Lewis v New York Univ. Med. Ctr.

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Lewis v New York Univ. Med. Ctr. 2011 NY Slip Op 32329(U) August 4, 2011 Supreme Court, New York County Docket Number: 117000/08 Judge: Joan B. Lobis 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. SCANNED ON 812912011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 6 I Index Number 11700012008 INDW NO. LEWIS, MARY R. vs. MOTION DA- MOTION IM. NO. NY UNIVERSITY MEDICAL CENTER SEQUENCE NUMBER : 003 - VACATE NOTE OF ISSUWREADINESS IWWW VI mowon/ uramr to Anrwsrlng Affldavltr Cross-Motion: ahow Cawm - Exhlbh MOTION CAI.. NO. thh motion tolfor - Affldavki - Exhlbb .,. 0 Yes No AUG 29 2011 Upon tho fomgolng papon, I IDordomd that t k rnodon t h NEW YORK COUNTY CLERK'S OFFICE THIS MOTION IS DECIDED -IN ACCORDANCE WITH THE ACCOMPANYING MEMORAPiDUM DECiS1OBI Dated: -s&- @ L +2 Check one: WNON-FINAL DISPOSITION 0 DO NOT POST REFERENCE FINAL DISPOSITION Check If appropriate: SUBMIT ORDER/ JUDQ. SETTLE ORDER/ JUDG. [* 2] Plaintiff, -against- NEW YORK UNIVERSITY MEDICAL CENTER d/b/a NYU HOSPITAL FOR JOINT DISEASES,and O W H,S H E W ,M.D., Index No. 1 I7000/08 FILED AUG 29 2011 Defendant Orrin H. Sherman, M.D., moves for m order, pursuant to 22 N.Y.C.R.R. 202.21(c), vacating plaintiffs note of issue due to plaintiffs failure to provida 0 certain authorizations and refbsal to undergo x-rays of her right lower femur and knee. Plaintiff opposes the motion. In this case sounding in medical malpractice and lack of informed consent, plaintiff allcges that D . Sherman negligently performed two surgeries on her right knee at New Y r r ok University Medical Center ( NYU)in M y and June 2006. The action was commend on a December 19,2008, and procecdud with discovery thereafter. On or about March 23,2009, D . r Sherman made a demand for IRS records, W-2records, and employment records. On January 18, 2010, Dr. Sherman demanded that plaintiff provide an authorization for Dr. Quraishi. On May 18, 2010, D . Sherman demanded authorizations for, r m, Drs. Taylor, Hurst, Pctil. b i b , Shridharani, Sweeney, Sacks, and Zatzkin. On February 17, 201 1, D . Sherman demanded r NYU w s panted summaryjudgment on July 22,201 1. %Decision and Order on Motion a Sequence Number 004. [* 3] authorizationsfor John Carlislc, Dr. Meryl Beckcr Joerg, D .Craig Foster, and D .John Troccoli. r r All of the demands set forth that if plaintiff failed to respond within twenty (20) days, D .Sherman r would make the appropriate motion to the court. Plaintiff did not respond to the demands for these authorizations, but no motions were made after the twcntyday period. The court held numcrousconferencts, but the authorizationsw r not specificallyreferenced or orderedto bc turned ee over in any court order (there are orders that plaintiff respond to outstanding discovmy demands w t no reference to any specific discovery). ih On March 1,201 1, Edward Crane,M.D., the request of D .Sherman,performed at r an independent medical examination ( IME ) of plaintiff. D . Cranu performed a physical r examinatlonand requested an x-ray ofplalntifblower right femur and right knee. Plaintiff r e k d to undergo the x-ray. According to Dr. Crane s IME report, the x-rays are necessary to evaluate her condition. Dr. Sherman never moved to compel the x-rays. On March 29,201 I, the parties appeared for a prc-trial conference and entered into a pretrial stipulation and order (the March 201 1 Order ). In addition to setting a trial date, the M r h 201 1 Order set forth that outstanding IMEs were to be completed by M y 3 1,201 1. The ac a March 201 1 Order docs not address the issue of the outstanding authorizations. Plaintiff filed her note of issue the next day on March 30,201 1, Now,D .Sherman seeks to vacate the note of issue on the grounds hat discovery r remains outstanding. Dr. Sherman asserts that plaintiff has failed to respond to the discovery -2- [* 4] demands from M r h 23,2009; January 18,2010; May IS, 2010; and February 17,2011. D . ac r Sherman further maintains that Dr. Crane n d s to perform x-rays on plaintiff in order to complete his evaluation of her. In opposition, plaintiff argucs that she has valid reasons for reflrsing x-rays in that D . r Sherman has received ample x-rays and that she has a fear of unnecessary and excessive radiation exposure. As to the authorizations, plaintiff asserts that Dr. Sherman waived his right to compel the authorizations because any outstanding discovery should have been addressed, at the latest, during the March 29,201 1 pretrial conference, but was not. Even so, plaintiff maintains that she r responded to the demands immediately after D .Sherman made the instant motion. Annexed to the opposition papers is plaintiffs response dated April 20, 201 1, w i h sets forth that eight of the hc thirteen treaters for which Dr. Sherman seeks authorizations rendered c m helevant to the case, in that Drs. Taylor and Foster arc plastic surgeons;that Drs. Troccoli and Sweeney are dermatologists; r that plaintiff visited with D .Shridharani only once when she had the flu;that plaintiff treated with D .Quraishi more than thrcc y m prior to the malpractice; that Dr. L i b is an ophthalmologist; and r that D .Zatzkin is a periodontist. The response M e r sets forth that the remaining treaters are r unknownto plaintiff. Attached to the response are authorizations for plaintiffs IRS records, W-23, and employment records from 2006 to the present. In reply, D . Sherman sets forth that plaintiff cannot unilaterally decide which r r authorizations are relevant and that he is entitled to all of the authorizations requested. D .Sherman hrther sets forth that x-rays arc material and necessary to his defense of the action and that the -3- [* 5] March 201 1 Order extended the time for completing an IMEuntil after the filing of the note of issue. 8 Under 22 N.Y.C.R.R.202.2 1(e), the court may vacate thc note of issue if, within twenty (20) days of the filing of note of issue, a party dernonstratcs that the case is not ready for trial because a material fact in the certificate of readiness is incorrect, or. .. the certificate of readiness fails to comply with the requirements of [22 N.Y.C.R.R.4 202.211. Vacating the note of issue is not appropriate when the moving party has had ample opportunity to complete discovery. OS v. Y Ph 206 A.D.2d 413, 414 (2d Dep t 1994); .. see &Q Scrvs.. PEL,9 A.D.3d 869,870 (4th Dep t 2004); v. M u d F Y, m GEICO Cornu 2 A.D.3d 9 17 (3rd Dep t 2003). Here, thrce of D .Sherman s demands were outstanding for many r months prior to the filing of the note of i s s u w n c demand is over two years old-yet prior to the instant motion, Dr. Sherman failed to inform the court that he believed that discovery w s a irrcomplete. % 72 A.D.3d 623 (1 st Dep t 20 1 0). Them is no basis to vacate the note of issue since Dr. Sherman had ample opportunity to compel disclosure and failed to do so due to his own inaction. m A.D.2d 307 (2d Dcp t 1997). 238 , Even assuming that D .Shcrman did not have ample time to complete discovery, he r has not shown that the records sought are material and neccswy to his defense. A plaintiff in medical malpractice suit waives the physician-patient privilege only with respect to his or her relevant past medical history. Gill v. M m 8 A.D.3d 340 (2d Dcp t 2004). The waiver docs not extend to unrelated illnesses or treatments. lQ,at 341. D .Sherman fails to set forth why he r needs rccords for plaintiffs dermatologists, plastic surgeons, periodontist, and the Beneral practiomr [* 6] who mated her on one occasion for flu symptoms. Nor does he offer reasons to compel authorizations for a tmter that has not rendered care to plaintiff since before 2003 or treaters that plaintiff does not recall seeing. ac r Turning to the issue of the x-ray, the M r h 201 1 Order doca allow D .Sherman to complete any outstanding IME past the note of issue date: 90 D .Sherman should not be precluded r f o obtaining the x-ray on timeliness grounds. For the same reason, D .Sherman s request to rm r vacate the note of issue dua to tha outstanding IME is denied. He agreed to hold any outstanding IME while the case w s on the trial calendar. a eu The court notes that plaintiff does not dispute that x-rays of her knee and f m r are material and nectssary to the defense of this action. H r objection to D .C a e taking x-rays rests e r rn on the grounds that they would bc redundant and harmhl. She hw not provided any expefl medical opinion or medical evidence to support her position. & w r c v v, CartpgEna, 55 A.D.3d 333 (1st Dtp t 2008). Absent support for her claim that the x-rays would be harmful, by putting the condition of her knee at issue, plaintiff may be compelled to undergo additional objective testing procedures which are safe, painless and noninvasive, including X rays[.] &era v. Shafron, 159 A.D.2d 614,6 14-15 (2d Dep t 1990) (citation omitted). Outstanding IMEs were to be completed by M y 31,201 1, but that time will be extended a as set forth below. [* 7] -- The court notes that Dr. Sherman does not move to compel the x-rays. Nevertheless, the court has discretion in suptrvidng discovery to grant relief on a motion whlch WBS not specifically requested as long as it is not dramatically unlike the relief sought, the proof supports it, and tho court i satisfied that no one is prejudiced by it. s 83 A.D.3d 998,999 (2d Dcp t 201 1). Given the need to resolve this issue quickly, the x-ray shall take place within 30 days of the date of the entry of this order. Accordingly, it is hereby ORDERED that the motion is granted to the extant that plaintiff shall appear at Dr. Crane s oMce for x-rays of her right knee and right lower femur within thirty (30) days of the date of entry of this order, and it is further AUG 29 201 ORDERED that the remainder of the motion is denied. NEW YORK COUNTY CLERK S OFFICE Dated: Augusb, ,201 I Y c JOAN .LOBIS, J.S.C.

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