Montfort, Healy, McGuire & Salley LLP



Spring 2017 E-Newsletter

“Drastic” Sanctions Against Defendant in Medical Malpractice Case Issued by Second Department

In a 3-1 decision, the Appellate Division Second Department decided that a defendant’s “contumacious” conduct can lead to not only monetary sanctions, but also the striking of their answer. While the lone dissenting judge argued that the sanctions were “drastic,” the majority held that the nature and degree of penalty lies within the sound discretion of the Court.

The decision came in a medical malpractice action that arose from ophthalmological surgery performed in 2007. The plaintiff, who is the administrator of the estate of the decedent, alleges that prior to the surgery, a surgical booker working at the Hospital gave the decedent a history and physical form to provide to his internist. The form was to obtain medical clearance for the surgery, and informed the internist that the surgery was going to take place under local anesthesia. The internist wrote on the form that the decedent was a “moderate risk for surgery,” and advised that he was in satisfactory condition for the local/standby anesthesia. The procedure was then performed, lasting approximately seven hours, and was instead conducted under general anesthesia. As a result of receiving general anesthesia, the decedent allegedly suffered a massive stroke and died.

The action was commenced against two surgeons who were present during the surgery, the Hospital, and a nurse who assisted the anesthesiologist. The bills of particulars alleged that the surgeons and the Hospital negligently failed to obtain proper medical clearance for the surgery, used the wrong clearance form, and failed to inform the internist that the surgery was going to be performed under general anesthesia.

During discovery, the plaintiff demanded that the defendants produce the names of all surgical bookers who were working in the Hospital at the time surrounding the surgery. After failing to respond to the request, the Supreme Court, Kings County directed them to comply. In response, the attorney for the defendants disclosed the name of two bookers and claimed that they had left their employment with the Hospital. The plaintiff’s counsel later learned that one of the defendants was, in fact, still working at the Hospital. The defendant’s attorney claimed the earlier representation was an honest mistake.

Upon further investigation, the plaintiff’s counsel learned that there was also another surgical booker who was working at the Hospital at the time in question. Questioning the defendant’s good faith compliance with discovery, the Supreme Court held a sanctions hearing. The attorney for the defendants claimed this time, that the failure was an “oversight.” Subsequently, the plaintiffs discovered that the defendant’s attorney had interviewed the additional surgical booker not listed, and confirmed that the surgical booker’s handwriting appeared on the history and physical form in question.

Additional discovery requests were also made for various forms. The attorney for the defendants claimed they could not comply with the requests. The Supreme Court issued an order directing the defendants to provide an affidavit to the same effect. After failing to comply with the order, the court advised the defendant that their answers would be stricken unless they submitted a compliant affidavit within 20 days. The defendant failed to submit a compliant affidavit.

The plaintiff then moved pursuant to CPLR 3126 to strike the answers of the defendants for failure to comply with a court-ordered discovery, and to impose monetary sanctions upon the attorney. The court found the defendant’s actions to be “inexcusable, and could only have been designed to conceal evidence and delay the proceedings.” The court decided to grant the motion only to the extent of imposing a monetary sanction upon the defendants awarding the sum of $10,000 to plaintiff’s counsel for costs and legal fees, and $5,000 from the defendant’s counsel payable to the Lawyers’ Fund for Client Protection. The Plaintiff appealed the decision seeking the defendant’s answers to be stricken.

In their decision, the Second Department agreed that the willful and contumacious character of the defendant’s conduct warranted sanctions. They noted the nature and degree of penalty imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court. They further noted, that the Appellate Division is vested with its own discretion to impose sanctions even in the absence of an abuse of discretion by the lower court.

The Appellate division found that the imposition of just monetary sanctions was insufficient to punish the defendants and their counsel for the willful conduct in failing to timely and fully respond to the discover demands and court orders.

Accordingly, they held the Supreme Court should have granted the plaintiff’s motion to strike the defendant’s answers. The attorney for the plaintiff stated that, after the decision of the Second Department, all but one of the defendants have agreed to settle their claims.

A serious medical malpractice claim can threaten the continued success of a healthcare professional and medical facility. The experienced attorneys at Montfort, Healy, McGuire & Salley LLP provide thorough and effective medical malpractice defense to medical professionals, hospitals and insurance companies throughout the New York City metropolitan area and across the nation. To discuss options for medical malpractice defense, contact us at (800)-240-4082, or fill out our contact form here.

A copy of the full decision can be found here.

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