PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice
Motion Seq. Nos.: 01, 02
Motion Dates: 09/25/18 09/25/18
The following papers have been read on these motions:
Papers Numbered Notice of Motion (Seq. No. 01), Affirmations and Exhibits Notice of Cross-Motion (Seq. No. 02), Affirmations and Exhibits Affirmation in Reply to Motion (Seq. No. 01) and in Opposition toCross-Motion (Seq. No. 02) and Exhibits Affirmation in Reply to Cross-Motion
Upon the foregoing papers, it is ordered that the motions are decided as follows:
Plaintiff moves (Seq. No. 01), pursuant to CPLR § 3126, for an order striking defendant Saint Francis Hospital, Roslyn, New York's ("St. Francis") Verified Answer for failure to comply with plaintiff's discovery demands.
Defendant St. Francis opposes the motion and cross-moves (Seq. No. 02), pursuant to CPLR § 3126, for an order dismissing plaintiff's Complaint with prejudice for failing to comply with Court Ordered discovery; or, in the alternative, cross-moves, pursuant to CPLR § 3126(3), for an order precluding plaintiff from presenting evidence or testifying at the time of trial in support of the allegations of malpractice or damages due to the failure to provide Court Ordered discovery; and/or moves for an order vacating plaintiff's demands for Quality Assurance material pursuant to Public Health Law § 2805-m. Plaintiff opposes the cross-motion.
Plaintiff commenced the instant medical malpractice action with the filing of a Summons and Complaint on or about July 14, 2016. See Plaintiff's Affirmation in Support of Motion (Seq. No. 01) Exhibit A. Issue was joined by defendant St. Francis on or about August 11, 2016. See Plaintiff's Affirmation in Support of Motion (Seq. No. 01) Exhibit B. Issue was joined by defendant Jim Hilepo, M.D. on or about August 23, 2016. See Plaintiff's Affirmation in Support of Motion (Seq. No. 01) Exhibit C. On February 21, 2017, the parties entered into a Preliminary Conference Order. See Plaintiff's Affirmation in Support of Motion (Seq. No. 01) Exhibit D. On June 27, 2017, the parties entered into a Compliance Conference Order that was So-Ordered by this Court. See Plaintiff's Affirmation in Support of Motion (Seq. No. 01) Exhibit E. On October 3, 2017, the action was discontinued against defendant Jim Hilepo, M.D. See Plaintiff's Affirmation in Support of Motion (Seq. No. 01) Exhibit F.
In support of plaintiff's motion (Seq. No. 01), her counsel submits, in pertinent part, that, "[p]laintiff's case against SAINT FRANCIS HOSPITAL concerns the care and treatment that Ms. Forrest received at their facility. It is plaintiff's contention that defendant, SAINT FRANCIS HOSPITAL, failed to properly institute measures to protect Ms. Forrest's skin from becoming damaged by pressure; failed to properly implement a care plan for preventing and healing pressure ulcers after they developed; and, failed to adequately care for and treat Ms. Forrestduring her admission. As such, plaintiff served Combined Discovery Demands, dated November 3, 2016, demanding: All documents, including, but not limited to, all of your policies, rules, regulations, procedures, protocols, guidelines, standards, training manuals, instructions, pamphlets and/or any other written material with regard to the diagnosis and treatment of the condition for which you operated and/or treated on the Plaintiff. This is to include any operative protocols.... Initially, defendant objected to the demand but also indicated that it was searching for material responsive to the demand.... Thereafter, defendant supplemented its response by providing a copy of its Pressure Ulcer Prevention Policy. Defendant did not provide any materials regarding SAINT FRANCIS HOSPITAL's procedures and/or protocols for wound care guidelines, would care assessment, wound care treatment and/or incontinence guideline - all health conditions that Ms. Forrest was supposed to be treated for while in the care of SAINT FRANCIS HOSPITAL.... Because defendant's responses were deficient, plaintiff served a Notice for Discovery and Inspection, dated October 13, 2017, which renewed prior demands for SAINT FRANCIS HOSPITAL's policies and procedures regarding the diagnosis and treatment of all conditions for which SAINT FRANCIS HOSPITAL treated Ms. Forrest.... More specifically, plaintiff detailed her demand for documents pertaining to policies and procedures in place at the time Ms. Forrest was admitted for wound care guidelines, wound care assessment, wound care treatment and/or any incontinence guidelines.... Further, plaintiff demanded hospital policy protocols, standard procedure, intervention protocols, and written rules concerning dressing selection, treatment guidelines, and documentation of wound guidelines.... Despite the relevancy of the demanded documents, defendant made general objections to providing these materials arguing that they were 'Quality Assurance material.'... Defendant limited its response to itsPressure Ulcer Prevention Policy. Moreover, despite the fact that plaintiff's initial demands called for: all documents, including, but not limited to, all policies, rules, regulations, procedures, protocols, guidelines, standards, training manuals, instructions, pamphlets and/or any other written material with regard to the diagnosis and treatment of the condition for which you operated and/or treated on the plaintiff-decedent. This is to include any operative protocols, it failed to provide any documentation related to its policy, or any other treatment that Ms. Forest received at its facility, but not limited to, its checklists and EMR Best Practices. To date, defendant has failed to provide material responses to plaintiff's multiple demands as to the policies and procedures that were in place during Ms. Forrest's admittance to SAINT FRANCIS HOSPITAL, specifically those pertaining to wound care and incontinence treatment." See Plaintiff's Affirmation in Support of Motion (Seq. No. 01) Exhibits M-Q.
Counsel for plaintiff details the numerous demands made upon defendant St. Francis with which it is alleged that defendant St. Francis failed to comply. See id.
Counsel for plaintiff argues that, "[i]n the present action, each and every demand made by plaintiff is material and necessary to her ability to prove the negligence of defendant in its treatment and care of Ms. Forrest. Each category of discovery pertains to policies and procedures that Ms. Forrest's treating medical staff were allegedly implementing; training they underwent prior to treating her; and, their assignment in the hospital during the time period she was admitted. If not pertaining to her treatment, then plaintiff's demands pertain to defendant's Record Retention Policy, billing procedures for the treatment they allegedly provided Ms. Forrest, or insurance coverage maintained at the time of her stay at SAINT FRANCIS HOSPITAL. Those demands are clearly material and necessary to the care and treatment of Ms. Forrest. As alleged above, defendant caused Ms. Forrest to develop pressure ulcers as a result ofthe failures of SAINT FRANCIS HOSPITAL's medical staff and personnel to properly institute measures to protect Ms. Forrest's skin from becoming damaged by pressure; and, failed to properly implement a care plan for preventing pressure ulcers and the healing of pressure ulcers after they developed. SAINT FRANCIS HOSPITAL employees, nurses, and doctors admitted to certain policies and procedures required by defendant to prevent against the type of injuries suffered by Ms. Forrest. Defendant's staff also testified as to training provided and utilized by them in preparing to treat a patient like Ms. Forrest who could suffer from pressure ulcers. SAINT FRANCIS HOSPITAL's staff have testified to orders given by doctors, notes taken by nurses, procedures performed to prevent against pressure ulcers, and tests conducted as to skin moisture. Yet, defendant has either refused or failed to provide plaintiff with material proof that its staff underwent training for injuries of this kind and actually conducted tests and procedures to prevent against Ms. Forrest's cause of death. When defendant has provided relevant information, it has failed to further supplement as promised or failed to provide a complete response as promised, citing no reason for doing so. Plaintiff's recent demands to depose defendant's Compliance Officer and Departmental Record Coordinator are relevant and necessary considering how many materials defendant failed to provide because they allegedly no longer exist." See Plaintiff's Affirmation in Support of Motion (Seq. No. 01) Exhibits H-K.
In opposition to the motion (Seq. No. 01) and in support of the cross-motion (Seq. No. 02), counsel for defendant St. Francis submits, in pertinent part, that, "[o]n or about May 23, 2017, your Affirmant's firm substituted as attorneys for St. Francis Hospital.... On June 27, 2017, plaintiff was directed to serve a copy of the conditional benefits letter from Medicare and authorizations, including insurance.... On August 28, 2017, St. Francis Hospital served responses to plaintiff's Combined Demands.... On September 29, 2017, St. Francis Hospital served aSupplemental Response to plaintiff's Combined Demands.... On October 3, 2017, a telephone conference was held with Judge Sher regarding plaintiff's objections to St. Francis Hospital's responses. All of the issues regarding the plaintiff's initial demands and St. Francis Hospital's responses were addressed. As a result, on November 17,...
