Lucas v. Stam

147 A.D.3d 921

48 N.Y.S.3d 150

Shavonn LUCAS, as administrator of the estate of Andre Wright, appellant-respondent,

v.Lawrence STAM, etc., et al., defendants,Susan Gordon, etc., et al., defendants-respondents-appellants;

Martin Clearwater & Bell, LLP, nonparty-respondent-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 15, 2017.

Brand Brand Nomberg & Rosenbaum, LLP, New York, NY (Brett J. Nomberg of counsel), for appellant-respondent.

Martin Clearwater & Bell, LLP, New York, NY (Barbara D. Goldberg and John L.A. Lyddane of counsel), nonparty-respondent-appellant pro se and for defendants-respondents-appellants.

L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and BETSY BARROS, JJ.

In an action to recover damages for medical malpractice and lack of informed consent, (1)(a) the plaintiff appeals, as limited by her brief, from so much of an amended order of the Supreme Court, Kings County (Jacobson, J.), dated April 4, 2014, as granted that branch of her motion which was pursuant to CPLR 3126 to strike the separate answers of the defendants Susan Gordon, Pawan Bhatnagar, William M. Schiff, and New York Presbyterian Hospital Columbia University Medical Center for failure to comply with court-ordered discovery only to the extent of imposing a monetary sanction upon them and their counsel, nonparty Martin Clearwater & Bell, LLP, and (b) the defendants Susan Gordon, Pawan Bhatnagar, William M. Schiff, and New York Presbyterian Hospital Columbia University Medical Center, and nonparty Martin Clearwater & Bell, LLP, cross-appeal, as limited by their brief, from so much of the same amended order as granted those branches of the plaintiff's motion which were pursuant to CPLR 3126 to strike the separate answers of those defendants for failure to comply with court-ordered discovery to the extent of imposing a monetary sanction upon them and pursuant to 22 NYCRR 130–1.1 to impose a monetary sanction upon nonparty Martin Clearwater & Bell, LLP, and (2)(a) the plaintiff appeals, as limited by her brief, from so much of an order of the same court dated November 12, 2014, as denied those branches of her motion which were for leave to renew that branch of the prior motion which was pursuant to CPLR 3126 to strike the separate answers of the defendants Susan Gordon, Pawan Bhatnagar, William M. Schiff, and New York Presbyterian Hospital Columbia University Medical Center, to strike the answer of the defendant Columbia Ophthalmology Consultants, and for leave to enter a default judgment against the defendant Columbia Ophthalmology Consultants, and (b) the defendants Susan Gordon, Pawan Bhatnagar, William M. Schiff, Columbia Ophthalmology Consultants, and New York Presbyterian Hospital Columbia University Medical Center cross-appeal, as limited by their brief, from so much of the order dated November 12, 2014, as denied their cross motion pursuant to 22 NYCRR 130–1.1 to impose costs and sanctions upon the plaintiff's counsel.

ORDERED that the amended order dated April 4, 2014, is reversed insofar as appealed and cross-appealed from, on the facts and in the exercise of discretion, that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the separate answers of the defendants Susan Gordon, Pawan Bhatnagar, William M. Schiff, and New York Presbyterian Hospital Columbia University Medical Center for failure to comply with court-ordered discovery is granted, and that branch of the plaintiff's motion which was pursuant to 22 NYCRR 130–1.1 to impose a monetary sanction upon nonparty Martin Clearwater & Bell, LLP, is denied; and it is further,ORDERED that the appeal from so much of the order dated November 12, 2014, as denied that branch of the plaintiff's motion which was for leave to renew that branch of the prior motion which was pursuant to CPLR 3126 to strike the separate answers of the defendants Susan Gordon, Pawan Bhatnagar, William M. Schiff, and New York Presbyterian Hospital Columbia University Medical Center for failure to comply with court-ordered discovery is dismissed as academic in light of our determination on the appeal from the amended order dated April 4, 2014; and it is further,

ORDERED that the order dated November 12, 2014, is affirmed insofar as reviewed on the appeal and insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants Susan Gordon, Pawan Bhatnagar, William M. Schiff, and New York Presbyterian Hospital Columbia University Medical Center.

This medical malpractice action arises from ophthalmological surgery performed on September 5, 2007, on the plaintiff's decedent by the defendant William M. Schiff, a vitreoretinal surgeon, at the Harkness Eye Institute, which is owned and operated by the defendant New York Presbyterian Hospital Columbia University Medical Center (hereinafter the Hospital). The plaintiff alleges that prior to the surgery, a surgical booker working at the Hospital gave the decedent a history and physical form to provide to his internist, the defendant Lawrence Stam, in order to obtain medical clearance for the surgery. The form, which was partially completed by the surgical booker, indicated that the surgery was going to take place under local anesthesia. Stam wrote on the form that the decedent was a "moderate risk for surgery," and under the preprinted portion of the form stating, "Patient is in satisfactory condition for local/standby anesthesia," Stam wrote, "yes." The plaintiff alleges that the surgery was performed on both eyes under general anesthesia, and that the surgery lasted approximately seven hours. As a result of the surgery having been performed under general anesthesia, the decedent allegedly suffered a major stroke and other injuries.

This action was commenced against, among others, Schiff, the Hospital, the defendant Susan Gordon, a nurse who assisted the attending anesthesiologist, and the defendant Pawan Bhatnagar, a surgeon who assisted Schiff (hereinafter collectively the defendants). The bills of particulars alleged, among other things, that Schiff and the Hospital negligently failed to obtain proper medical clearance for the surgery, used the wrong medical clearance form, and failed to inform Stam that the surgery was going to be performed under general anesthesia.

In February 2012, the plaintiff demanded that the defendants produce the names of all surgical bookers who were working at the Hospital in September 2007. After the defendants failed to respond to the demand, the Supreme Court directed them to comply. In a letter dated August 8, 2012, an attorney from Martin Clearwater & Bell, LLP (hereinafter Martin Clearwater), the law firm representing the defendants, disclosed the names of two surgical bookers and represented that both individuals had left their employment with nonparty 61 Street Service Corp. in May 2008. Thereafter, the plaintiff's counsel learned that one of those surgical bookers, Marcia Barnaby, was, in fact, working at the Hospital. During a subsequent court conference, the attorney from Martin Clearwater explained that he made "an honest mistake" in his representation of Barnaby's employment status.

After serving a subpoena on 61 Street Service Corp., the plaintiff's counsel learned the name of another surgical booker, Anthony Pastor, who was working at the Hospital in September 2007. Based upon, among other things, the defendants' failure to disclose Pastor's name, the Supreme Court held a sanctions hearing in June 2013. At the hearing, an attorney from Martin Clearwater claimed that the failure was an "oversight." However, subsequently, the plaintiff's counsel learned that the same Martin Clearwater attorney had, in fact, interviewed Pastor in the summer of 2012, and that Pastor told the attorney that his handwriting appeared on the subject history and physical form.

During discovery, the plaintiff had also demanded that the defendants provide the clearance forms used by the Hospital and Schiff in and around September 2007. The defendants responded that the only clearance form used was the same history and physical form contained in the decedent's medical record. After motion practice, the Supreme Court issued an order directing the defendants to provide an affidavit to the same effect. Upon the defendants' failure to comply with that order, on November 26, 2012, the court orally directed that the separate answers of Schiff and the Hospital would be stricken unless Schiff submitted a compliant affidavit within 20 days. The plaintiff served a notice to settle order and a proposed order requiring that Schiff's affidavit cover the entire time period of 2007. The defendants served a proposed counter-order limiting the time period covered in Schiff's affidavit to January 1, 2007, through September 5, 2007. In an order dated December 17, 2012, the court directed that the answers of Schiff and the Hospital would be deemed stricken unless within 20 days from November 26, 2012, Schiff produced an affidavit stating as follows: "In the year 2007, all of my patients undergoing eye surgery at [the Hospital] were only given one History and Physical form to be completed before undergoing eye surgery regardless of the type of anesthesia they were receiving, which is the same form that was used for the [decedent's] eye surgery of September 5, 2007 at [the Hospital]." Nevertheless, a Martin Clearwater attorney served an affidavit from Schiff dated December 13, 2012, that only covered the period from January 1, 2007, through September 5, 2007.

The plaintiff moved pursuant to CPLR 3126 to strike the separate answers of the defendants for failure to comply with court-ordered discovery and pursuant to 22 NYCRR 130–1.1 to impose monetary sanctions upon Martin Clearwater. In an amended order dated April 4, 2014, the Supreme Court found that "the willful and contumacious conduct of defendants can be inferred from defendants' continuous...