Torres v. Ashmawy

• Decision Date: 26 March 2009
• Docket Number: No. 5213/2003,5213/2003
• Citation: 24 Misc.3d 506,875 N.Y.S.2d 781,2009 NY Slip Op 29134
• Parties: SANDRA TORRES, Individually and as Mother and Natural Guardian of MARIO EMMANUAL SANTANA, an Infant, Plaintiff, v. YESSIN ASHMAWY, M.D., et al., Defendants.
• Court: New York Supreme Court

24 Misc.3d 506

875 N.Y.S.2d 781

2009 NY Slip Op 29134

SANDRA TORRES, Individually and as Mother and Natural Guardian of MARIO EMMANUAL SANTANA, an Infant, Plaintiff, v. YESSIN ASHMAWY, M.D., et al., Defendants.

No. 5213/2003

Supreme Court, Orange County.

Decided March 26, 2009.

Jonathan E. Symer, Poughkeepsie, for Paul S. Mayer, M.D., and another, defendants.

Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains, for Yessin Ashmawy, M.D., defendant.

Feldman, Kleidman & Coffey, LLP, Fishkill, for Prabhakar Kocherlakota, M.D., and another, defendants.

Jacob D. Fuchsberg Law Firm, LLP, New York City, for plaintiff.

OPINION OF THE COURT

LEWIS J. LUBELL, J.

This medical malpractice action is brought in connection with, among other things, personal injuries including brain damage, cerebral palsy, hemiparesis, blindness, and cognitive and developmental delays allegedly suffered by the infant plaintiff, Mario Emmanual Santana, during and directly after his birth.^*

Currently before the court is the motion in limine of Paul S. Mayer, M.D., as joined in by codefendant Yessin Ashmawy, M.D., for an order precluding the introduction at trial of evidence or references to the administrative proceedings, findings and/or determination of the New York State Board for Professional Medical Conduct with respect to Mayer and his subsequent conviction for attempted unauthorized practice of medicine. For the reasons herein stated, the court grants the motion except to the extent that Mayer may be cross-examined for impeachment purposes with respect to the Board's sustained specifications against Mayer for fraudulent practice (Education Law § 6530 [2]) and his conviction for attempted unauthorized practice of medicine, as is more fully set forth herein.

At all times relevant to the allegations underlying this action, including Sandra Torres' prenatal care and the ensuing delivery in October 1997, Mayer was a board certified obstetrician/ gynecologist licensed as a physician in the State of New York since July 1976. At the time of this incident, Mayer, codefendant Yessin Ashmawy, M.D., and nonparty nurse midwife Laura Cross were employed by Hudson Valley Obstetrics & Gynecology, P.C., a professional corporation owned by Mayer.

Plaintiff Sandra Torres, the infant's mother, contends that from August 1997 until the time of the infant's delivery in October 1997 she had been leaking amniotic fluid. During that interval and during the course of the delivery at defendant St. Luke's Hospital, Torres alleges to have been cared for by Paul S. Mayer, M.D. Torres claims that Mayer's failure to have diagnosed and treated the leakage of amniotic fluid resulted in the injuries sustained by the infant. Torres also claims that her labor and the delivery of the infant were mismanaged in that, among other things, a cesarean section should have been performed.

As set forth at item "2" of the plaintiffs' response to Mayer's demand for a bill of particulars, the allegations of alleged negligence as to Mayer and Hudson Valley concern the prenatal care of Torres from April 8, 1997 through October 15, 1997 and the ensuing labor and delivery of the infant in October 1997 at defendant St. Luke's Hospital. More particularly as set forth therein, plaintiffs claim that Mayer:

(1) failed to diagnose premature/prolonged rupture of the membranes during the plaintiff's prenatal visits;

(2) failed to treat oligohydramnios (inadequate amniotic fluid) caused by the premature/prolonged rupture of the membranes;

(3) failed to maintain proper medical records;

(4) failed to diagnose and treat fetal distress; and

(5) failed to perform a timely cesarean section.

In contrast to the position taken by plaintiffs with respect to Mayer's participation in the care and treatment of Torres and the infant, Mayer contends that all medical care pertinent to this matter during August 1997 had been provided by the midwife and, thereafter, solely by codefendant Ashmawy.

In anticipation of having to testify at trial to address, among other things, the material questions of fact as to whether and to what extent he was involved with the care and treatment of Torres and the delivery of the infant, Mayer brings this motion in connection with the September 15, 2000 determination of the Board to revoke his medical license following a five-day hearing conducted pursuant to the provisions of section 230 (10) of the Public Health Law and sections 301-307 and 401 of the State Administrative Procedure Act. In connection therewith, the Board received evidence concerning 15 "specifications" of Mayer's alleged violations of section 6530 of the Education Law concerning the medical care and treatment provided by Mayer to three of his patients, identified therein as patients "A," "B" and "C," during the period from 1995 through 1997, neither of whom were Torres or the infant. The hearing was conducted between April 12, 2000 and June 13, 2000.

The 15 specifications alleged gross negligence (Education Law § 6530 [4]), gross incompetence (Education Law § 6530 [6]), negligence (Education Law § 6530 [3]), incompetence (Education Law § 6530 [5]), failure to keep adequate patient records (Education Law § 6530 [32]), fraudulent practice (Education Law § 6530 [2]), conduct which evidences moral unfitness (Education Law § 6530 [20]), and the inappropriate delegation of professional responsibilities (Education Law § 6530 [25]).

The specifications included allegations that: on July 12, 1995, Mayer performed a hysterectomy without the benefit of a frozen section study intraoperatively (laboratory evaluation for the presence of cancer cells), thereby causing the sterility of the patient where subsequent pathology reports showed no cancer; and, on June 11, 1997, Mayer performed a voluntary termination of a pregnancy (abortion) of a fetus at the 26 to 28 week gestational age without having first clinically or diagnostically established the correct gestational age of the fetus, thereby resulting in an illegal abortion. With respect to the latter determination, the Board concluded that Mayer made false statements to other medical care providers about the source of the patient and the presence of fibroids.

Upon completion of the hearing, the Board "found numerous violations of accepted standards of medicine and each violation constituted either gross negligence or gross incompetence" such as to form the basis for the Board's revocation of Mayer's license (Matter of Mayer, 2000 WL 35364496 [2000]). Revocation was deemed appropriate even though the specifications relating to patient "C" were not sustained, "the most serious acts, those associated with patient `A', [had] happened 3 years [before their determination and those] acts associated with Patient `B' [had taken] place 5 years [before their determination]" (id.). The Board further justified license revocation by noting, "Not only did Respondent practice grossly substandard medicine, he lied about it then and he continues to lie about it today" (Id.) In that regard, the Board further found:

"[Mayer] refuses to admit he lied to the hospital staff about the referral of Patient A and the alleged performance of the non-existing sonogram. The Committee could be more lenient with a practitioner who, in the heat of catastrophe, makes representations that are false. Yet Respondent continues to defend the indefensible." (Matter of Mayer, supra.)

The revocation of Mayer's medical license was temporarily stayed pending his appeal of the Board's determination to the Appellate Division, Third Department. The stay was subsequently vacated, and then reinstated. By decision dated November 29, 2001, the Appellate Division, Third Department, reversed and annulled the Board's determination (see Matter of Mayer v Novello, 288 AD2d 780 [3d Dept 2001] [determination annulled due to improperly constituted hearing committee; remitted for a new hearing before a properly constituted one]) and remitted the matter for a de novo hearing. Following an appeal of the Appellate Division determination, the Court of Appeals reversed and remitted the action to the Appellate Division to consider the balance of the issues initially raised on appeal (Matter of Mayer v Novello, 99 NY2d 180 [2002]). By decision dated March 27, 2003, the Appellate Division confirmed the Board's determination revoking Mayer's medical license (Matter of Mayer v. Novello, 303 AD2d 909 [3d Dept 2003]).

In the meantime, on February 12, 2002, Mayer was indicted and charged with the unauthorized practice of medicine in violation of section 6512 (1) of the Education Law, a class E nonviolent felony. More specifically, Mayer was charged with having practiced medicine without a license from November 24 to December 1, 2000 and on April 12, 2001 and June 9, 2001 while his license had been revoked. The asserted periods followed Mayer's license revocation, the stay of the revocation, but then the reinstatement of the license revocation pending the Appellate Division's determination of the appeal.

The County Court of the County of Orange (DeRosa, J.) dismissed the indictment upon its finding that Mayer had not received adequate notice that the stay had been lifted. The Appellate Division, Second Department, reversed the determination and reinstated the indictment finding that the evidence before the grand jury was sufficient to sustain the charge (People v Mayer, 1 AD3d 461 [2003]). Thereafter, in April 2004, Mayer entered a plea of guilty to one count of attempted unauthorized practice of medicine in violation of Penal Law § 110.00 and section 6512 of the Education Law, an unclassified misdemeanor, putting to rest any notice issues that Mayer could have raised at trial.

"A general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion" (Matter of...