New York State Court of Claims

New York State Court of Claims

MCNEE v. THE STATE OF NEW YORK, #2001-027-567, Claim No. 102330, Motion No. M-63073


Discovery requests for medical malpractice action, specifically employment status.

Case Information

DON MCNEE, as Parent and Natural Guardian of KYLE ANDREW MCNEE, an infant, and DON MCNEE, Individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Gary A. Barbanel, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Toni E. Logue, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 5, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 and regulations.

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.

June 5, 2001
New York, New York

Judge of the Court of Claims