The following papers were reviewed by the Court on this motion: Claimants'
Notice of Motion, Claimants' Affirmation in Support and annexed documents,
Claimants' Reply, Defendant's Affirmation in Opposition and annexed Exhibits
A-D and Filed Claim.
Claimants, Don McNee, as p/n/g of Kyle Andrew McNee, an infant, and Don McNee,
individually, have filed this motion seeking an order from the Court to compel
discovery from defendant, the State of New York.
The underlying action in this matter concerns, inter alia, the medical
and surgical treatment rendered to claimant, Kyle Andrew McNee, by defendant,
between November 11, 1999 and February 2, 2000. Specifically, the claim is for
medical malpractice due to improper treatment given to the claimant, Kyle Andrew
McNee, a four week old infant, who underwent cardiac surgery and sustained
injuries to his left leg which subsequently required amputation of the leg.
On June 18, 2000, claimants served a Notice for Discovery and Inspection upon
defendant. On July 10, 2000, defendant served its response to claimants' Notice
for Discovery and Inspection.
On July 18, 2000, claimants served a Notice to Admit and on August 8, 2000
defendant responded. The major issue in dispute in this Notice to Admit is the
employment status of certain physicians. Defendant asserts that the employment
status of these physicians is a legal conclusion and not a factual one.
It is long settled that the purpose of a Notice to Admit is not to obtain
information in lieu of other disclosure devices but only to eliminate from the
issues matters which will not really be in dispute at the trial. Felice v
St. Agnes Hospital, 65 AD2d 388 (2nd Dept. 1978). At this juncture in the
action it cannot be conclusively presumed that evidence will be adduced either
during an examination before trial, or at the trial, or at both that any of the
physicians in question were under the control and direction of the defendant at
the time of the occurrence. Id at 395. Whether a person is an employee or
an independent contractor is an ultimate fact to be determined from the evidence
itself. Bermudez v Ruiz, 185 AD2d 212 (1st Dept. 1992). Defendant is
well within its rights to admit to certain physicians as being their employees
and in the same case to dispute the issue with regard to other physicians.
Claimants point out the practice of the City of New York and the position it
takes in the various courthouses of the New York State Supreme Court. This
Court is certainly aware of this practice however it has no bearing on the
defendant's position in this action since the municipalities are separate
entities and evidently have different relationships with certain physicians.
Finally, for the purposes of discovery production matters only, the Court
views defendant's position as being tantamount to an assertion that the
physicians in question are not its employees. Any other position would result
in leaving the discovery process in an untenable standstill.
Claimants also served two separate Notices of Discovery on January 16, 2001
which defendant responded to on February 5, 2001. Claimants have requested
various contracts in their June 18, 2000 discovery request and allege that
defendant has not responded to paragraph two of that request. Defendant has
supplied a copy of an Affidavit from Dennis Mitchell, the Chief Financial
Officer at University Hospital at Stony Brook which was sent to claimants
allegedly on February 5, 2001 in response to claimants' request. In it he states
that there were no contracts executed relative to the provision of medical
services between University Hospital at Stony Brook and Stony Brook Surgical
Associated, P.C. in effect during the academic year 1999-2000. In response to
this Affidavit claimants are requesting an EBT of Dennis Mitchell or Arthur
Amman. It would seem appropriate that further discovery on this matter be
conducted and that the defendant be required to produce a person with knowledge
of the contractual status between the two entities to the extent one exists.
Claimants have also requested certain hospital rules and regulations in their
June 18, 2000 discovery request and their February 13, 2001 request. Defendant
has responded by submitting an Affidavit of Irvin Krukenkamp, the Chief of the
Division of Cardiothoracic Surgery in the Department of Surgery of University
Hospital at Stony Brook. In it he states that there are no rules, regulations,
procedures, manuals that are specific or unique to University Hospital at Stony
Brook in effect in 1999 in the Department of Surgery at University Hospital at
Stony Brook regarding the specific procedures outlined by claimants in their
discovery request .
There also seems to have been a prior response from defendant that these rules
have been updated and that they are not in possession of a copy of the rules in
effect at the time of this incident. Claimants are requesting that the Court
issue an order directing the defendant to produce the updated 2000 rules and
regulations as well as a deposition of a witness from the Department of Surgery,
presumably to testify as to the changes in the rules and regulations.
Obviously, the issue of whether or not there were rules and regulations is
muddled at best. Therefore, a deposition of a witness with knowledge regarding
the existence of any rules and regulations is appropriate. Additionally,
defendant is directed to produce, to the extent they exist, a copy of the 1999
rules and regulations or if they do not exist a copy of the updated 2000 rules
Additionally, claimants are seeking information regarding previous similar
surgeries performed at the hospital where the subject operation took place.
Defendant has provided the statistics regarding the number of surgeries
performed. Claimants are seeking further disclosure with regard to these
operations and are specifically requesting the names of the surgeons who
performed them as well as the complication rate. The Court is not inclined at
this time to order the disclosure of this seemingly non-relevant material.
Claimants seem to suggest that an incomplete operating room log for November
12, 1999 was produced by defendant. Specifically, claimants assert that five
items from this log have been omitted, including one entry which directly
corresponds to this case. It appears that claimants are correct in their
assertion and that the OR log was reproduced with a "post it" covering several
entries listed on the log. Since this is the second time it has been produced
in an incomplete manner the Court hereby directs defendant to produce the
original at the next scheduled court conference or produce a witness with
knowledge for a deposition.
All discovery responses by both parties must be completed in good faith and as
long as both sides have complied to the best of their abilities and in good
faith then their obligations to the Court and each other are fulfilled.
However, if at some point in the litigation process it becomes evident to the
Court that one party or the other has not acted in good faith then the Court
reserves its right to take whatever remedial measures it deems appropriate to
rectify the situation if it arises.
Therefore, for the foregoing reasons, claimants' motion to compel discovery is
granted in part and denied in part to the extent stated herein.