Rawlins v. St. Joseph's Hosp. Health Ctr.

• Citation: 969 N.Y.S.2d 687,108 A.D.3d 1191,2013 N.Y. Slip Op. 05391
• Parties: Christopher RAWLINS, by and through his Legal Custodian, Angela RAWLINS, Plaintiff–Appellant, v. ST. JOSEPH'S HOSPITAL HEALTH CENTER, St. Joseph's Maternal Child Health Center, Maternal Child Health Center Pediatrics, Maternal Child Health Center Ob/Gyn, Stephen M. Brown, M.D., Jason E. Bernad, M.D., Katherine M. Walker, M.D., and Stephanie A. Diperna, M.D., Defendants–Respondents.
• Decision Date: 19 July 2013
• Court: New York Supreme Court Appellate Division

108 A.D.3d 1191

969 N.Y.S.2d 687

2013 N.Y. Slip Op. 05391

Christopher RAWLINS, by and through his Legal Custodian, Angela RAWLINS, Plaintiff–Appellant,

v.ST. JOSEPH'S HOSPITAL HEALTH CENTER, St. Joseph's Maternal Child Health Center, Maternal Child Health Center Pediatrics, Maternal Child Health Center Ob/Gyn, Stephen M. Brown, M.D., Jason E. Bernad, M.D., Katherine M. Walker, M.D., and Stephanie A. Diperna, M.D., Defendants–Respondents.

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

July 19, 2013.

Sidney P. Cominsky Trial Lawyers, LLC, Syracuse (Sidney P. Cominsky of Counsel), for Plaintiff–Appellant.

Hancock Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Defendants–Respondents St. Joseph's Hospital Health Center, St. Joseph's Maternal Child Health Center, Maternal Child Health Center Pediatrics, Maternal Child Health Center Ob/Gyn, Jason E. Bernad, M.D., Katherine M. Walker, M.D. and Stephanie A. Diperna, M.D.

PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

Plaintiff's legal guardian commenced this medical malpractice action seeking damages for injuries allegedly sustained by the infant plaintiff during his birth at defendant St. Joseph's Hospital Health Center (hospital). Plaintiff appeals from an order that denied in part his motion to compel certain discovery responses from the hospital and the remaining defendants with the exception of Stephen M. Brown, M.D. (collectively, defendants). On this appeal, plaintiff challenges Supreme Court's rulings with respect to 37 of his 56 discovery requests. As a preliminary matter, we reject plaintiff's contention that we should conduct a de novo review of his discovery demands ( see e.g. Giles v. Yi, 105 A.D.3d 1313, 1315–1316, 964 N.Y.S.2d 319;Finnegan v. Peter, Sr. & Mary L. Liberatore Family Ltd. Partnership, 90 A.D.3d 1676, 1677, 936 N.Y.S.2d 821;see also Radder v. CSX Transp., Inc., 68 A.D.3d 1743, 1745, 893 N.Y.S.2d 725).

On the merits, we note that CPLR 3101 requires “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101[a] ). The phrase “ ‘material and necessary should 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. The test is one of usefulness and reason’ ” (Matter of Wendy's Rests., LLC v. Assessor, Town of Henrietta, 74 A.D.3d 1916, 1917, 903 N.Y.S.2d 849;see Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406–407, 288 N.Y.S.2d 449, 235 N.E.2d 430). “Entitlement to discovery of matter satisfying the threshold requirement is, however, tempered by the trial court's authority to impose, in its discretion, appropriate restrictions on demands which are unduly burdensome ... and to prevent abuse by issuing a protective order where the discovery request may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” ( Kooper v. Kooper, 74 A.D.3d 6, 10, 901 N.Y.S.2d 312 [internal quotation marks omitted]; seeCPLR 3103[a] ). In opposing a motion to compel discovery, a party must “establish that the requests for information are unduly burdensome, or that they may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” ( Kimball v. Normandeau, 83 A.D.3d 1522, 1523, 921 N.Y.S.2d 446 [internal quotation marks omitted]; see generallyCPLR 3103[a] ).

Applying those rules here, we conclude that the court erred in denying plaintiff's motion with respect to items 12, 14–16, 21, 24, 29, and 53, and otherwise properly denied the motion. We therefore modify the order accordingly. With respect to those parts of the motion properly denied by the court, we note that the court did not abuse its discretion in defining “the period of time at issue” as the period from January 1, 2001 to December 31, 2002. “ ‘The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage’ ” (James v. Wormuth [appeal No. 2], 93 A.D.3d 1290, 1291, 941 N.Y.S.2d 388affd.21 N.Y.3d 540, 974 N.Y.S.2d 308, 997 N.E.2d 133 [2013] ). The “standards of practice” element logically applies to the time at which the alleged deviation occurred ( see Vera v. Soohoo, 41 A.D.3d 586, 588, 838 N.Y.S.2d 154;Nicholas v. Reason, 84 A.D.2d 915, 915, 447 N.Y.S.2d 55) and, here, the court's “period of time at issue” includes August 27, 2002, the date of plaintiff's birth. The court's “period of time” also should apply to those parts of the order concerning the discovery requests that we conclude should have been granted herein, to the extent that the materials sought by plaintiff in those requests existed during that period.

With respect to items 12 and 21, plaintiff sought discovery of certain national standards published by various organizations for fetal monitoring and pediatric advancement of life support. Upon our review of plaintiff's “statements of facts and claims,” we conclude that plaintiff sought discovery of those standards in order to aid him in establishing the alleged negligence of defendant Stephen M. Brown, M.D. in failing to identify evidence of fetal distress, and the hospital's alleged negligence in allowing and engaging in improper neonatal resuscitation. We further conclude that those documents are “material and necessary” to the prosecution of those claims in this action (CPLR 3101[a] ) and, thus, that the court abused its discretionin denying those parts of plaintiff's motion with respect to them ( see Boyea v. Benz, 96 A.D.3d 1558, 1559, 946 N.Y.S.2d 757). Contrary to defendants' contention, the alleged public availability of those documents fails to meet the standards for “[p]revention of abuse” set forth in CPLR 3103(a) ( see Kimball, 83 A.D.3d at 1523, 921 N.Y.S.2d 446). Moreover, the fact that “the documents sought may be available in public records does not, in itself, preclude production of those records from a party” ( Alfaro v. Schwartz, 233 A.D.2d 281, 282, 649 N.Y.S.2d 176;see Long v. State of New York, 33 A.D.2d 621, 621, 304 N.Y.S.2d 785;cf. Matter of Beryl, 118 A.D.2d 705, 707, 499 N.Y.S.2d 980). In any event, defendants concede that there is some doubt whether the documents plaintiff seeks in item 12 are available to the public. Inasmuch as defendants contend for the first time on appeal that there should be no disclosure with respect to item 12 because they are not in possession of the documents sought in items 12 and 21, we remit the matter to Supreme Court for a hearing to determine whether defendants possess the documents covered by those items ( see generally Matter of Niagara County Water Dist. v. Board of Assessors of City of Lockport, 31 A.D.2d 1004, 1005, 299 N.Y.S.2d 239).

We agree with plaintiff that the court abused its discretion in denying that part of his motion seeking discovery of a protocol entitled “Circulating Vaginal Delivery” (CVD), pursuant to item 14 ( see Boyea, 96 A.D.3d at 1559, 946 N.Y.S.2d 757;see also Alfaro, 233 A.D.2d at 282, 649 N.Y.S.2d 176). We conclude that the CVD protocol is “material and necessary” to the prosecution of plaintiff's action (CPLR 3101[a] ). Defendants' purported lack of knowledge with respect to the CVD protocol does not preclude disclosure of that document ( see generally Kimball, 83 A.D.3d at 1523, 921 N.Y.S.2d 446). Also under item 14, plaintiff sought discovery of documents with respect to the interpretation and management of fetal heart rate patterns, and we further conclude that such documents are “material and necessary” to the prosecution of this action (CPLR 3101[a] ). We reject defendants' contention that the request for those documents is unduly burdensome ( see Engel v. Hagedorn, 170 A.D.2d 301, 301, 566 N.Y.S.2d 25;see generallyCPLR 3103[a] ). We do not address defendants' final contention with respect to item 14, which is unpreserved for our review ( see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

With respect to item 15, we conclude that the court abused its discretion in denying plaintiff's motion to the extent that he sought discovery of materials concerning cesarean sections. We conclude that those materials are “material and necessary” to the prosecution of plaintiff's action (CPLR 3101[a] ), and we note that defendants' purported lack of knowledge with respect to those materials does not preclude disclosure of them ( see Kimball, 83 A.D.3d at 1523, 921...