Defendants in a medical malpractice case over a botched eye surgery at New York Presbyterian Hospital, along with their counsel, Martin Clearwater & Bell, have been ordered to pay $10,000 in sanctions for obstructing discovery.
Martin Clearwater was also ordered to pay an additional $5,000 to the Lawyers’ Fund for Client Protection.
Brooklyn Supreme Court Justice Laura Jacobson (See Profile) said in her order in Wright v. Stam, 27364/08, that the defendants and the law firm had engaged in “willful and contumacious conduct” by withholding information about the hospital employees who booked the surgery. The order was dated April 4, but was not entered until May 13.
Martin Clearwater partner John Lyddane, who represents the defendants along with his partners Michael Madden and Kevin McManus, declined to comment.
Brett Nomberg, a partner at Brand Brand Nomberg & Rosenbaum who represents the plaintiff, declined to comment.
The plaintiff, Andre Wright, had a major stroke during retina surgery at the hospital in September 2007, leaving him unable to walk or fully communicate. His malpractice suit, which names the hospital, the surgeon and several other doctors as defendants, was filed by a court-appointed guardian, Armena Gayle.
The suit alleges that Wright, who had a history of diabetes, high blood pressure and a heart condition, was cleared for surgery on one eye and only under local anesthesia, and consented only to that surgery. Instead, he underwent a seven-hour surgery in both eyes under general anesthesia.
During discovery, which Jacobson described in her opinion as “long and tortuous,” Gayle asked for the names and whereabouts of the surgical bookers to find out if they had used the wrong medical clearance forms in Wright’s case.
Wright’s surgeon, William Schiff, testified at his deposition in February 2012 that one of the bookers, identified in Schiff’s records as “Anthony,” no longer worked for the hospital.
In August 2012, the hospital produced the names of two more bookers, Marcia Barnaby and Maria Almenas, but said that the two no longer worked there. It also said that they were never employees of the hospital, and were instead employed by a company called 61st Street Service Corp.
Almenas, however, said in an affidavit that she was not working for the hospital at the time of Wright’s surgery. Barnaby testified in a deposition that she had not booked Wright’s surgery. She also testified that 61st Street Service is, in fact, the human resources department for the support staff for the hospital. This was subsequently confirmed by the deposition of a representative for 61st Street Service.
Gayle then subpoenaed 61st Street Service, asking for payroll records for all bookers working at the hospital at the time of the surgery. The company said the bookers were Barnaby, Anthony Pastore—the Anthony in Schiff’s records—and a third person, Marisel Milan. Records also showed that Pastore had been continuously working for the hospital since 2005, though when Gayle tried to serve him with a subpoena in early 2013, she learned that he had recently moved to Florida. Schiff’s supervisor confirmed in a deposition in February 2013 that Pastore had been working at the hospital until just weeks earlier.
During this year-long discovery process, Gayle brought multiple motions to compel against the defendants, which Jacobson granted.
Gayle moved to strike the defendants’ answer and to impose monetary sanctions, arguing that they had lied in order to avoid producing the surgical bookers and being held vicariously liable for their negligence, in defiance of repeated court orders. The defendants countered that they had made a good-faith effort to identify the bookers and that, in any case, the bookers were not relevant to the malpractice claim.
Jacobson said in her decision that “the willful and contumacious conduct of defendants can be inferred from defendants’ continuous failure to comply with discovery demands and this court’s orders.”
She acknowledged that the defendants had, finally, complied with the discovery demands and court orders. But the “piecemeal” way in which they did so was “inexcusable” and “could only have been designed to conceal evidence and delay these proceedings,” she said.
The fact that Gayle was able to get the information simply by subpoenaing 61st Street Service’s payroll records further confirmed that the defendants’ conduct was willful, the judge said.
The fact that the defendants did not believe the information was relevant was “of no moment,” since they had been ordered to produce it, Jacobson wrote.
The judge declined to strike the defendants’ answer, citing the “public policy favoring resolution of actions on the merit.”
However, she granted Wright’s motion for monetary sanctions, ordering the defendants and Martin Clearwater to pay plaintiff’s counsel, $10,000 for the cost of the sanctions motion.
And she ordered Martin Clearwater to pay an additional $5,000 to the Lawyers’ Fund for Client Protection.
She further ordered that the defendants bear the cost of deposing Pastore.
@|Brendan Pierson can be reached at email@example.com. Twitter: @brenpiers