State v. David A. Brogno, M.D., Alfred Becker, M.D., Albert H. Zucker, M.D., Richard L. Roth, M.D. Seymour H. Lutwak, M.D., Hudson Heart Assocs., PC
| Decision Date | 22 October 2013 |
| Docket Number | Index No. 2907/2012 |
| Citation | 2013 NY Slip Op 33890 (U) |
| Parties | SUPREME COURT : STATE OF NEW YORK COUNTY OF ORANGE EMANUEL PALACINO, as Administrator of the Goods, Chattels and Credits which were of ETHEL PALACINO, Deceased and EMANUEL PALACINO, Individually, Plaintiffs, v. DAVID A. BROGNO, M.D., ALFRED BECKER, M.D., ALBERT H. ZUCKER, M.D., RICHARD L. ROTH, M.D. SEYMOUR H. LUTWAK, M.D., HUDSON HEART ASSOCIATES, PC and GOOD SAMARITAN HOSPITAL, Defendants. |
| Court | New York Supreme Court |
Present: HON. CATHERINE M. BARTLETT, A.J.S.C.
To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry,
The following papers numbered 1 to 5 were read on plaintiffs' motion to compel discovery pursuant to CPLR §3124, to wit, a further deposition of the defendant Richard L. Roth, M.D. to answer certain questions objected to by Dr. Roth's counsel:
| Notice of Motion-Affirmation in Support- Exhibits |
| 1-3 |
| Affirmation in Opposition-Exhibits |
| 4-5 |
Upon the foregoing papers, it is ORDERED that the motion is disposed of as follows:
This is a case grounded in medical malpractice which was alleged to have occurred from May 19-27, 2010 while plaintiff's decedent was confined to defendant Good Samaritan Hospital. Plaintiff's decedent was a patient of defendant Brogno of defendant Hudson Heart Associates,PC, but was admitted to the hospital on defendant Zucker's service.1 During her hospitalization, Dr. Zucker called a cardiac consultation which was covered by defendant Lutwak, who was also not a member of defendant Hudson Heart Associates, PC. Plaintiff's decedent eventually became a patient of Hudson Heart Associates, PC and a consultation request of said defendant was made. On May, 19, 2010, the day of plaintiff's decedent's admission, defendant Roth was also called for a consultation with plaintiff's decedent and after examination, ordered a transthoracic echocardiogram (TTE) which is designed to externally examine the heart's function without the need for an internally invasive test. After placing the order for the TTE on May 19, 2010, defendant Roth had no further contact with plaintiff's decedent and rendered no further care.
On May 20, 2010, defendant Brogno consulted with the patient and the TTE which had previously been ordered by Dr. Roth had not yet been completed, but was done later on May 20, 2010. After the TTE was performed, it was interpreted by a non-party physician, Dr. Schair, who again is not a member of Hudson Heart Associates, PC. At Dr. Roth's deposition, he was asked two questions to which defendants' counsel objected and refused to permit Dr. Roth to answer. First, Dr. Roth was asked whether he disagreed with any of Dr. Schair's conclusions contained in his report which test, interpretation and report was not performed nor available at the time of Dr. Roth's treatment of plaintiff's decedent.
Shortly thereafter, Dr. Roth was asked why he did not order a transesophageal echocardiogram, or TEE, of plaintiff's decedent to which he answered that such a test was more invasive involving the insertion of a tube down a patient's esophagus and examination of the patient's heart. Dr. Roth explained that the TEE was not ordered due to its more invasivecharacter over the TTE. Plaintiff's counsel inquired of Dr. Roth whether after reading Dr. Schair's report, he would have preferred a TEE over a TTE at the time of his evaluation to which defendant's counsel objected. Thereafter, plaintiff's counsel asked Dr. Roth whether he had an opinion to a reasonable degree of medical certainty whether plaintiff's decedent required a TEE after the May 20, 2010 TTE was performed, despite the fact that Dr. Roth had never seen the patient after the May 19, 2010 consultation. Defendants' counsel refused to permit Dr. Roth to answer such a question. Plaintiffs now seek to compel answers to both of those questions, citing the rules of discovery and the conduct of attorneys at depositions.
CPLR §3101 (a) states in pertinent part: "There shall be full disclosure of all mater material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party; . . ." In interpreting this statute, the Court of Appeals stated unequivocally in Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406-407 (1968), that:
the words "material and necessary", are, in our view, to 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. CPLR 3101 (subd.(a)) should be construed, as the leading text on practice puts it, to permit discovery of testimony "which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3101.07, p.31-13)". See, Hoenig v Westphal, 52 NY2d 605, 608 (1981).
Moreover, the Allen Court held that " 'The purpose of disclosure procedures . . . is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits' and, . . . '(i)f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered 'evidence material * * * in theprosecution or defense' [citation omitted]." Allen, 21 NY2d at 407.
As stated in American Reliance Insurance Co. v. National General Insurance Co., 174 A.D.2d 591, 571 N.Y.S.2d 493 (2nd Dept. 1991), ". . . the proper procedure to be followed in order to compel a further deposition of a witness is to indicate to the court precisely which questions were not answered, that the witness's refusal to answer was improper, and that a further deposition is the appropriate remedy." Plaintiffs have followed that mandate which leads the Court to analyze and determine the propriety of plaintiff's request.
In Freedco Products, Inc. v New York Telephone Co., 47 AD2d 654, 655 (2nd Dept. 1975), the Court held that ". . . in an examination before trial unless a question is clearly violative of the witness's constitutional rights, or of some privilege recognized in law or is palpably irrelevant, questions should be freely permitted ans answered, since all objections other than as to form are preserved for the trial and may be raised at that time." See, Watson v State, 53 AD2d 798, 799 (3rd Dept. 1976).
In Ferraro v New York Telephone Co., 94 AD2d 784, 785 (2nd Dept. 1983), the Court held that the defendant attempted to obscure the discovery of facts and obstruct and frustrate the discovery process not only by providing employees with no knowledge of the facts but also by instructing one of its employees not to answer certain questions "despite the fact that his objections did not relate to the form of the questions (see, Spatz v. Wide World Travel Serv., 70 A.D.2d 835, 418 N.Y.S.2d 19), and the questions were neither palpably irrelevant nor violative of some legal privilege or constitutional right [cit. om.]." The Court in Spatz v World Travel Service, Inc., 70 AD2d 835, 836 (1st Dept. 1979) went even further to declare that "counsel is without authority to direct a witness to refuse to answer questions at an examination before trial."
As articulated in Murphy v New York Central Railroad Co., 16 Misc2d 249, 251 (Sup. Ct. Erie Co. 1959), "Considerable latitude should be given in examining before trial an adverse party or its employee for it is in the nature of a cross-examination to elicit the truth and shorten the trial . . . Where a question call for matter clearly relevant it should be answered; only objections for incompetency, inadmissibility and immateriality must be reserved for the trial itself, where the defendants' rights shall be preserved [cit. om.]." Moreover, the Court held that since the parties stipulated that all objections except as to form are reserved for the time of trial, it is for the trial court to make the determinations of the admissibility of the statements and the witness was required to answer the questions posed. See, Id. at 252.
N.Y.Ct.Rules, § 221.2 states:
A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition.
Judge Mark Dillon, in an article entitled, noted only five exceptions to prohibiting inquiry into discovery materials or topics during a deposition, none of which are applicable to the instant case. Judge Dillon stated:
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