New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2008-030-566, Claim No. 103848, Motion Nos. M-75480, M-75485


Synopsis


Cross motions to compel disclosure granted in part and denied in part. Wrongful death claim involving alleged medical malpractice by Stony Brook Hospital

Case Information

UID:
2008-030-566
Claimant(s):
SHIRLEY JACKSON, as Administratrix of the Estate of CARL JACKSON, deceased; and SHIRLEY JACKSON, Individually
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
JACKSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103848
Motion number(s):
M-75480, M-75485
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
HARRIET A. GILLIAM, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DANIEL CHU, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 20, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimants’ motion to compel discovery [M-75480], and on defendant’s motion to compel a “proper response” to its demand for a supplemental bill of particulars [M-75485]:
1,2 Notice of Motion [M-75480]; Affirmation in Support by Harriet A. Gilliam, Attorney for claimants, and attached exhibits

  1. Affirmation in Opposition by Daniel Chu, Assistant Attorney General and attached exhibits
  1. Reply Affirmation by Harriet A. Gilliam, Attorney for Claimants
5,6 Notice of Motion [M-75485]; Affirmation in Support by Daniel Chu, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition by Harriet A. Gilliam, Attorney for Claimant, and attached exhibits
  1. Reply Affirmation by Daniel Chu, Assistant Attorney General
9-11 Filed papers: claim, answer, amended answer
Background

This is a claim alleging that defendant’s agents, through the failure to provide adequate and timely care, negligently caused the conscious pain and suffering and wrongful death of Carl Jackson. Mr. Jackson was treated at the defendant’s hospital from February 10, 1999 through February 23, 1999, the date of his death. Mr. Jackson had been suffering from end stage renal disease, and was evaluated for and underwent “elective living related donor kidney transplant surgery” [see Affirmation in Support of Motion [M-75480] by Harriet A. Gilliam, Exhibit H] at Stony Brook University Hospital. Notably, in a related action brought in Suffolk County Supreme Court, the lawsuit against the named physicians was dismissed on application for summary judgment on March 13, 2007. [Ibid.]. The Supreme Court indicated that the record did not supply “the requisite nexus between the malpractice allegedly committed by defendants . . . and the demise of the patient.” [Ibid.].

With regard to the present claim, defendant was permitted to amend its answer to include a collateral estoppel defense, and moved for dismissal of the claim in its entirety. The motion to dismiss was granted to the extent that
“claimants are precluded from litigating the issue of whether any of the acts or omissions of the seven physicians[2] named as defendants in the prior Supreme Court Action were the proximate case of decedent’s death. However, the claim survives defendant’s motion to dismiss to the extent that claimants seek relief related to the acts or omissions by any other ‘agents, servants and/or employees’ of Stony Brook Hospital alleged by claimants in their bill of particulars to be the proximate cause of decedent’s death.” [Jackson v State of New York, UID # 2007-039-041, Claim No. 103848, Motion No. M-73197 (Ferreira, J., September 5, 2007)].


In an Order executed by Judge Hard - assigned the claim thereafter - memorializing discussions concerning remaining discovery in a telephone conference, both counsel were directed to exchange remaining demands - including a demand for a supplemental bill of particulars and any response thereto - and if dissatisfied with any responses were directed to make the appropriate motion within a certain time period now passed. [Affirmation in Support of Motion [M-75480] by Harriet A. Gilliam, Exhibit J].

Defendant’s demand for a supplemental bill of particulars was served in or about February 2008, and claimant’s supplemental bill of particulars was served as well, together with Claimant’s combined demands, in or about April 2008. [Affirmation in Support of Motion [M-75480] by Harriet A. Gilliam, Exhibits K, L, M]. Thereafter, correspondence alluding to the respective discourtesies of both counsel was apparently exchanged, [ibid. Exhibits N, O], and, upon transfer of the claim to the undersigned, such correspondence continued, and counsel were directed to frame the issues that remained in an appropriate motion or waive them in light of such breakdown in consent disclosure [see 22 NYCRR §206.8(b) and Daily Report issued July 14, 2008].

Civil Practice Law and Rules §3101, setting forth the scope of disclosure in a civil case and applicable in the Court of Claims [see Court of Claims Act §9(9)], provides in pertinent part that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . . ”

When a party fails to respond in some fashion to a demand, the other party may make a motion to compel such as these. Civil Practice Law and Rules §§3124, 3126. Notably, disclosure demands and responses, and demands for bills of particulars and responses thereto - which are by nature documents served on another party - are required to be filed with the Chief Clerk of the Court of Claims. See 22 NYCRR §206.5(c).

The causes of action remaining in the claim itself stem from alleged acts or omissions of defendant’s “agents, servants and/or employees” in proximately causing the death of Carl Jackson. Such individuals would include nurses, nurses aides, or other hospital staff - essentially any individuals whose status might render the State liable - except for the seven physicians named in the companion lawsuit. More specifically, in paragraph 13 of the claim it is alleged that
“the defendants were negligent and careless in the treatment and care of decedent Carl Jackson in that: (a) the employees, agents and servants of Stony Brook University Hospital failed to use reasonable and proper care in the treatment of decedent Carl Jackson; (b) . . . failed to recognize the effects of renal arterial anastomosis or the significance of the clear and unequivocal clinical signs of renal arterial anastomosis; (c) . . . failed to obtain or to make adequate efforts to obtain for Carl Jackson the services of a physician when it was evident or should have been evident that the condition of Carl Jackson required prompt if not immediate attention of a physician;(d) . . . permitted Carl Jackson to hemorrhage for a period of twenty-four hours or more; (e) . . . failed to diagnose and treat dehisence of renal arterial anastomosis in that . . . agents . . . failed to diagnose and treat left lower quadrant hemorrhage; and (f) . . . were otherwise negligent and careless in the treatment and care of decedent Carl Jackson.” [See Claim No.103848, ¶13].


No bill of particulars was filed by claimants in the office of the chief clerk as required [see 22 NYCRR §206.5(c)], although a bill of particulars was apparently served on defendant in August 2001, and a supplemental bill of particulars was served on or about April 7, 2008 as noted above.
Defendant’s Motion to Compel [M-75485]
Defendant seeks an order pursuant to Civil Practice Law and Rules §3042(c) compelling “proper responses to the defendant’s demand for a supplemental verified bill of particulars, dated February 8, 2008.” [Affirmation in Support [M-75485] by Daniel Chu, Assistant Attorney General, ¶ 2, Exhibit C]. The demand for the supplemental bill asks that claimants set forth “the following details or in lieu thereof, a statement that the claimant(s) have no knowledge or information concerning them:
1. Identify specifically which of the nurses, nurses aides and other hospital staff allegedly committed departures which proximately caused the death of Carl Jackson; and
2. Identify the departures allegedly committed by each such nurse, nurses aide and other hospital staff; and
3. Identify the ways in which each such departure allegedly proximately caused Carl Jackson’s death and other injuries claimed . . .” [Id.].


In response to the demand, claimants wrote, “upon information and belief:
1. The nurses, nurses aides and other hospital staff who committed departures which proximately caused the death of Carl Jackson, are all said persons who provided care or medical treatment to the decedent between February 10, 1999 and February 23, 1999.
2. . . . the defendants’ nurses, nurses aides and other hospital staff were negligent in failing to properly assess and treat the decedent’s condition; in failing to render proper care and treatment to the [decedent]; in failing to timely heed, recognize and take cognizance of and treat conditions, signs, complaints and complications of the decedent; and failing to exercise due and reasonable care.
3. Improper demand.” [Ibid. Exhibit D].


The defendant argues that the foregoing response is inadequate, and that “it is entitled to particulars concerning the identity of the hospital personnel who allegedly committed the departures and the nature of the departures allegedly committed by each person.” [Ibid. ¶11]. This court would tend to agree [see Gannotta v Long Island College Hosp.,92 AD2d 930 (2d Dept 1983); Batson v La Guardia Hosp,194 AD2d 705, 706 (2d Dept 1993)] - especially since claimants have not set forth in the bill that they are unaware of the names of any personnel or the actions or inactions that may have been causally linked to Mr. Jackson’s suffering and death - except for the fact that claimants are simultaneously seeking names and addresses of witnesses in their own motion to compel addressed below.

Clearly, claimants’ first two responses are “. . . overly broad and factually vague . . . [and fail] to particularize and amplify the pleadings, and will not limit the proof or prevent surprise at trial . . . (citations omitted).” Castellano v Norwegian Christian Home and Health Center, Inc., 24 AD3d 490, 491 (2d Dept 2005); see generally Civil Practice Law and Rules §§3041, 3042, 3043. Given the present posture of this litigation, where the acts or omissions of the physicians are excluded from consideration, claimant has not articulated how any acts or omissions of other agents - even if those individuals names are not apparent to them - were negligent, and caused the conscious pain and suffering and death of Carl Jackson. Since discovery was continued concurrently with the Supreme Court action, claimant apparently has medical records, prior depositions, as well as access to its own expert, presumably, to articulate which actors did what and when, yet only vague assertions of misfeasance are set forth. See Gannotta v Long Island College Hosp., 92 AD2d 930 (2d Dept 1983).[3]

By the same token, assuming that such medical records have been appropriately reviewed, how claimants are to decipher the names of nurses or other personnel making entries in records - usually in long hand - in order to add more specificity brings in issues noted in claimant’s own motion to compel, addressed below.

Finally, the court disagrees that the third request that claimant set forth its basis for how each departure proximately caused Mr. Jackson’s death and other injuries is improper as argued by claimant, in that it requires interpretation of evidentiary material and legal conclusions, not contemplated by a bill of particulars. Graves v County of Albany, 278 AD2d 578 (3d Dept 2000).[4] Claimant has not provided even a “general explanation of causation” [see id.] to satisfy the demand.
Claimant’s Motion to Compel [M-75480]
Claimants’ motion is first addressed to defendant’s alleged failure to respond to a Demand for Discovery and Inspection served on or about June 22, 2001, requesting copies of hospital protocols for the provision of various services in effect in “February 1999 to the present

. . .” [see Affirmation in support of Motion by Harriet A. Gilliam, Attorney for Claimants, Exhibit E]. Although such request was clearly overbroad in demanding such material “to the present”, a response to such demand was served on or about July 5, 2001 indicating that such protocols, if available, would be furnished as soon as possible. [Ibid. Exhibit F]. An additional response dated January 17, 2002 indicates that there are no such written protocols for the six requests made by claimant. [Affirmation in Opposition to Claimant’s Motion to Compel Disclosure by Daniel Chu, Assistant Attorney General, Exhibit A].

Certainly, if it should be discovered that there were indeed protocols extant at the time of the accrual of this claim, defendant’s counsel, as an officer of the court, would be required to furnish same pursuant to the continuing discovery demand. Moreover, if there were protocols in effect in February 1999 that have not been furnished then the failure to furnish copies of same to claimants would require some evidentiary inferences at trial. Claimant’s attorney’s reply to the defendant’s responses to the present motion argues only very generally that “New York State Public Health Law and Regulations” require hospitals “to have written By-laws and procedures regarding the care and treatment of patients”, without citing any statutory or regulatory authority. [See Reply Affirmation by Harriet A. Gilliam, Attorney for Claimant, ¶4].

Claimants served additional combined demands on April 7, 2008. [Affirmation in Support of Motion by Harriet A. Gilliam, Attorney for Claimants, Exhibit M]. The demand repeats (in part) the requests for copies of the hospital protocols requested in June 2001, and also includes a demand for names and addresses of witnesses, and an additional notice of discovery and inspection. [Iid.].

As to the names and addresses of witnesses, defendant objects saying “the defendant is unaware of any witnesses other than names of individuals mentioned in prior depositions or the hospital chart.” [Affirmation in Opposition to Claimant’s Motion to Compel Disclosure by Daniel Chu, Assistant Attorney General,¶4]. Defendant also more specifically objects to the requests for “(b) the housekeeping and cleaning conducted in decedent’s room on February 23, 1999” and “(c) housekeeping staff who provided services to the decedent on February 23, 1999” arguing that these are “vague, burdensome, immaterial and irrelevant” based on the asserted theories of liability. [Affirmation in Opposition to Claimant’s Motion to Compel Disclosure by Daniel Chu, Assistant Attorney General, ¶5]. Claimant notes that the request for the names and addresses of nurses, nurse aides and housekeeping staff who provided care to decedent was contemplated in the February 2008 Order, and that such information is more readily accessible to defendant. [Reply Affirmation by Harriet A. Gilliam, Attorney for Claimant, ¶8].

With respect to the additional notice for discovery and inspection, defendant has submitted a response dated September 24, 2008, and indicates that such submission renders claimants’ demand moot. [Affirmation in Opposition to Claimant’s Motion to Compel Disclosure by Daniel Chu, Assistant Attorney General, Exhibit B]. Notably, the Response attached to the opposition papers does provide copies of some policies. [Id.].

Thus, for example, in response to a request for “(e) Stony Brook University Hospital protocol and procedures for nursing staff assessment of patient’s condition and monitoring of vital signs in effect in 1999,” defendant indicates: “Attached please find the policy entitled ‘Vital Signs, measurement of’ and ‘ Blood Pressure Measurement.’ ” [Id.]. In response to a request for “(g) Stony Brook University Hospital protocol and procedures for charting of patient’s medical condition by nursing and medical staff in effect in 1999” the defendant indicates: “The defendant is in possession of a document entitled ‘Medical Record: Charting’ responsive to said request and will forward under separate cover.’ ” [Id.]. In response to a request for “(i) Stony Brook University Hospital protocol and procedures for contacting the Suffolk County Medical Examiner’s Office to report a patient’s death and requesting an investigation as to cause of death in effect in 1999,” defendant indicates: “attached please find the policy entitled ‘Deaths, Notification of Next of Kin and Autopsy responsibilities.”[5]

Elsewhere, defendant responds to similar document requests by indicating that “the defendant is not in possession, custody or control of any responsive document;”[6] by objecting to vagueness and overbreadth while stating “Notwithstanding this objection, and without waiving it, the defendant is not in possession, custody or control of any responsive document;”[7] and by objecting to the demand as “improper” and further stating “notwithstanding this objection, and without waiving it, the defendant is not in possession, custody or control of any responsive document.”[8]

Claimants note that the medical charting document promised under separate cover has not been received, and again voices her argument that the lack of the internal procedural documents requested is unlikely given the regulatory scheme surrounding hospital administration. [Reply Affirmation by Harriet A. Gilliam, Attorney for Claimant, ¶¶5 and 6]. Claimant’s attorney also requests that the defendant provide a table of contents of the policies and procedures manual from which the “charting vital signs” information was taken.
Decision
After carefully considering the respective postures of counsel, each motion is granted in part. The court finds persuasive the suggestion that defendant provide an affidavit by a person with knowledge attesting to the representations made by defense counsel - who, it should go without saying, is not a person with knowledge - to the effect that no protocols or policies of the type requested exist. Accordingly, defendant is directed to provide such an affidavit, and/or certified copies of the protocol, policy or manual documents requested, within twenty (20) days of the filing date of this decision herein.

In the same connection, defendant is directed to provide claimant’s counsel with a photocopy of the table of contents of the policies and procedures manual excerpted for production in response to the notice for discovery and inspection, as well as the charting document promised, if it has not already been provided, within twenty (20) days of the filing date of this decision herein.

Defendant is directed to provide the names, titles, and business addresses of nurses, nurses aides and other hospital staff or employees who attended to the decedent from February 10, 1999 until his death on February 23, 1999, within twenty (20) days of the filing date of this decision herein.

Additionally, claimant’s supplemental bill of particulars is stricken as inadequate and claimant is directed to serve a further bill of particulars “ ‘setting forth specific and particular allegations’ ” [see Myers v Community General Hosp. of Sullivan County, 51 AD3d 1359, 1360 (3d Dept 2008)], within twenty (20) days of being furnished with the responses directed to be served by the defendant herein noted above. Any such supplemental bill is to filed with proof of service in the office of the chief clerk as required. [22 NYCRR §206.5(c)].

Any remaining depositions claimant expects to demand are to be noticed within the same time frame of twenty (20) days of receipt of the responses by defendant directed above, or else entitlement to same is waived. If defendant anticipates the need for any further depositions, they are to be noticed within twenty (20) days of the filing date of this decision.

Since no other discovery has been discussed in the respective motions as had been directed in the July 14, 2008 Daily Report any issues that might have been raised in the present motions are waived.

As also provided in the Court’s July 14, 2008 Daily Report, all remaining discovery shall be completed by May 29, 2009, and a note of issue and certificate of readiness for trial shall be filed by June 5, 2009, unless the parties should stipulate in writing to an extension of such time period, such stipulation to be so ordered by the Court if approved. Counsel are both reminded that consent to reasonable stipulations shall not be unreasonably withheld. Any motions for summary judgment shall be made within forty-five (45) days of the filing of a note of issue.



October 20, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. According to the Supreme Court decision, this would incorporate the actions of “hospital residents and clinical fellows” as well. [See Affirmation in Support of Motion [M-75480] by Harriet A. Gilliam, Exhibit H].

[3]. “. . .[The] particularization as to plaintiff[‘s] . . . period of confinement, alleging that such period was ‘approximately one year’, was unnecessarily vague in light of her ability to provide a more accurate response. Finally, the plaintiffs’ further response to item No. 4 of defendant’s demand, which sought the particulars of any claims of vicarious liability, attempted to assert such claims of vicarious liability against defendant ‘as to each of his [sic] agents, servants, employees, associates, nurses and/or employees as were involved in the care and treatment of the plaintiff’. That response is unacceptable. Plaintiffs have the ability to provide greater specificity with regard thereto.”

[4]. “The demand also asked plaintiff to specify defendant’s particular acts of negligence or culpable conduct which plaintiff claims were the cause of the children’s injuries. While responses must specify the acts of negligence as to each defendant, a general statement of the acts or omissions constituting the negligence claimed is sufficient . . . (citations omitted). Here, plaintiff asserted that defendant failed to identify, remove or otherwise abate the areas containing lead paint. Plaintiff also cited various regulations and statutes with which defendant allegedly did not comply. These responses were sufficient . . . (citations omitted), and plaintiff’s repetition of them to defendant’s demands regarding causation were sufficient inasmuch as they provide defendant with a general explanation of causation and allege that defendant's acts of negligence set forth in the bill of particulars contributed to or created the dangerous condition of lead paint accessible by the children.”
[5]. This document is also responsive to claimant’s request for “(j) Stony Brook University Hospital protocol and procedures for obtaining consent to perform autopsy in effect in 1999.” [Affirmation in Opposition to Claimant’s Motion to Compel Disclosure by Daniel Chu, Assistant Attorney General, Exhibit B].
[6]. This response is given to claimant’s requests for copies of (a) Stony Brook University Hospital organizational chart for the Renal Transplant Department as it existed in February,1999; and (k) Stony Brook University Hospital protocol and procedures for performing an autopsy on a renal transplant patient in effect in 1999. [Affirmation in Opposition to Claimant’s Motion to Compel Disclosure by Daniel Chu, Assistant Attorney General, Exhibit B].
[7]. This response is given to claimant’s requests for copies of (b) protocol and procedures of the Stony Brook University Hospital Renal Transplant Department in effect in February 1999; (c) Stony Brook University Hospital protocol and procedures for staffing and the coverage of medical staff within the Renal Department in effect in 1999; and (f) Stony Brook University Hospital protocols and procedures for nursing staff contacting and notifying treating physicians with respect to changes in patient’s condition in effect in 1999.[Affirmation in Opposition to Claimant’s Motion to Compel Disclosure by Daniel Chu, Assistant Attorney General, Exhibit B].
[8]. This response is given to claimant’s requests for copies of (d) Stony Brook University Hospital protocol and procedures for the qualifications, training, assignment and supervision of clinical fellows within the Renal Transplant Department in effect in 1999; and (h) Stony Brook University Hospital protocol and procedures for consults of renal transplant patients by the nephrology department in effect in 1999. [Affirmation in Opposition to Claimant’s Motion to Compel Disclosure by Daniel Chu, Assistant Attorney General, Exhibit B].