Jean-Louis v Thakur

[*1] Jean-Louis v Thakur 2008 NY Slip Op 52476(U) [21 Misc 3d 1141(A)] Decided on November 24, 2008 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2008
Supreme Court, Kings County

Ednie Jean-Louis, Plaintiff,

against

Mrudangi S. Thakur, and JAMAICA HOSPITAL MEDICAL CENTER, Defendants.



38932/07



Plaintiff Attorney:Turkewitz Law Firm

Gregory E. Danenberg

Defendant AttorneyMartin, Clearwater & Bell, LLP

Amabile & Erman

Yvonne Lewis, J.

Defendant, Mrudangi S. Thakur, M.D., has moved this court for an order, pursuant to

CPLR §3042, to compel the plaintiff/patient to amend and/or supplement her verified bill of particulars (paragraphs 2, 9, 11, 12, 13, 14, respectively) with, 1. the specifics that she claims as the basis of her negligence and malpractice; i.e., to set forth "what specifically was allegedly done incorrectly or improperly" with the breast reduction surgery that she performed; 2. the patient's occupation and name and address of her employer instead of merely the amount of future lost earnings since the patient has put her medical condition into controversy and asserted a claim of lost earnings; 3. the plaintiff's address and date of birth as background information; 4. the specifics that establish in what respects the defendant failed to inform her of the risks of the procedure to be performed; 5. the plaintiff's social security number as the same is needed to obtain medical records and HIPPA compliant authorizations; and, 6. collateral source information to ascertain the extent of special damages and reimbursement for medical expenses. In addition, Dr. Thakur moves to strike from the plaintiff's verified bill of particulars any and all language "regarding supervision and privileges" as the same should apply solely to the co-defendant, Jamaica Hospital Medical Center (hereinafter, JHMC).

JHMC, in turn, has cross-moved, pursuant to CPLR §3024(b), for an order striking what it deems to be "inflammatory, scandalous, and prejudicial" language contained in the plaintiff's verified bill of particulars and compelling an amendment and/or supplement of the same. More specifically, JHMC objects to the plaintiff's allegation of "recklessness" in performing the subject bilateral breast reduction inasmuch as said term "infers willful and wanton conduct on behalf of a defendant and is inappropriate in a medical malpractice action" (citing, inter alia, Van Caloen v. Poglinco, 625 NYS2d 245, 214 AD2d 555 [2d Dept., 1995]; Frenya v. Champlain Valley Physician's Hosp. Medical Center, 113 AD2d 1000, 521 NYS2d 150), and that the plaintiff is seeking punitive damages. As to the latter point, JHMC notes that the Appellate Division, [*2]Second Department, has ruled in the matter of Gravitt v. Newman, 495 NYS2d 439, 114 AD2D 1000 (2d Dept., 1985), that punitive damages are warranted in a medical malpractice ". . .only where the actions of the alleged tortfeasor constitutes gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or activated by evil or reprehensible motives," which the plaintiff has not alleged in the matter sub judice. JHMC also makes the same arguments as Dr. Thakur vis-a-vis the plaintiff's refusal to provide the name and address of her employer as required by CPLR 3043 ( a)(9) in relation to her claims for lost earnings, the plaintiff's social security number, address, and date of birth, and request for clarification as to the exact particularized conduct attributable to each defendant. In addition, JHMC submits that it is entitled to know whether or not the plaintiff 1. has been treated by other medical providers and facilities during the period that she claims to have been "confined to bed/home for two years other than medical appointment' [objected to in paragraphs 8, 9, and 10 of plaintiff's bill of particulars]; " and 2. is claiming future medical expenses [objected to in paragraph 12 of plaintiff's bill of particulars].

The plaintiff, Ednie Jean-Louis, has cross-moved for an order, pursuant to CPLR §3126, to strike the defendants' answers for their willful failures to have complied with the May 5, 2008 preliminary conference order (pc order ) of this court with regards to depositions and production/inspection of documents; to wit, certified and "Bates stamped" medical records, diagnostic films and reports thereof, applicable insurance policies, Dr. Thakur's statements, JHMC incident report, documents as to Dr. Thakur's educational background and qualifications, and employment relationship with JHMC, JHMC's protocols/steps to be followed by physicians performing breast reduction surgeries, disciplinary actions against Dr. Thakur, JHMC website printouts regarding Dr. Thakur, operative log books for Dr. Thakur and physician assistant, Mr. Lewis for the operation date of August 1, 2005; or for orders 1. precluding Dr. Thakur and JHMC from testifying at trial as a result of their respective refusals to submit to examinations before trial (EBT) in accordance with the mentioned order, and barring Dr. Thakur's EBT of the plaintiff; or for a directive compelling compliance with said pc order. Ms. Jean-Louis additionally argues that the burden is on the defendants to demonstrate that her assertion of "recklessness" has no bearing on the subject matter of the litigation and that substantial prejudice will result in the absence of striking the objected to allegation (citing, in addition to several 3rd and 4th Appellate Division cases, the matter of NYCH & H Corp. v. St. Barnabas Cmty Health Plan, 22 AD3d 391, 802 NYS2d 363 [1st Dept., 2005]). Furthermore, the plaintiff contends that counsel's affirmation is insufficient and without the requisite personal knowledge to sustain an order to strike (citing Oquendo v. Rosgro Realty Corp., 117 AD2d 528, 498 NYS2d 142 [1st Dept., 1986], and Akane Corp. v. Fujimichi, 184 AD2d 300,587 NYS2d 135 [1st Dept., 1992]); and, asserts, pursuant to CPLR §3043( a)(9), that JHMC is untimely in asserting this challenge inasmuch as more than twenty days have elapsed since her pleading was interposed. Finally, Ms. Jean-Louis contends that she has amply responded to the defendants' bill of particulars with sufficient particularity as to each but that since her allegations against JHMC arise derivatively of Dr. Thakur's actions as the former's agent, her claims against the two are necessarily similar and interconnected.

Dr. Thakur, in response to the foregoing, cross-moved for a protective order, pursuant to CPLR §3101, as to several items of discovery sought by the plaintiff, as well as in opposition to [*3]the plaintiff's motion to dismiss (pursuant to CPLR §3126), and in further support of her request to strike the aforementioned language in the bill of particulars and to compel amendment and/or supplementation of the plaintiff's bill of particulars. Dr. Thakur maintains that she has fully complied with the plaintiff's discovery requests, except for items which are not in her possession such as JHMC's diagnostic films, insurance policies, protocols, web-site print outs, etc., or matters to which she has objected, or which are privileged, such as her employment application; that she requires a "proper and complete bill of particulars as to plaintiff's allegations of negligence and damages, as well as all relevant medical records" before she can proceed with EBTs; and, that her deposition cannot sequentially proceed until the plaintiff's has occurred. In addition, Dr. Thakur asserts that the plaintiff has not fully complied with her discovery requests; e.g, dates of plaintiff's pictures, and has failed to proffer any good faith basis for her accusation of recklessness, much less addressed how the subject breast reduction surgery was negligently performed. Finally, Dr. Thakur requests a protective order on the same grounds of privilege, irrelevancy, and confidentiality asserted by JHMC hereinbelow vis-a-vis any employment agreements, quality assurance committee reports, and the like pertaining to her.

JHMC, in its affirmation in opposition, asserts that its motion herein is timely since the May 5, 2008 pc order reserved to it the right for additional motion practice attributable to the insufficiency of plaintiff's bill of particulars, and thereupon restated its arguments as to why the plaintiff is not entitled to punitive damages. JHMC also maintains that it has in no way refused to comply with the said pc order; rather, it is the plaintiff that has filed to furnish authorizations as to her treatment (as opposed to billing and reimbursement records) at JHMC or for prior medical, therapeutic, and psychological treatments, IRS records for 2000 through the present, or to submit to deposition. JHMC notes that it has furnished certified medical records to the plaintiff; but, since provision of Bate stamps would require altering the certified copies, it offered plaintiff an opportunity to review the original chart and agreed to furnish another bate stamped certified copy.

In both its affirmation in opposition, as well as a subsequent cross-motion, JHMC requested a protective order pursuant to CPLR 3101 in response to the plaintiff's cross-motion to strike its answer for allegedly failing to comply with the May 5, 2008 preliminary conference order, preclude its testimony at trial, or require its compliance therewith, on the grounds that the information sought by the plaintiff, as more fully detailed below, is privileged, confidential, irrelevant, and clearly protected from disclosure. JHMC maintains that it has fully complied with discovery requests; to wit, medical records, diagnostic films, reports thereof, and insurance policies, that the preliminary conference order entitled it to file a motion in response to any insufficiency in plaintiff's bill of particulars, that the plaintiff has failed to furnish adequate and/or required medical authorizations, and that neither the plaintiff nor Dr. Thakur, the first named defendant, has yet to submit to depositions. With regards to incident reports and disciplinary records concerning Dr. Thakur, JHMC asserts that such materials are "privileged and protected from discovery, pursuant to Education Law 6527(3) and Public Health law 230(11)( a) and 2805-(l) and (m). In addition, JHMC maintains that Dr. Thakur's curriculun vitae, educational background are matters to be disclosed by his own attorney, and that the plaintiff's request for JHMC web site postings (a public record), employment agreements, flyers, brochures, [*4]or other material referencing Dr. Thakur are baseless and overly broad in scope in the absence of a showing that the plaintiff relied thereon for the subject surgery, as are plaintiff's demands for "protocols and/or steps to be followed by the physicians at Jamaica Hospital in performing breast surgery procedures and/or plastic surgery procedures during the period from January 1, 2003 through December 31, 2005" in light of the fact that the subject surgery was limited to breast reduction and performed on August 1, 2005.

The plaintiff, in its affirmation in opposition, repeats the arguments of its cross-motion, above set forth, and maintains that 1. both JHMC and Dr.thakur were not in strict compliance with the service requirements of CPLR §2215 which calls for at least three days prior service of a motion noticed to be heard which has caused undue delay herein; 2. the defendants' failures to comply with the court's pc order is without basis since neither moved to vacate the same (citing, Velasquez v, CFT, Inc., 267 AD2d 229, 699 NYS2d 470 [2d Dept., 1999], and Koczen v. VMR Corp., 300 AD2d 285, 750 NYS2d 877 [2d Dept., 200]); 3. neither defendant has submitted opposition by someone with personal knowledge to establish the absence of documents, a credible claim of privilege, that a review procedure exists at JHMC, or that the subject documents were prepared in accordance with the relevant [privilege] statutes (citing, Kivlehan v. Waltner, 36 AD3d 597, 827 NYS2d 290 [2d Dept., 2007]). In this latter regard, the plaintiff contends that ". . .this court should conduct an in camera review of the documents for which the hospital asserts a privilege under Education Law §6527(3) and Public Health Law §2805-1 and the defendants should produce a privilege log. . .(citing, Park Assocs. v. NY State AG, 99 NY2d 434, 757 NYS2d 507 [2003], and Marte v. Brooklyn Hosp. Ctr., 9 AD3d 41, 770 NYS2d 82 [2d Dept., 2004]).

In its reply papers, JHMC reasserted its previous points, and provided the affidavit of its vice-president of professional and regulatory affairs to establish its claim of privilege. In addition, JHMC indicated that a bates stamped copy of the certified JHMC chart has been furnished to the plaintiff.

In her reply papers, Dr. Thakur asserts that cross-motions were made in lieu of oral argument due to the court's indication that the parties' various requests would be considered on submission, and that any privilege log would be kept and obtainable solely from co-defendant JHMC, whose vice-president of professional and regulatory affairs' affidavit underscores the existence of said privilege.

It is academic that "[t]o establish a cause of action for medical malpractice the plaintiff must show: (1) a breach, deviation or departure from accepted practice; and, (2) an injury to the patient that is proximately caused by the medical professional's deviation or departure from accepted practice. In an action against a physician, the existence of a physician-patient relationship creating a duty of care owed by the physician to the patient must also generally be established" (15 NY Prac, New York Law of Torts§ 13:3; Bloom v. NYC, 202 AD2d 465, 609 NYS2d 45 [2d Dept., 1994); McKinney v. Bellevue Hosp., 183 AD2d 563, 584 NYS2d 538 [1st Dept., 1992]). In addition, "[i]n a medical malpractice case, punitive damages will only be awarded if the wrongful actions of the defendant go beyond the negligence required for a finding of malpractice. The plaintiff must show that the defendant's actions were grossly negligent or wanton (see 16 NY Prac., NY law of Torts §21:114). Case law has established that for punitive damages to be upheld the defendant's conduct must be wantonly dishonest, grossly indifferent to [*5]patient care, or malicious and/or reckless (e.g., Brown v. LaFontaine-Rish Med Assocs., 33 AD3d 470, 822 NYS2d 527 [1st Dept., 2006]), clinic representing affiliation with world-renowned surgeons did not verify physicians' credentials, billed insurance companies for unperformed or cosmetic procedures, allowed anesthesiologist to work independently despite restrictions on license requiring supervision, surgeon never met patient, did not obtain consent, and was allowed to substitute for another doctor after the patient had been anaesthetized; Sultan v. Kings Highway Hosp. Ctr, Inc., 167 AD2d 534, 562 NYS2d 204 [2d Dept., 1990], abortions performed by clinic in violation of various city and state regulations; Graham v. Columbia-Presbyterian Med Ctr., 185 AD2d 753, 588 NYS2d 2 [1st Dept., 1992], abandonment of unstable patient), or in instances of disclosure of confidential information (e.g., Randi A.J. v. LI Surgi-Center, 46 AD3d 74, 842 NYS2 558 [2d Dept., 2007], disclosure of abortion to deeply religious parents). The case law suggests that it may well be an issue of fact for the fact finder to determine whether a defendant has engaged in any acts which should subject that defendant to punitive damages. In the matter sub judice, inasmuch as EBTs are outstanding and it is presently unclear whether or not full disclosure of all credentials, operating logs, surgical notes, doctor statements, advertisements, etc. have been made, it is premature to determine the authenticity of plaintiff's assertion of reckless conduct. Accordingly, JHMC's cross-motion, pursuant to CPLR §3024(b), for an order striking plaintiff's claim of recklessness is denied without prejudice, with leave to renew once discovery has been completed.

Public Health Law §2805-I is unequivocal. Documents that are prepared in connection with quality assurance review and/or malpractice prevention programs of a hospital and/or as part of the hospital's incident reporting requirements to the Dept. of Health are exempt from disclosure in medical malpractice actions (Klinger v. Mashioff, 50 AD3d 746, 855 NYS2d 628 [2d Dept., 2008]; LaPierre v. Jewish Bd. of Family & Children Services, Inc., 47 AD3d 896, 850 NYS2d 595 [2d Dept., 2008]). It is to be noted, however, that the entity seeking to invoke the privilege has the burden of demonstrating that the documents were prepared in accordance with the relevant statutes of the Education and Public Health Laws (Marte v. Brooklyn Hosp. Center, 9 AD23d 41, 779 NYS2d 82 [2d Dept., 2004]). In this regard the court notes that JHMC's

vice-president of professional and regulatory affairs' affidavit needs to be amended to specify each document that JHMC claims to be entitled to such protection and the pertinent law, and directs that said privilege log shall be delivered to the plaintiff within thirty (30) days of notice of entry of this order; otherwise, JHMC shall be precluded from claiming said privilege as to the unspecified document(s).

Education Law §6527 is abundantly clear that "neither the proceedings nor the records relating to performance of a medical quality assurance review function or participation in a medical. . . malpractice prevention program nor any report required by the department of health, pursuant to section twenty-eight hundred five-l of the public health law. . .shall be subject to disclosure under article thirty-one of the civil practice law and rules escept as hereinafter provided or provided by any other provision of law. . ." More particularly, said section provides that "(n)o person in attendance at a meeting when a medical or a quality assurance review or a medical. . . malpractice prevention program or an incident reporting function described therein was performed, including the investigation of an incident reported pursuant to section 29.29 of [*6]the Mental Hygiene law, shall be required to testify as to what transpired thereat. [However,] [t]he prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting." Put another way, the Appellate Division, Second Department, in Bergen v. Long Beach Medical Center, et. al., 277 AD2d 374, 717 NYS2d 191, has ruled that "Education Law §6527(3), is designed to encourage peer review of physicians by guaranteeing confidentiality to those persons performing the review function (see, Swatzenberg v. Trivedi, 189 AD2d 151, 594 NYS2d 927). The statute was not intended, however, to extend protection to persons whose conduct is subject to review (see, Logue v. Velez, 92 NY2d 13, 677 NYS2d 6; Public Health Law §2805-m). Thus, to the extent that there are statements made by any party to the action which resulted from the quality control review process. . .they are not immune from disclosure, and the hospital must disclose any such statements to the plaintiff." Accordingly, Dr. Thakur and JHMC are directed to disclose any and all statements made by the former with regards to the subject surgery in their respective possession within thirty (30) days of notice of entry of this order. Failure to comply shall result in the striking of the non-complying party's answer.

A review of the parties' submissions, inclusive of exhibits, reveals that the plaintiff's date of birth was to have been disclosed via letter, social security number was contained in the tax form releases, and that a bates stamped JHMC medical chart was delivered to the plaintiff, and hence are no longer in dispute. JHMC and Dr. Thakur shall furnish all documents as to Dr. Thakur's educational background and qualifications, and employment relationship with JHMC, diagnostic films, reports thereof, applicable insurance policies, JHMC incident report and operative log books for Dr. Thakur and physician assistant, Mr. Lewis for the operation date of August 1, 2005 in their possession, or an affidavit that such item(s) are not in their respective possession, within thirty (30) days of notice of entry of this order; otherwise, the offending party shall be precluded from offering evidence at trial. Although JHMC claims not to be in possession of brochures, flyers, and web-site materials pertaining to Dr.Thakur and breast reduction surgeries, it is to furnish an explanatory affidavit as to its procedures for the preparation of such items, inclusive of input materials, web site creator, compiler(s), administrator(s), and printer(s) utilized, whether in-house or by contractors, specifying their names and addresses. The failure to comply with this directive within thirty (30) days of notice of entry of this order shall result in JHMC being precluded from offering evidence at trial. In turn, the plaintiff is to furnish the name and address of her employer and her occupation, collateral source information, and the dates of her pictures within thirty (30) days of notice of entry of this order or she shall be precluded from offering evidence at trial. Insofar as the parties' EBTs are concerned, this court hereby orders that they are to be conducted sequentially as listed in the caption, commencing with the plaintiff, and on a daily basis until concluded, within sixty (60) days of notice of entry of this order. Any failure to abide by said directive shall result in the preclusion of the offending party from offering any evidence at the trial of this matter. Finally, this court, having allowed all the parties ample time to respond and/or make submissions in support or opposition of the various motions and cross-motions herein interposed sees no time limitation violation that has resulted in prejudice to any side, much less warranted dismissal as a result thereof. [*7]

Wherefore, on the bases of all of the foregoing, the Defendant, Mrudangi S. Thakur, M.D.'s motion, pursuant to CPLR §3042, to compel the plaintiff/patient to amend and/or supplement her verified bill of particulars is granted to the extent of furnishing the particulars hereinabove mentioned. That portion of the motion requesting that the plaintiff's bill of particulars be amended to add "the specifics that she claims as the basis of her negligence and malpractice; i.e., to set forth what specifically was allegedly done incorrectly or improperly' with the breast reduction surgery that she performed" and the specifics that establish in what respects the defendant failed to inform her of the risks of the procedure to be performed is denied. JHMC's cross-motion, pursuant to CPLR §3024(b), for an order striking what it deems to be "inflammatory, scandalous, and prejudicial" language contained in the plaintiff's verified bill of particulars is denied without prejudice, subject to renewal upon completion of discovery. The request for an amendment and/or supplement of the plaintiff's bill of particulars is decided as set forth above. The plaintiff, Ednie Jean-Louis' cross-motion for an order, pursuant to CPLR §3126, to strike the defendants' answers for their willful failures to have complied with the May 5, 2008 pc order of this court with regards to depositions and production/inspection of documents, or for orders of preclusion is denied to the extent that the defendants must produce the documents above specified or be precluded as indicated. In addition, the parties are directed to comply with the EBT schedule herein established or be penalized as indicated. Dr. Thakur and JHMC's cross-motions for a protective order, pursuant to CPLR §3101, is denied to the extent that a privilege log shall be delivered to the plaintiff within thirty (30) days of notice of entry of this order; otherwise, JHMC shall be precluded from claiming said privilege as to the unspecified document(s). This constitutes the decision and order of this Court.

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JSC