Plaintiff Motion Sequence Nos. 1- Index No. 6421/03

Transcription

1 9! SHORT FORM ORDER SUPREME COURT-STATE OF NEW YORK PRESENT: HON. BRUCE D. ALPERT Justice TRIAL/lAS, PART 4 MARIANNE DEMPSEY, as Administrator of the Estate of ANNE MARIE DEMPSEY Plaintiff Motion Sequence Nos. 1- Index No. 6421/03 Motion Date: January against- LONG BEACH MEDICAL CENTER THOMAS JOYCE, M.D. and JOANNE "DOE" Defendants. The following papers read on these applications: 1) to strike Note of Issue 2) to quash subpoena Notices of Motion Answering Papers Supplemental Submission Reply Papers Upon the foregoing papers it is ordered that this application by defendant Joyce for an order striking plaintiff's Note of Issue and Certificate of Readiness permitting additional discovery and for other relief, is denied as moot, in view of

2 the parties ' stipulation (Exhibit 1) to the Sawyer Answering Affirmation dated December , which is hereby " So Ordered. Plaintiff's motion for an order pursuant to CPLR 2304, 3101, and 3103 quashing the subpoena served by defendant Joyce upon the decedent' s treating physician, Dr. Dov Statfeld, is denied. In this action plaintiff seeks recovery for alleged medical malpractice that resulted in the death of her daughter, Anne Marie Dempsey. The late Ms. Dempsey was admitted to Long Beach Medical Center on the evening of June , after she went to the emergency room for treatment. She died on July Dr. Statfeld, a non-party, was Anne Marie s treating physician from 1989 until her death, and her private attending physician for her last hospitalization. Defendant Joyce was the Emergency Room physician at the time of Anne Marie treatment and admission. The original bill of particulars (Exhibit A to the Joyce motion papers) set forth four alleged departres by defendant Joyce and is dated July By letter dated February , (Exhibit C to the MacDevitt affirmation in opposition), plaintiff's attorney advised counsel for defendant Joyce that he had not interviewed any treating physicians. At a compliance conference on July , the case was certified for trial. On October , the attorney for

3 defendant Joyce received plaintiff's Third Supplemental Bill of Particulars (Exhibit D to the Joyce motion papers), which now contained over twenty (20) new allegations of malpractice by defendant Joyce, including "improper reporting of information to Dr. Statfeld." The next day counsel for defendant Joyce received plaintiffs Note of Issue, as well as plaintiffs Expert Witness Disclosure, wherein plaintiff states that "plaintiff may call Dr. Statfeld as an expert and fact witness at the trial of this matter. Defendant Joyce made a motion to strike the Note of Issue and extend the time for discovery. Defendant Joyce further served Dr. Statfeld with a Judicial Subpoena Duces Tecum and served the parties with a notice for the subject physician s deposition. In an effort to resolve the matter, plaintiff provided a report by Dr. Statfeld dated November , and authorizations to obtain his records, together with an Additional Expert Witness Disclosure dated December 2004 (Exhibit 4 to plaintiff's moving papers). Various provisions of CPLR 3101 govern the discovery of expert witnesses and treating physicians. While CPLR 3101(d)(I) ( i) and (ii) concern expert witnesses, including experts in medical malpractice actions, CPLR 3101(d)(I)(iii) states the following as to treating physicians: Further disclosure concerning the expected testimony of any expert may be

4 obtained only by court order upon a showing of special circumstances and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate. However, a party, without court order, may take the testimony of a person authorized to practice medicine, dentistr or podiatr who is the party s treating or retained expert, as described in paragraph three of subdivision (a) of this section, in which event any other part shall be entitled to the full disclosure authorized by this article with respect to that expert without court order. The cases citing CPLR 3101(d)(I)(iii) generally concern expert witnesses and therefore deal with the requirement of "special circumstances" set forth in the first sentence. (see eg., Catalano v Moreland, 299 AD2d 881 (4th Dept.); Melendez v Roman Catholic Archdiocese of New York, 277 AD2d 64 (1st Dept.)) In contrast, defendant Joyce seeks the deposition of Dr. Statfeld, contending he "was an observer and active participant in the events surrounding the treatment at issue and the subsequent death of the decedent."(macdevitt affirmation in opposition, par. 12) In short, defendant Joyce s request is one to depose Dr. Statfeld as a fact witness. Review of the transcript of the deposition of plaintiff, Marianne Dempsey (Exhibit D to MacDevitt affirmation in opposition) confirms defendant's assessment of the nature of Dr. Statfeld' s role in the events surrounding the decedent's death. Unfortnately, the transcript of the follow-up deposition of Marianne Dempsey was not available for this Court to review. Review of the copy

5 of Dr. Statfeld' s office records that has been provided (Exhibit H to MacDevitt affirmation in opposition) is not helpful because of the marginal legibility of the physician s handwriting (see, Capati v Crunch Fitness International, Inc., 295 AD2d 181 (1st Dept.)), and, in any event, may not answer the question of the factual basis for plaintiffs new allegations of malpractice including the claim of improper reporting. On this record, to the extent that "special circumstances" are required here to depose Dr. Statfeld as a treating physician/fact witness (see, Tannenbaum v Tenenbaum, 8 AD3d 360; Lanzello v Lakritz, 287 AD2d 601; Dioguardi v St. John s Riverside Hospital, 144 AD2d 333), such circumstances are present. As Dr. Statfeld possesses factual information not otherwise available to defendant, special circumstances are presented, and the subpoena for his deposition will not be quashed. Alternatively, the Court finds that the subpoena issued for the deposition of Dr. Statfeld, as Anne Marie Dempsey s treating physician/fact witness, is not improper to the extent that it simply seeks discovery of factual information material and necessary" in the defense of this action. (CPLR 3101(a) and (d)(i)(iii)second sentence; see generally, Schroder v Consolidated Edison Company of New York, Inc., 249 AD2d 69 (1st Dept.) and Catalano v Moreland,

6 supra) Of course, the subpoena does not extend to any expert testimony or conclusions by Dr. Statfeld. No showing has been made that the Additional Expert Witness Disclosure already served does not suffice to establish compliance with discovery requirements for information regarding Dr. Statfeld as an expert (CPLR 3101 (d) (1 J) and, in any event, a treating physician may give an expert opinion without prior notice pursuant to CPLR 3101(d). (see, Krinsky v Rachleff, 276 AD2d 748) Based on the forgoing, the application to quash the subpoena issued for the deposition of Dr. Statfeld as a fact witness, is denied. DATED: March S. ENTERED MAR 2 3 Z005 NASSAU COUNTY OOTY ClU'