as "in attendance" after the plaintiff went into cardiac arrest. There is, however, no sworn allegation by plaintiff that the patient's chart with this information was not available to plaintiff before the statute of limitations expired.

The plaintiff's detailed rendition of the decedent's post-operative condition and treatments clearly reflects several first, second and third year residents and Fellows caring for the decedent. Plaintiff's excerpts of the AICU Protocols Manual Code cite the medical management of AICU patients to be the joint responsibility and ultimately with the attending surgeon and anesthesiologist. Accordingly, there has been no contradiction of the hospital's protocol that the attending physician was a crucial person in the care of plaintiff's decedent. The motion is void of any allegation or affirmative statement that plaintiff could not timely find the identity of these two attending physicians from the decedent's charts and records.

Finally, the plaintiff's contention that Vosselwinkel and Liu are united in interest with the other defendants permitting the commencement of their 2005 action to be timely is misplaced. The two defendants and the claims against them do not satisfy the three-prong test established in Mondello v. New York Blood Center Greater NY, 80 NY2d 178 todetermine if they benefit from the relation-back doctrine (CPLR 302(b)). Specifically, the parties are not united in interest in that their treatments of plaintiff's decedent were distinctly different in their specialty and time of treatments (Monir v. Khandakar, 2006 NY Slip Op 4813 (2nd Dept. , 2006)).

The cross-motion by plaintiff in both actions (Sequence No. 03 in Action No. 1) pursuant to CPLR § 602 to join the above-entitled actions is denied as moot Action No. 2 having been dismissed herein.

The motion by plaintiff for an order compelling defendants Sueng Hee Hong, M.D. and John J. Ricotta, M.D. to appear for another examination before trial for the specific purpose of answering questions that were the subject of objections by their respective counsel (Sequence No. 01, in Action No. 1) is granted to the extent that each defendant shall appear to answer the question [*3]enumerated below. The depositions shall take place in the Nassau County Supreme Court on or before October 20, 2006.

Plaintiff alleges that during the deposition of Dr. Hong, her counsel repeatedly interrupted with qualifying warnings to his client before the answer was given. Dr. Hong was part of plaintiff's decedent's surgical team during the cardiac arrest event and subsequent surgery. Dr. Ricotta along with another doctor performed the initial surgery (renal angioplasty TBARA) and saw plaintiff once after the surgery while making his rounds. His questioning was also constantly interrupted by his counsel.

It is well established that there are five general categories wherein a witness need not answer deposition questions in addition to those objections enumerated in CPLR 3115. This case, however, is indicative of many contentious medical malpractice cases which display instances of counsel making gratuitous comments to their client after a questions is asked and in effect cautions the client (Mora v. Saint Vincent's Med. Center, 8 Misc 3d 868 ( Sup Ct., NY Cty., 2005); 22 NYCRR 221.1 (Court Rule eff 10/1/06)).

After careful consideration of the transcripts and legal arguments the Court finds that objections to deposition questions of Dr. Seung Hong referred to on page 8 to Page 16 of plaintiff's motion (Sequence No. 1 and Action No. 1) and questions to Dr. Ricotta as enumerated on Page 6 to Page 11 of plaintiff's motion addressing the Ricotta deposition (Sequence No. 01, in Action No. 1) should be answered in the subsequent deposition. The questions asked of both witnesses are material and necessary in an effort to resolve this cases (CPLR 3101). The questions should be addressed candidly by the witnesses to their best ability under oath without coaching from counsel (Auerbach v. Klein, 2006 NY Slip Op 4787 (2nd Dept., 2006)).

The Court finds that the conduct of Andrew Kaufman, counsel for Dr. Hong, and Bridget Dahle, counsel for Dr. Ricotta, during the course of their respective clients' depositions to be frivolous, unprofessional and a substantial impediment to the orderly execution of a necessary pre-trial disclosure procedure. However, the Court will not impose sanctions at this juncture pending the completion of the subsequent depositions ordered herein.

The cross-motion (amended) by defendant Emily Pozgay, s/h/a "C. Vergay" for an order to compel plaintiff to appear for another deposition (Sequence No. 02 in Action No. 1) limited to the two enumerated questions not answered on May 24, 2005 is granted as follows: the broad general question inquiring into plaintiff's filing of bankruptcy on transcript Page 141, Line 2 is to be answered but limited to plaintiff's listing this action on any list of assets in a bankruptcy filing. The branch of the motion seeking answers to the questions regarding the decedent being a party to any other law suit is denied.

The motion by the defendants Vosswinkel and Liu in Action No. 2 (Sequence No. 04 in Action No. 2) for an order pursuant to CPLR 510, transferring the venue of this action from Nassau County to Suffolk County, is denied as moot as the action has been dismissed. Plaintiff's unopposed cross-motion for an order retaining venue in Nassau County for Action No. 1 [*4](Sequence No. 03 in Action No. 1) is granted.

Dated: August 28, 2006.

_________________________

Anthony L. Parga, J. S. C.