Sawyer v Abodeely

[*1] Sawyer v Abodeely 2016 NY Slip Op 51753(U) Decided on November 18, 2016 Supreme Court, Clinton County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2016
Supreme Court, Clinton County

Lance Sawyer, Plaintiff,

against

Adam J. Abodeely, M.D., CAROLYN RAE MANDEVILLE, RPA-C, ADIRONDACK SURGICAL GROUP, LLP, ADIRONDACK MEDICAL CENTER, ADIRONDACK MEDICAL CENTER D/B/A ADIRONDACK HEALTH, AND ADIRONDACK HEALTH INITIATIVES, INC., Defendants.



2014-0417



LaFave, Wein & Frament, PLLC, Guilderland (Chad A. Jerome of counsel), for plaintiff.

Maguire Cardona, P.C., Albany (Alicia M. Dodge of counsel), for defendants Adirondack Medical Center, Adirondack Medical Center d/b/a Adirondack Health and Adirondack Health Initiatives, Inc.

Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Donald P. Ford, Jr. of counsel) for defendants Adam J. Abodeely, M.D., Carolyn Mandeville, RPA-C and Adirondack Surgical Group, LLP
Robert J. Muller, J.

This motion involves a disclosure dispute in a medical malpractice action stemming from a sigmoid colectomy performed on plaintiff by defendant Adam J. Abodeely on November 12, 2012 at defendant Adirondack Medical Center (hereinafter AMC).[FN1] Plaintiff contends, among [*2]other things, that the surgery was unnecessary to treat his gastrointestinal problems including diverticulitis and leukocytosis. At his deposition, Abodeely was unable to estimate the number of surgeries that he had performed in 2012 as well as the percentage of those that had been colectomies, and when he was asked if there was a record which would provide such information, he responded: "I'm sure you could refer to the hospital database." Shortly thereafter, plaintiff served AMC with a notice of discovery and inspection, dated February 26, 2015, seeking, as relevant to the current motion, the following:

4. A listing/compilation of the numbers of, the types of and the dates of any surgeries performed by Adam J. Abodeely, M.D. (from January 1, 2010 to the present).

5. A listing/compilation of the numbers of and dates of any surgeries performed from 2010 to the present by Adam J. Abodeely, M.D., for diverticular disease.

6. A listing/compilation of the numbers of and dates of any colectomies performed from 2010 to the present by Adam J. Abodeely, M.D.

AMC responded on March 18, 2015 and, with respect to paragraphs 4, 5 and 6 of the demand, set forth a list of objections, including that the paragraphs sought information that was not material and necessary, as well as being, among other things, an unreasonable annoyance and unreasonably burdensome, overly vague and palpably improper. Nonetheless, AMC indicated that "[s]ubject to [its] objections, a request has been made"[FN2] and the "response may be supplemented." The three responses were not, however, supplemented and the parties were unable to resolve their dispute regarding the three paragraphs. A conference with the Court did not resolve the dispute, resulting in plaintiff making this motion to compel AMC to respond.

"Trial courts have broad discretionary power to control and supervise discovery and determine what documents are 'material and necessary' under CPLR 3101 (a)" (Div-Com, Inc. v Tousignant, 116 AD3d 1118, 1119 [2014]; see O'Buckley v County of Chemung, 112 AD3d 1190, 1191 [2013]). "The words 'material and necessary' as used in CPLR 3101 must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Hayes v Bette & Cring, LLC, 135 AD3d 1058, 1059 [2016] [internal quotation marks, brackets and citations omitted]; accord Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). "'The test is one of usefulness and reason'" (Matter of Saratoga Prop. Devs., LLC v. Assessor of City of Saratoga Springs, 62 AD3d 1107, 1109 [2009], quoting Matter of Food Fair v Board of Assessment Review of Town of Niskyuana, 78 AD2d 335, 337 [1981]). The information sought need not necessarily be ultimately admissible at trial since "'pretrial discovery extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof'" (Romano v Steelcase Inc., 30 Misc 3d 426, 428 [Sup Ct 2010], quoting Twenty Four Hour Fuel Oil Corp. v Hunter [*3]Ambulance, 226 AD2d 175, 175 [1996]).

AMC contends that the information requested in paragraphs 4, 5 and 6 of plaintiff's demand will require it to create a document. It such regard, "it is axiomatic that a party may not be compelled to create documents in order to comply with discovery demands" (Matter of General Elec. Co. v Macejka, 252 AD2d 700, 701 [1998], lv dismissed 92 NY2d 1012 [1998]; see Lawyer v Albany OK Cab Co., 142 AD2d 871, 872 [1988]; Weinstein, Korn & Miller, NY Civ Prac ¶ 3120.16). The Court notes, however, that such objection was not asserted by AMC in response to plaintiff's demand nor during the good faith efforts to resolve this disclosure dispute. It appears to have been interjected for the first time in opposition to this motion. Further, Abodeely's testimony reflected his understanding that such records were kept and readily accessible, and hospitals are generally required to keep extensive records as well as "a system of coding and indexing" that "shall allow for timely retrieval by diagnosis and procedure" (10 NYCRR § 405.10 [a] [5]). Significantly, the assertion that the requested records do not exist was made only in the affidavit of an attorney who does not claim personal knowledge of the relevant facts (see e.g. Payant v Imobersteg, 256 AD2d 702, 704 [1998]) and the specific source of the attorney's information (i.e. the person at AMC and his/her position) was not even identified.[FN3] Under the circumstances, the Court is unpersuaded that disclosure is precluded on this ground.

Defendants further argue that the demanded information does not meet the material and necessary criteria. The number of prior similar medical procedures conducted by a medical professional during a defined period of time may, under some circumstances, provide relevant information (see Hommel v Dental Care Servs., 159 AD2d 754, 754-755 [1990]; see also Cole v Panos, 128 AD3d 880, 883-884 [2015]). Abodeely testified that he had been granted privileges at AMC in July 2010 and he gave a general estimate of the number of times he had performed the relevant surgery. In light of such testimony and given plaintiff's theories of the case (including negligent surgery, failure to properly diagnose and unnecessary surgery), the Court is not persuaded that the requested information falls beyond the parameters of the liberal standard applicable in disclosure (see e.g. American Assn. of Bioanalysts v New York State Dept. of Health, 12 AD3d 868, 869 [2004]). Plaintiff's request, however, that AMC produce records of Abodeely's surgeries from January 1, 2010 is clearly improper since Abodeely was not given privileges at AMC until mid-2010. Indeed, the Court is limiting the demand for the requested information to a period of two years prior to the subject surgery. Further, the Court is not persuaded that a list of the surgeries by Abodeely occurring after plaintiff's surgery is material or should be disclosed. In addition to limiting the demands to two years prior to November 12, 2012, the Court further stresses that the information requested is limited to dates of surgery and designation of the type of surgery. Any identification information about any nonparty patient is not within the scope of the demand and shall not be released in any fashion (see e.g. Cole v Panos, 128 AD3d at 884).

Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is

ORDERED that plaintiff's motion is granted, in part, and AMC is directed, within 30 days of the date of this Decision and Order, to provide the information demanded in paragraphs 4, 5 and 6 of plaintiff's Notice for Discovery and Inspection, dated February 26, 2015, subject to the limits hereinafter set forth; and it is further

ORDERED that the information demanded in said paragraphs 4, 5 and 6 of plaintiff's demand is limited to the two year period prior to the date of plaintiff's surgery, and such information is further limited to a list of the dates of surgery and the corresponding designation of the type of surgery performed; and it is further

ORDERED that any identification information about any nonparty patient is not within the scope of the demand and shall not be released in any fashion without further order of the Court; and it is further

ORDERED that plaintiff's motion is otherwise denied; and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with plaintiff's Amended Notice of Motion dated May 31, 2016. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513.

Dated: November 18, 2016

Lake George, New York

____________________________________

ROBERT J. MULLER, J.S.C.

ENTER:

Papers reviewed:

1. Affirmation in Support of Plaintiff's Motion of Chad A. Jerome, Esq., dated May 26, 2016, annexed Exhibits A through J.

2. Plaintiff's Memorandum of Law, dated May 25, 2016.

3. Affidavit in Opposition to Plaintiff's Motion of Donald P. Ford, Jr., Esq., dated June 1, 2016, annexed Exhibits A through G.

4. Affidavit in Opposition to Plaintiff's Motion of Alicia M. Dodge, Esq., dated June 10, 2016, annexed Exhibits A through B.

5. Reply Affirmation of Chad A. Jerome, Esq., dated June 14, 2016.

Footnotes

Footnote 1: Although the disclosure demand in dispute was directed to AMC, the current motion lumps together AMC, Adirondack Medical Center d/b/a Adirondack Health and Adirondack Health Initiatives, Inc. All such defendants are included within the reference herein to AMC.

Footnote 2: Although somewhat ambiguous, this appears to reflect that AMC's attorneys had made a request to their client (i.e. AMC) for such information.

Footnote 3: The broadly phrased contention by AMC's attorney states: "I have been advised by our client that the lists requested by counsel for the plaintiff are not maintained in the regular course of business at [AMC] and that such lists very much so require the creation of a document."