New York State Court of Claims

New York State Court of Claims

LANGLEY v. STATE OF NEW YORK, #2004-018-309, Claim No. NONE, Motion No. M-68087


Synopsis


Case Information

UID:
2004-018-309
Claimant(s):
SALLY LANGLEY The Court has amended the caption, sua sponte, to reflect the State of New York as the only proper defendant.
Claimant short name:
LANGLEY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption, sua sponte, to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68087
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
GREEN & SEIFTER ATTORNEYS PLLCBy: Harrison V. Williams, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Patricia M. Bordonaro, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant, Sally Langley, seeks pre-action disclosure pursuant to CPLR 3102(c). That

section permits such disclosure only by court order to aid in bringing the action, to preserve information, or to aid in arbitration. Prior to the filing of this motion, movant served a timely Amended Notice of Intention to file a claim in accordance with Court of Claims Act §§ 10 and 11 on January 12, 2004, thereby extending her time to file a claim against the State for two years from the date of accrual (Court of Claims Act § 10[3]).

The Amended Notice of Intention alleges that movant was diagnosed with Atrial Fibrillation, and as part of her treatment, she underwent certain procedures at State University of New York Upstate Medical University (University Hospital) on October 18, 2003. One of those procedures was a catheterization ablation which requires the use of an imaging fluoroscope or x-ray machine. During this procedure, movant's upper body was exposed to radiation. Some time thereafter, movant developed a rash on her upper body which she states was "diagnosed as a radiation burn."[1] She alleges additional injuries as a result of her treating physician's negligence. The Amended Notice of Intention also alleges negligence in the "operation, control, maintenance and/or ownership of the x-ray machine."[2]

Prior to bringing this motion, movant's attorneys and the Attorney General's Office agreed to have an expert inspect the fluoroscope. On January 16, 2004, the bi-plane fluoroscope machine was made available for photographing and inspecting, but not testing. Because of a misunderstanding between the parties regarding the extent of the stipulated inspection,[3] the event was terminated, and this motion resulted. Movant has been advised by someone in Risk Management at University Hospital, that the fluoroscope will be dismantled on June 4, 2004. This date was extended to July 1, 2004, after defendant requested an adjournment of the motion.

During oral argument, the Court requested that defendant provide additional information regarding the status of the fluoroscope machine, specifically, when it will be removed from service, and what will be done with the machine at that time. In response to the Court's request, defendant's counsel submitted a letter, with a copy to movant's counsel, dated June 4, 2004. The letter included pictures of the bi-plane fluoroscope machine and confirms that the fluoroscope will be dismantled, and that the date for the dismantling has been delayed, but no specific time frame was provided. The letter further reiterates that it is the State's position no testing of the equipment should be permitted, but if the Court is inclined to allow testing, the request is made that it be done in the presence of a State employee, before the equipment is dismantled but after its use for patient care is completed.

By this motion, movant requests an opportunity, not only to inspect, but to test the machine for defects. In addition, she is asking that the State produce the following documentation:

(b) provide all documentation and/or records relating to any

repairs, maintenance and/or modifications performed on

the fluoroscope;


(c) provide all quality control records relating to the fluoroscope;


(d) provide all communications between Upstate Medical University

and Fisher Imaging Corporation, including all problem reports;


(e) provide all documentation relating to any hardware and software

updates and modifications to the fluoroscope;


(f) provide all incident reports to the Food and Drug Administration

and New York State Department of Health;


(g) provide the Fisher Operator and User Manuals for the fluoroscope;


(h) provide all documentation and/or medical records, including but

not limited to, all still and moving images, operative reports,

anesthesia records, nursing notes and discharge summaries

obtained during the October 17, 2003, Catherization [sic] Ablation

procedure performed on Ms. Langley;


(i) provide all documentation and/or medical records that memorialize

the fluoroscope exposures received by Ms. Langley on October

17, 2003;


(j) provide the names of all hospital personnel involved with Ms.

Langley's care during her hospitalization;


(k) provide all documentation and/or records relating to the evidence

of competency of all hospital personnel involved with Ms.

Langley's care during her hospitalization;


(l) provide all documentation and/or records relating to any

previous or subsequent incidents involving the fluoroscope used

to perform the Catherization [sic] Ablation procedure on Ms.

Langley;


(m) provide all documentation and/or records relating to any recall,

safety and hazard alerts or advisories and any product

modification notices issued by the manufacturer of the

fluoroscope, Food and Drug Administration and/or the New

York State Department of Health; and


(n) provide all film badge records of all hospital staff who

participated in the treatment and care of Ms. Langley in the

EP laboratory.


The State opposes these requests.


Movant's stated purpose in seeking the relief requested is that "[t]he desired information is material and necessary to the proper preparation of a Complaint, to the preservation of key evidence, and to the identity of the responsible parties."[4]

The State responds that movant wishes to use the desired information to "ascertain whether facts supporting the cause of action against Defendant actually exist."[5]

Case law holds that pre-action discovery may not be used as a means of getting information to determine whether a cause of action against defendant exists; as a result, a petitioner seeking pre-action disclosure must first demonstrate the existence of a prima facie case (Ero v Graystone Materials, Inc., 252 AD2d 812; Barash v Waldorf-Astoria, 2003 WL 1793065; Matter of Hughes v Witco Corp.-Chemprene Div. 175 AD2d 486; Nicol v Town of Rotterdam, 134 AD2d 754). This requirement has also been described as stating a meritorious cause of action (Holzman v Manhattan & Bronx Surface Transit Operating Auth., 271 AD2d 346; Stump v 209 East 56th Street Corp., 212 AD2d 410; Stewart v NYC Transit Auth., 112 AD2d 939; In re Payton Lane Properties, Inc., 1998 WL 1083651). However, some courts have modified this requirement based upon the circumstances. In the Matter of Taylor, 143 Misc 2d 259, the Court granted petitioner her pre-action request for disclosure of her medical records, which she needed to identify the proper defendants in a potential medical malpractice case. Only an attorney's affirmation was submitted in support of the petitioner; no affidavit of merit was submitted. The respondent hospitals failed to appear. Since an affidavit of merit would be impossible to obtain without an expert physician reviewing the petitioner's medical records, and because petitioner is entitled to them pursuant to statute, (see, Public Health Law §18[2][a]), the Court granted the petition.

Similarly, in the Matter of Davis, 178 Misc 2d 65, the petitioner sought to preserve his own testimony prior to instituting an action in the Court of Claims. Petitioner had terminal cancer and contemplated instituting an action which arose from his medical treatment in prison. Judge John P. Lane distinguished the cases seeking discovery to aid in bringing an action from those seeking to preserve information. When seeking to preserve testimony, "there is no requirement that the existence of a cause of action be demonstrated with the certainty required when the application is intended to assist in framing a complaint or in identifying defendants"

(id. at 66).

The Courts have held that the reason for requiring a showing of a meritorious cause of action is "to prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party" (Houlihan-Parnes, Realtors v Cantor, Fitzgerald & Co., 58 AD2d 629, 630; cf. Stewart v New York City Transit Auth., 112 AD2d 939; Barash v Waldorf-Astoria, 2003 WL 1793065). The rule also prevents a potential plaintiff or claimant from using 3102(c) to ascertain whether facts exist which would support a cause of action.

When determining whether or not petitioner has established a prima facie case, the evidence and inferences stemming therefrom must be considered in the light most favorable to the petitioner (see Ero v Graystone Materials 252 AD2d 812).

In light of the case law, specifically Matter of Davis, supra, and the underlying reasoning for requiring a prima facie case, the Court finds sufficient evidence to show that movant has a meritorious cause of action[6] for pre-action discovery sought to preserve evidence[7](cf. Toal v Staten Island Univ. Hosp., 300 AD2d 592; Stanco v Steinberg, 254 AD2d 363; O'Grady v City of New York, 164 Misc 2d 171). The inspection and testing of this fluoroscope machine is material and necessary to the action based upon movant's allegations in the Amended Notice of Intention.

Accordingly, based upon the foregoing, the Court grants movant's motion in part to the extent and conditioned upon the following:

1. Movant may photograph and inspect the subject bi-plane

fluoroscope machine prior to it being dismantled at a mutually

agreed upon time; and


2. Movant may test the operation of the bi-plane fluoroscope

machine prior to it being dismantled at a mutually agreed upon time

in the presence of designated hospital personnel, at a time when

the machine is no longer being used for patient care and treatment;

and


3. Defendant is to advise movant's counsel, in writing, of the date

when the bi-plane fluoroscope machine will be dismantled, the

date on which the bi-plane fluoroscope machine will no longer be used

for patient care and treatment and shall also provide some available

dates for movant's inspection and testing; and


4. Defendant shall not remove or dismantle the bi-plane

fluoroscope machine until movant has been given a reasonable

opportunity to photograph, inspect and test the operation of the machine;

and


5. Movant shall be provided with the documents requested in

paragraphs 9(b), (c), (d), (e), (g), and (m) on pages 3 - 4 of movant's affidavit,

prior to the inspection and testing of the bi-plane fluoroscope machine.


Movant's remaining requests are DENIED.


June 10, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



The Court has considered the following documents in deciding this motion:


Notice of Motion................................................................................................1


Affidavit of Sally Langley, in support with exhibits attached thereto................2


Affidavit of Harrison V. Williams, Esquire, in support, with exhibits

attached thereto.......................................................................................3


Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney

General, in opposition, with exhibits attached thereto............................4


Letter from Patricia M. Bordonaro, Esquire, Assistant Attorney

General, with attachments dated June 4, 2004........................................5


[1]Movant's supporting affidavit, paragraph 4.
[2]Notice of Intention, paragraph 11.
[3]Movant's representatives wanted to test the machine, defendant did not allow it for various reasons.
[4]Supporting affidavit of Harrison V. Williams, Esquire, paragraph 20.
[5] Defendant's Memorandum of Law in Opposition, page 4.
[6]Submitting an expert affirmation, with the motion papers, would have been the better practice to establish a prima facie case of medical malpractice.
[7]In reaching this determination, the Court also relied upon defendant's Exhibit B, viewed in a light most favorable to movant, which does not rule out a radiation reaction.