|Claimant(s):||MEMUNA BECKLEY-KAMARA, a mentally incompetent person, by MARIAMA YILLA, her guardian ad litem|
|Claimant short name:||Beckley-Kamara|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Zucker & Bennett, P.C.
By: Sandra H. Bennett, Esq.
|Third-party defendant's attorney:|
|Signature date:||June 25, 2009|
|See also (multicaptioned case)|
Psychiatrist Ramaswamy Viswanathan, M.D. moves for an order quashing a subpoena served on him, a non-party, to appear for a deposition. In the underlying claim, it is alleged that on September 17, 2002, Memuna Beckley-Kamara suffered hypoxic brain damage because she was improperly monitored at Downstate Medical Center in Brooklyn. She remained hospitalized there until October 22, 2002. During Ms. Beckley-Kamara's admission, Dr. Viswanathan saw her at the hospital for a psychiatric consultation on October 15, 2002. The doctor's brief consultation note is partially illegible, but it can be discerned that he refers to Ms. Beckley-Kamara as suffering from "delirium," and that "she will need round the clock supervision in view of her cognitive impairments." See exhibit A to claimant's opposition papers.
Dr. Viswanathan essentially makes three arguments: (1) that he has not received a HIPAA compliant authorization; (2) that claimant has failed to demonstrate that the information sought cannot be obtained through other sources; and (3) that claimant is attempting to use him as an expert witness and that if his deposition is permitted, he should be compensated as an expert.
The first and third arguments are unavailing. As to an authorization, Dr. Viswanathan acknowledges in his reply papers that after this motion was made, he was provided with a HIPAA compliant authorization. As to expert testimony, claimant has represented that if the doctor's deposition is permitted, he will not be asked any questions that require a medical opinion, but rather will be questioned as a fact witness about the content of his consultation note.
As to the doctor's second argument, the Second Department has held that a party seeking the deposition of a nonparty treating physician "must show special circumstances . . . The existence of such special circumstances is not established merely upon a showing that the information sought is relevant. Rather, special circumstances are shown by establishing that the information sought cannot be obtained through other sources . . ." Tannenbaum v Tenenbaum, 8 AD3d 360 (2d Dept 2004). See also, e.g., Ferrer v Horvath, 143 AD2d 627 (2d Dept 1988).
Neither party questions that the information sought by claimant here is relevant. The only issue is thus whether the information sought from Dr. Viswanathan can be otherwise obtained. In Ferrer, where a nonparty physician deposition was denied to defendants, they were in receipt of reports and X-rays taken by the physician. In the instant case, claimant has only Dr. Viswanathan's brief note. As set forth above, the note contains the conclusions that Ms. Beckley-Kamara suffered from delirium and would require supervision because of cognitive impairments.
Nothing in the record suggests that there is any way to determine the basis for Dr. Viswanathan's conclusions other than by deposing him. See, analogously, Bostrom v William Penn Life Ins. Co. of New York, 285 AD2d 482 (2d Dept 2001), in which the deposition of a nonparty physician, a medical examiner, was permitted. The Second Department found that special circumstances had been demonstrated where the autopsy and death certificate concluded that the manner of death was suicide, but did not state the doctor's basis for such finding.
Accordingly, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-76731 be denied, and that Dr. Ramaswamy Viswanathan make himself available for deposition on a mutually agreeable date within sixty (60) days of the filing of this Decision and Order. IT IS FURTHER ORDERED that the deposition shall be limited to inquiry with respect to Dr. Viswanathan's consultation note of October 15, 2002.
June 25, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: notice of motion on behalf of Dr. Viswanathan with affirmation in support and exhibits A and B; Claimant's Affirmation in Opposition to Motion to Quash Subpoena with exhibits A and B; and Reply Affirmation on behalf of Dr. Viswanathan.