Cole v Rosensweig
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Cole v Rosensweig 2014 NY Slip Op 33356(U) December 19, 2014 Supreme Court, New York County Docket Number: 150219/2009 Judge: Peter H. Moulton Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Supreme Court o~ the State of New York New York County: Part 57 --------------------------------------x BARBARA COLE, Plaintiff, -against- Index No. 150219/2009 NORTON S. ROSENSWEIG, M.D., Defendant. --------------------------------------x Peter H. Moulton, J.s.c. This action alleging medical malpractice has been assigned to me for trial. The parties appeared.before me on December 17, 2014 for oral argument on defendant's in limine motion. The following constitutes the decision and order of the court on the motion. Plaintiff Barbara Cole began treating with defendant Norton Rosensweig, an interni·st and gastroenterologist, Plaintiff complained problems. Dr. Rosensweig treated Ms. Cole approximately 40 times between 2003 and of 2007. an His suffered from gastroesophogeal syndrome. array of primary refl~x various in early 2003. gastrointestinal diagnoses were that·· she disease and irritable bowel Plaintiff contends that her correct diagnosis was celiac disease, and that defendant's failure to diagnose and treat her for celiac disease constituted malpractice. suffered a variety of symptoms, She including, extreme pain, hair loss, and muscle weakness, but alleges not that she limited to, as a result of this [* 2] alleged departure and that she was unable to work or engage in daily activities as a result. Defendant contends that his tre~tment of plaintiff was· well within the standard of care. He disputes that she has celiac dise.ase. Defendant raising initially brought an in limine motion essentially four issues. in August The motion was deferred as the parties attempted to engage in settlement negotiations and then until the case was assigned to a judge for trial. The first identified 20 issue raised by defendant lay witnesses on dam':9_es, is that plaintiff has which he contends must result in duplicative testimony and wasted time at trial. In answering papers and at oral argument plaintiff's counsel states that he has no intention of calling all io witnesses, but that such a large roster is necessary because the witnesses live outside of the state and have busy schedules. Once a trial date is set, he stated, he will be able to narrow down the list. With respect to these 20 proposed lay witnesses, the ~ourt directs plaintiff to winnow the list to 5, of which she may call a maximum of three. The plaintiff shall provide the list of five potential lay witnesses on damages to defendant's counsel 20 days prior to trial. 1 'The court will confer with the parties concerning a trial date via email in the corning days. 2 [* 3] Next, defendant argues that plaintiff's "recruiting expert• should be precluded from testifying at trial. Plaintiff offers this witness in support of her lost wages claim, to verify the salary ranges in plaintiff's Chosen field of employment. Given· that the 310l(d) statement for this witness was provided in August, and trial of this matter will not go forward until early 2015, the notice was sufficiently timely. 3101 (d) Additionally the content of the statement is sufficiently detailed to provide notice of this witness's testimony. Accordingly, the branch pf the in limine motion seeking to bar this witness's testimony is denied. Defendant of course retains any the right to assert objections to the witness's qualifications and to the content of his testimony. Defendant's next application concerns a damage allegation that was first asserted by plaintiff in the statement of one of her expert witnesses. which is dated April 24, 2014, supplemental 310l(d) This 310l(d) statement, includes the allegation that plaintiff is suffering from permanent peripheral neuropathy as a result of the alleged departure from the standard of care. condition is not listed in the bill of particulars, This nor was it discussed at plaintiff's deposition. In general, evidence concerning a specific injury not mentioned in the bill of. particulars will be excluded at trial unless the opposing party should have known of such injury. D' Angelo v Bryk, (See Here defendant has been given 205 AD2d 935.) 3 [* 4] ample notice that plaintiff is claiming this condition. Indeed, defendant's own expert's 310l(d) statement, ~ated August 2, 2014, asserts that the expert's testimony will dispute any causal connection between plaintiff's alleged peripheral neuropathy and Dr. Rosensweig's care. Any prejudice arising from plaintiff asserting this new injury after filing deposition of the note of issue the plaintiff, and can be addressed of the two by further physicians reports apparently first identified this condition. whose Accordingly, plaintiff shall appear for a continued deposition on this topic on or before January 23, 2015. At this continued deposition of plaintiff, defendant's counsel may also inquire concerning an issue discussed during oral argument on December 17: whether plaintiff has recently seen medical providers not previously disclosed to defendant. Defendant's counsel stated at oral argument that the subpoenaed medical records o~ Dr. Marin, a gynecologist who t~eated plaintiff, indicate that plaintiff has indeed seen new medical professionals. Defendant is also given leave to depose Drs. Green and Savage. Plaintiff produced the reports of hoth physicians, which plaintiff states both contain a diagnosis: of peripheral neuropathy. These depositions should be completed by January 30, 2015. The final issue raised by. defendant 4 is that it has not [* 5] received HIPAA compliant authorizati9ns nor Arons' authorizations for a number of the providers identified by plaintiff in her Notice of Intention to Introduce Business Records. Defendant also objects that the authorizations that he has received all call for records generated from 2003 to date. Defendant argues that the relevant period should begin before 2003, treating plaintiff. the year that defendant began He also notes that the authorizations do not include information on HIV status. Plaintiff asserts authorizations and that that it has provided the defendant .has not relevant been sufficiently specific concerning which Arons authorizat.ions he wants. affirmation, HIPAA In his plaintiff offers to "review the providers with the defense in an effort to agree which providers are irrelevant to the issues in question ... " The court directs the parties to proceed in this fashion, with an eye tow~rd that at will be introduced authorizations. The reaching cionsensus on the records trial, following and on parameters the necessary Arons shall apply as parties undertake their discussions concerning these issues. the All medical records should be produced for years beginning 2001, if provider years. treated the plaintiff for that duration of the Plaintiff is not required to provide authorizations for HIV status, mental health treatment, -or alcohol or drug tieatment. has failed to demonstrate sufficient 2Arons v Jutkowitz, 9 NY3d 393. 5 Defendant need for this information. [* 6] (See PHL § 2785 (2); MHL § AD3d 452; Del Terzo v Hosp. 33 (c) (1); Abdur-Rahman v Pollari; · 107 For Special Surgery, 95 AD3d 551.) To the extent the ·parties are l)nable to come to a:n agreement concerning the relev·ant medical r.ecords and Arons authorizations, or if further issues arise as this action ~s ~rought to trial,. they ·may schedule a conference via email with Law Clerk Hasa Kingo at hkinqo@nycourts.gov. CONCLUSION For granted the in reasons part and stated, denied defendant's in part as in. limine set forth constitutes the decision and order of the court. DATE: December 19,. 2014 J.S.C. · IP'IE.i!E.IR !hi. MOULTOI\\ • ;.s.c. 6 motion above. is This
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