SHORT FORM Present: ORDER SUPREME COURT HON. UTE WOLFF LALLY, CINDY LIEBERMAN and BERNARD LIEBERMAN, -against- NORTH SHORE UNIVERSITY HOSPITAL and DR. ALBERT E. STANEK, - STATE OF NEW YORK Plaintiff(s), Defendant(s). Justice TRIAL/IAS, PART 20 NASSAU COUNTY MOTION DATE: 8/7/00.:13214/99 MO~~~~S&ENCE NO:l,tiB:2,&:3 CAL. NO.: The following papers read on this motion: Notice of Motion/ Order to Show Cause... l-4 Notices of Cross Motion... 5-10 Answering Affidavits... 14,15 Replying Affidavits... 16,17 Sur-Reply Affidavits... 18,19 Briefs: Plaintiff's/Petitioner's... Defendant's/Respondent's... Upon the foregoing papers, it is ordered that this motion by defendants for an order pursuant to CPLR 3124 compelling plaintiffs to comply with their Notice for Discovery and Inspection dated March 5, 2000, with respect to their demand that plaintiffs return plaintiff Cindy Lieberman's original pathology slides is granted. Motion by plaintiffs for an order pursuant to CPLR 3126 striking defendants' Answer based upon their failure to provide discovery as directed by this Court in its preliminary conference order, or an order pursuant to CPLR 3124 compelling defendant Dr. Stanek to be deposed at which time he shall contemporaneously interpret plaintiff Cindy Lieberman's pathology slides and compare them to photographs thereof; directing defendant North Shore
Lieberman v North Shore -2- Index University Hospital to produce Dr. Hajdu, the head of pathology, for a deposition; directing defendants to state whether any re-cuts of plaintiff Cindy Lieberman's tissue specimen have been produced and if so, directing their production to plaintiffs for their independent evaluation; and, directing the defendant North Shore University Hospital to produce Cindy Lieberman's pathology block to be marked for identification, is determined as provided herein. Cross-motion by defendants for an order pursuant to CPLR 3124 directing plaintiffs to produce photographs of Cindy Lieberman's pathology slides which they intend to use at Dr. Stanek's examination before trial and for a protective order pursuant to CPLR 3103 precluding plaintiffs from obtaining expert evidence from Dr. Hajdu at his examination before trial is determined as provided herein. In this medical malpractice action, plaintiffs allege that in December, 1996, defendant Dr. Stanek, a pathologist at defendant North Shore University Hospital, misread plaintiff Cindy Lieberman's breast pathology slides, resulting in a failure to diagnose breast cancer and necessitating bilateral mastectomies, including a radical mastectomy of the affected side. Cindy Lieberman's pathology slides were given to plaintiffs in December, 1996 to allow other doctors to examine them on a consultant basis. Plaintiffs have since refused to return the pathology slides. It is not disputed that these slides are in plaintiffs' attorney's possession; defendants seek their return.
Lieberman v North Shore -3 - Index "Although patients have the right to access their records concerning medical treatment (see, Public Health Law 17; Cynthia B. v New Rochelle Hosp. Med. Ctr.,.60 NY2d 452, 460, n. 3; see also, Wheeler v Commissioner of Social Servs. of City of N. Y., 233 AD2d 41, it is well settled that records taken by a doctor in the examination and treatment of a patient are property belonging to the doctor (Waldron v Ball Corp., 210 AD2d 611, 612; Parsley v Associates in Internal Medicine, 126 Mist 2d 996; Matter 90 Mist 2d 550, 552, affd 59 AD2d 862; Matter of Culbertson, 57 of Finkle, Mist 2d 391, 392-393)" (Gerson v New York Women's Medical, P.C., 249 AD2d 265). Even when, like here, a doctor lends records to the patient for a consult, he remains the rightful owner thereof unless ownership is specifically relinquished. Plaintiffs and their attorney are accordingly directed to return the original pathology slides to the defendants (Gerson v New York Women's Medical, P.C., supra). The Court notes that plaintiffs have not shown that the pathology slides will not be adequately preserved by defendants (Gerson v New York Women's Medical, P.C., supra, citinq, Schioppa v Pallotta, 242 AD2d 698; Lucarello v North Shore University Hospital, 184 AD2d 623; Jackson v Nelson, 81 AD2d 677). Said return shall take place within fifteen (15) days after service of a copy of this order with notice of entry upon the attorney for plaintiffs Plaintiffs' application to compel defendant Dr. Stanek to appear for an examination before trial at which time he shall
Lieberman v North Shore -4- Index interpret the pathology slides via a microscope has been'resolved via defendants' consent. Said deposition is to be held within twenty (20) days of plaintiffs' return of Cindy Lieberman's pathology slides to defendants. Plaintiffs' application to require defendants to state whether re-cuts have been produced 'from plaintiff Cindy Lieberman's tissue specimen and, if so, to produce same for inspection has also been resolved through consent; This demand will be responded to by Dr. Stanek at his deposition. Defendants' application to require plaintiffs to produce the photographs of Cindy Lieberman's pathology slides prior to Dr. Stanek's examination before trial is denied. Plaintiffs' application to require defendants to produce plaintiff Cindy Lieberman's pathology block at Dr. Stanek's deposition to have it marked for identification is granted. Said evidence has been shown to be relevant, material and necessary to plaintiffs in establishing their medical malpractice claim (CPLR 3101(a); Allen v Cromwell-Collier Pub. Co., 21 NY2d 403, 406-407; see also, Shanahan v Bambino, 271 AD2d 519; Lucarello v North Shore University Hosp., 184 AD2d 623). Plaintiffs' application to require defendants to produce the head of the defendant hospital's Pathology Department, Dr. Hajdu, for an examination before trial is denied. While CPLR 3106(d) affords plaintiffs the right to designate a particular officer, director, member or employee as a deposition witness, that statute also affords the defendants the right to substitute said witness.
Lieberman v North Shore -5 - Index Plaintiffs have failed thus far to establish any substantive grounds for requiring Dr. Hajdu to appear for a deposition. There has been no demonstration by defendants that his testimony is material and necessary to their preparation of their claim (Broadband Communications Incorporated v Home Box Office, Inc., 157 AD2d 479; compare, Calderone v Levites Realty Management Corp., 228 AD2d 357; EDP Medical Computer Systems, Inc. v Sears, Roebuck and co., 193 AD2d 645). Plaintiffs' allegation that Dr. Hadju "personally has read the pathology slides herein to check Dr. Stranek's interpretation" is based "upon information and belief" and is rejected as entirely speculative. Plaintiffs have an adequate remedy if the witness designated by defendants lacks sufficient knowledge (Lake Erie Distributors, Inc. v Martlet Importing Co., Inc., 221 AD2d 954). Defendants' application pursuant to CPLR 3103(a) for a protective order precluding plaintiffs from obtaining expert evidence from Dr. Hajdu is therefor granted. Dated:,bJ J.S.C. lieberman