Opinion
25049/14
12-23-2019
Ana GENAO, as Administrator of the Estate of Hungria Genao, Deceased, and Ana Genao, Individually, Plaintiffs, v. BRONX LEBANON HOSPITAL and Noemi C. Balogh, M.D., Defendants.
Allan Zelikovic, Esq., Weitz & Luxenberg, P.C., 700 Broadway, New York, New York 10003, (212)558-5525, Plaintiffs' Attorney Robert K. Lapping, Esq., Kerley, Walsh, Matera & Cinquemani, P.C., 2174 Jackson Avenue, Seaford, New York 11783, (516)409-6200, Attorney for Dr. Balogh Mary C. Mathwich, Esq., Wilson, Elsner, Moskowitz, et al, 1133 Westchester Avenue, White Plains, New York 10604, (914)323-7000, Attorney for Bronx Lebanon
Allan Zelikovic, Esq., Weitz & Luxenberg, P.C., 700 Broadway, New York, New York 10003, (212)558-5525, Plaintiffs' Attorney
Robert K. Lapping, Esq., Kerley, Walsh, Matera & Cinquemani, P.C., 2174 Jackson Avenue, Seaford, New York 11783, (516)409-6200, Attorney for Dr. Balogh
Mary C. Mathwich, Esq., Wilson, Elsner, Moskowitz, et al, 1133 Westchester Avenue, White Plains, New York 10604, (914)323-7000, Attorney for Bronx Lebanon
Joseph E. Capella, J.
The following papers numbered 1 to 5 read on this motion duly submitted on September 9, 2019.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1 -2
ANSWERING AFFIDAVIT AND EXHIBITS 3 - 4
REPLY AFFIDAVIT AND EXHIBITS 5
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
By notice of motion dated July 1, 2019, plaintiffs seek to compel non-party Zohra Salahuddin, M.D. (Dr. Zohra), to appear for a continued deposition ( CPLR § 3124 ), and by notice of motion dated August 16, 2019, defendant, Bronx Lebanon Hospital (Bronx Lebanon), seeks to quash subpoenas to depose three other non-party doctors ( CPLR § 2304 ), and preclude discovery of certain conversations between these doctors ( CPLR § 3103 ). The complaint in this medical malpractice action alleges that plaintiff-decedent, Hungria Genao, received negligent treatment on April 28, 2014, while he was a patient at Bronx Lebanon. Decedent was there to undergo elective knee replacement surgery, and while in the recovery room (a/k/a PACU) he became unresponsive and a Code (a/k/a emergency) was called. He was eventually resuscitated, but suffered an anoxic brain injury and died on November 12, 2014. On May 17, 2019, pursuant to an open commission order by this Court, Dr. Zohra was deposed in Pennsylvania.
Dr. Zohra was the anesthesiologist on April 28, 2014, and testified, inter alia , that she was upset by decedent's Code, and had a conversation about this with her supervisor, Dr. Chang, the Chief of Anesthesia. Dr. Zohra testified that Dr. Chang then spoke with his supervisor, Dr. Sridhar Chilimuri, the Chief of Medicine, about the incident, and relayed this conversation back to her. She also spoke with another anesthesiologist, Dr. Foster, about decedent's Code and the Code of another patient that day. During the deposition, counsel for Dr. Zohra, who is also counsel for defendant, Noemi C. Balogh, M.D., objected to certain questions and directed Dr. Zohra not to answer same. According to plaintiffs, the repeated objections were in violation of the Uniform Court Rules (22 NYCRR § 221), and Dr. Zohra should be ordered to appear for a continued deposition.
In an attempt to create an environment that is conducive to open and expansive disclosure, the CPLR provides that questions raised at a deposition should be freely permitted and answered unless palpably improper or privileged, and all objections except as to form are preserved for trial. ( CPLR 3115(b) ; 22 NYCRR § 221.2.) For example, in malpractice actions involving multiple physicians, it is improper to ask one of the physicians about the professional quality of services rendered by another physician if the question bears solely on the alleged negligence of said other physician, and not on the alleged malpractice of the physician being deposed. ( Carvalho v. New Rochelle , 53 AD2d 635 [2nd Dept 1976].) On the other hand, if the question refers solely to the treatment rendered by the physician being deposed, the mere fact that it may also refer to the services rendered by another physician does not excuse a response ( Harley v. Catholic Medical , 57 AD2d 827 [2nd Dept 1977] ). As previously mentioned, during the deposition of Dr. Zohra, objections to certain questions were raised and Dr. Zohra was directed not to answer.
The first objection that plaintiffs take issue with appears on page 52, line 17 of the deposition transcript as follows:
Q If there had not been an order in the chart from orthopedics that the patient was to get morphine, is morphine the pain medication you would have ordered for Mr. Genao? COUNSEL FOR ZOHRA: I have to object to that question. Do not answer it. This is a fact witness, not a
The second objection arose on page 67, line 25 of the transcript as follows:
Q Based on what you told us, the elevated blood pressure, high cholesterol, being overweight, sedentary lifestyle, being over the age of 70, and the diastolic dysfunction on echo, did you believe that Mr. Genao was an appropriate candidate for surgery?
COUNSEL FOR ZOHRA:
I object.
Even though Dr. Zohra participated in the surgery, she is not a party to this action and is being deposed only as a fact witness. ( McDermott v. Manhattan Eye , 15 NY2d 20 [1964] ; Waters v. East Nassau Medical , 92 AD2d 893 [2nd Dept 1983].) As such, the aforementioned questions which called for opinions (i.e. whether morphine should have been ordered and whether Mr. Genao was an appropriate candidate for surgery) were not appropriate questions to ask of this witness (id .), and counsel for Zohra appropriately objected.
The third objection appears on page 68, line 15 of the transcript as follows:
Q Did you ever speak with anyone after the code about how it was that Mr. Genao was cleared for surgery?
A I did, sir.
Q Who did you speak to?
A I was upset, you know, by the code because — so I called, later that night, Dr. Chris Chang, who was chief of anesthesia.
Q Chris Chang?
A Yes, sir.
Q What did you tell Dr. Chang?
A I told him, look, I'm really, really upset about this, and, you know, we have to do something about this.
Q Did you tell him specifically what it was you were upset about?
A Well, the code. You know, you don't want anybody to code. You want to make sure the patients are in good shape, they're good candidates and they're in good shape for the surgery.
Q Other than what you just told us you said to him, did you indicate to him that you had some concerns about how this patient got cleared for surgery?
COUNSEL FOR BRONX LEBANON:
Objection.
A I do not recollect.
Q Did Dr. Chang respond in any way to your concerns?
A Yes, sir, he did.
Q What did he say?
COUNSEL FOR ZOHRA:
You can get that from Dr. Chang, if you choose, but you're not going to get it from this witness.
COUNSEL FOR PLAINTIFFS:
This is a fact question I'm asking her.
COUNSEL FOR ZOHRA:
I understand. It's also hearsay.
The fourth objection appears on page 72, line 9 of the transcript as follows:
Q So did Dr. Chilimuri speak with you?
A Not with me, sir.
Q Did Dr. Chang tell you that he had spoken with Dr. Chilimuri?
A Yes, sir.
Q And what did Dr. Chang tell you about his conversation with Dr. Chilimuri?
COUNSEL FOR ZOHRA:
Don't answer that.
The basis for the fourth objection was not put on the record, but according to the opposition papers by counsel for Drs. Balogh and Zohra, it is a hearsay objection, similar to the third objection. While hearsay may be the appropriate objection to preclude the answer to this question from being introduced at trial, it does not prohibit the need for a response during the deposition. ( CPLR 3115(b) ; 22 NYCRR § 221.2.) On the other hand, Bronx Lebanon's motion/opposition papers do not allege a hearsay objection, but instead allege that the conversations between Drs. Zohra, Chang and Chilimuri are protected under New York State Education Law § 6527(3) and Public Health Law § 2805. And based on these statutes, Bronx Lebanon's motion seeks to quash ( CPLR § 2304 ) plaintiffs' subpoena to depose Drs. Chang and Chilimuri, and for a protective order ( CPLR § 3103 ) regarding these conversations.
Education Law § 6527(3) and Public Health Law § 2805 both protect from disclosure documents created by or at the behest of a quality assurance committee for quality assurance purposes. The confidentiality attached to the proceedings and work product of a hospital's quality assurance committee is intended to promote the quality of care through self-review without fear of legal reprisal. ( Katherine v. State of New York , 94 NY2d 200 [1999].) It also enhances the objectivity of the review process and ensures that the committee may frankly and objectively discuss and analyze the quality of the health services rendered. ( Logue v. Velez , 92 NY2d 13 [1998].) The burden is on Bronx Lebanon to establish that the documents, or in this case the communication between Drs. Balogh and Zohra, were in accordance with the aforementioned statutes. ( Marte v. Brooklyn Hospital , 9 AD3d 41 [2nd Dept 2004].) At a minimum, Bronx Lebanon must show that it has a review procedure, and the information for which the privilege is claimed occurred in accordance with this review procedure ( Robertson v. Brookdale , 153 AD3d 743 [2nd Dept 2017] ).
In support of the relief requested, Bronx Lebanon provides an affidavit from its Chief of Medicine, Dr. Sridhar Chilimuri. According to Dr. Chilimuri, Bronx Lebanon has a "quality/performance improvement program for the purpose of overseeing and improving patient care and treatment." He goes on to state that the program identifies incidents and conducts regular conferences, and after candid discussions, adjustments are suggested. Lastly, he states that he has "no recollection of any conversations with any physicians or staff in 2014 about Mr. Genao's care and treatment at [Bronx Lebanon]." And "had such conversation taken place, they would have been part of the hospital's QA/peer review program in my capacity as Physician in Chief and Chairman of the Department of Medicine." Dr. Chilimuri, Dr. Balogh and Dr. Zohra do not allege that the conversation between Dr. Balogh and Dr. Zohra was part of Bronx Lebanon's QA/peer review program. Given the aforementioned, this Court is not convinced that Bronx Lebanon has met its burden of establishing that a late night phone call by an upset physician (i.e., Dr. Zohra) to the home of her colleague (i.e., Dr. Chang), was somehow part of its formal peer review program. Therefore, Dr. Zohra should have been allowed to answer this question.
The fifth objection appears on page 78, line 2 of the transcript as follows:
Q Did you consider that the morphine that Mr. Genao received played any role in his arrest?
COUNSEL FOR ZOHRA:
I'm objecting to that question because it lacks a foundation. I'll articulate that only if I'm invited.
COUNSEL FOR PLAINTIFF:
Why don't you articulate it for us.
COUNSEL FOR ZOHRA:
Since we don't have a medication administration sheet for the PCA, we don't know if morphine was actually administered or how much, if it was.
So without that vital underlying piece of information, I can't permit an answer to that question.
The basis for counsel's objection was correct because if morphine was not administered, then this would not be a proper question. The witness should have either been shown the medication administration sheet, or asked if he knew whether morphine was administered. Also keep in mind that if morphine was administered, but this witness did not order said medication, then this may lead to a Carvalho (53 AD2d 635 ) objection.
The sixth objection appears on page 84, line 18 of the transcript as follows:
Q How long before Mr. Genao's code was the patient in the other bed in the PACU's code?
A I do not recollect, sir.
Q Talking minutes, hours, something else?
A Hours.
Q Were you present in the hospital when that first code occurred in the PACU?
A Yes, sir.
Q Did you respond to that code?
A Yes, sir.
Q Do you know if that patient had been receiving morphine through a PCA?
A I do not know, sir.
Q Do you know the circumstances surrounding that patient's code?
A Am I allowed to say?
Q Without mentioning the patient's name.
A Isn't that a violation?
COUNSEL FOR ZOHRA:
Yes, that is a violation.
The violation that counsel for Zohra is referring to is a HIPAA privacy violation. ( 45 CFR 164.508(a)(1).) Under HIPAA, protected health information is broadly defined as any individually-identifiable health information created by a health care provider relating to the physical or mental health of an individual. ( Gunn v. Sound Shore , 5 AD3d 435 [2nd Dept 2004].) While plaintiffs are entitled to know that another Code was called in the PACU that day, the circumstances under which that other patient suffered a Code would require the disclosure of this other patient's medical information. This would be a HIPAA violation, and a violation the other patient's physician-patient privilege. ( CPLR § 4504(a) ; Matter of Ashford v. Brunswick , 90 AD2d 848 [2nd Dept 1982].) Therefore, counsel for Zohra appropriately objected.
The seventh objection appears on page 86, line 17 of the transcript as follows:
Q During your time at Bronx Lebanon Hospital, can you tell us approximately how often a code would be called in the PACU?
COUNSEL FOR ZOHRA:
Don't answer that.
COUNSEL FOR PLAINTIFFS:
Why not?
COUNSEL FOR ZOHRA:
What has it got to do with this patient?
COUNSEL FOR PLAINTIFFS:
Well, it has a lot to do with prior testimony.
COUNSEL FOR ZOHRA:
I'm afraid that's none of my concern. She's here to answer questions about her care of this patient.
The "full disclosure of all matter material and necessary" (except privileged or attorney work product) standard of CPLR § 3101(a) has been liberally construed to require disclosure of all matter that will assist in the preparation for trial. ( Hoenig v. Westphal , 52 NY2d 605 [1981].) While it is true that Dr. Zohra is a fact witness regarding decedent's care and treatment, to the extent that she has first hand knowledge regarding Bronx Lebanon's policies, procedures and experience in dealing with Codes in the recovery room, such information may prove material and necessary in preparing for trial. Dr. Zohra should have been allowed to answer this question.
The eighth objection appears on page 87, line 24 of the transcript as follows:
Q After the first code in the PACU that day, the one that you and Dr. Foster worked to resuscitate the patient, did you have a discussion with her about what had happened?
A With that patient.
Q Yes.
A Yes, sir.
Q Do you recall, without mentioning the patient's name, what you and Dr. Foster discussed?
COUNSEL FOR BRONX LEBANON:
Objection.
As the conversation being referred to involves a different patient's Code, to provide an answer would be a HIPAA violation, and a violation the other patient's physician-patient privilege ( CPLR § 4504(a) ; Matter of Ashford , 90 AD2d 848 ). Therefore, counsel for Bronx Lebanon appropriately objected.
The nineth objection appears on page 94, line 16 of the transcript as follows:
Q I want you to assume that Mr. Genao was diagnosed with a neurological deficit at some point after the code.
A Yes.
Q Do you have an opinion, to a reasonable degree of medical certainty, as to the cause of his neurological deficit?
COUNSEL FOR ZOHRA:
Do not answer the question.
As previously mentioned, Dr. Zohra is not a party to this action and is being deposed only as a fact witness. ( McDermott , 15 NY2d 20 ; Waters , 92 AD2d 893.) Therefore, the aforementioned question which called for an opinion is not an appropriate question to ask of this witness (id .), and counsel for Zohra appropriately objected.
The tenth objection appears on page 96, line 2 of the transcript as follows:
Q Other than the notes in the chart that you wrote, did you ever make any notes anywhere else about Mr. Genao or his case?
A No, sir.
Q You never wrote in a diary, never wrote a letter to somebody, never —
A Apart from what I told Dr. Chang.
Q When you say the part you told Dr. Change, did you memorialize the conversation somewhere?
A No. But I remember it very well. I mean, fairly well.
Q Do you remember anything else about that conversation you haven't told us about?
A Yes.
Q Can you tell us what else you and Dr. Chang discussed?
COUNSEL FOR ZOHRA
Do not answer.
The basis for the tenth objection was not put on the record, but according to the opposition papers by counsel for Drs. Balogh and Zohra, it is a hearsay objection. As previously mentioned, while hearsay may be the appropriate objection to preclude the answer to this question from being introduced at trial, it does not prohibit the need for a response during the deposition. ( CPLR 3115(b) ; 22 NYCRR § 221.2.) Bronx Lebanon alleges that the conversation is protected under New York State Education Law § 6527(3) and Public Health Law § 2805. But as previously mentioned, Bronx Lebanon did not establish that a late night phone call by an upset physician (i.e., Dr. Zohra) to the home of her colleague (i.e., Dr. Chang), was somehow part of it formal peer review program. The witness should have been allowed to answer this question.
The eleventh objection appears on page 98, line 24 of the transcript as follows:
Q You mentioned that Mr. Genao remained in the operating room for some period of time because they were waiting for a bed in the PACU. Was that common at Bronx Lebanon Hospital when you were there?
A Yes, sir.
Q Did you ever say anything to anybody, that they were booking too many cases because the PACU was overloaded?
COUNSEL FOR ZOHRA:
Don't answer that question.
The twelfth objection appears on page 99, line 6 of the transcript as follows:
Q Did you ever complain to the administration, or Dr. Meftha or Dr. Chang, or anyone else, other than possibly your attorney, that there were too many cases being booked?
COUNSEL FOR ZOHRA:
Don't answer that question.
These questions lacked any foundation. Dr. Zohra was not asked, nor was the question rephrased to ask, why it was common for patients in the operating room to wait for a period of time for a bed in PACU. Instead it assumes that the delay was due to "booking too many cases because the PACU was overloaded," and counsel for Zohra appropriately objected.
The thirteenth objection appears on page 102, line 25 of the transcript as follows:
Q At the time of the code, was Mr. Genao suffering from acidosis, whether it was metabolic or repiratory?
A Probably.
Q Do you know why he didn't receive any sodium bicarbonate?
COUNSEL FOR ZOHRA:
I object. Don't answer.
The basis for the thirteenth objection was not put on the record, but according to the opposition papers by counsel for Drs. Balogh and Zohra, the "question is palpably improper as it called for the operation of another's mind, and/or opinions of actions of others that were or were not taken." This objection was premature. Dr. Zohra may have answered "no, I do not know why Mr. Genao did not receive sodium bicarbonate." In addition, as a fact witness, she may refer to an observation she made at the time in question. For example, she might have responded that "Mr. Genao did not receive sodium bicarbonate because there was an order in the medical records that he not receive sodium bicarbonate." Dr. Zohra should have been allowed to answer this question.
The fourteenth objection appears on page 103, line 23 of the transcript as follows:
Q Did someone diagnose Mr. Genao as having suffered a NSTEMI?
A I read it in the chart.
Q Do you agree with that diagnosis?
COUNSEL FOR BRONX LEBANON:
Object.
COUNSEL FOR ZOHRA:
Doctor, when you were treating the patient, did you have an opinion about whether or not the patient had an NSTEMI?
A At that time, no.
Q Since that time, have you adopted that as your diagnosis?
COUNSEL FOR ZOHRA:
Doctor, don't answer that question.
The fifteenth objection appears on page 104, line 22 of the transcript as follows:
Q Do you believe that the patient suffered an anoxic brain injury ?
COUNSEL FOR ZOHRA:
You can ask her about her opinion at the time she was treating the patient.
While Dr. Zohra is not a party to this action and is being deposed only as a fact witness, her opinion at the time in question (emphasis added) regarding the treatment she was providing Mr. Genao is an appropriate question. ( McDermott , 15 NY2d 20 ; Waters , 92 AD2d 893.) On the other hand, whether she agreed with the diagnosis of another physician is not an appropriate question. ( Carvalho , 53 AD2d 635.) In addition, asking her whether she has an opinion now, years later after having considered and reviewed the medical records, would inappropriately elevate her to an expert witness. ( McDermott , 15 NY2d 20 ; Waters , 92 AD2d 893.) Counsel for Zohra appropriately objected to these questions.
The sixteenth and final objection appears on page 106, line 15 of the transcript as follows:
Q Do you know for how long Mr. Genao's brain did not receive enough oxygen?
A I do not know, sir.
Q Do you have a range in your mind as to how long he, his brain, must have been deprived of oxygen for him to suffer an anoxic brain injury ?
COUNSEL FOR ZOHRA:
Do not answer that question.
COUNSEL FOR PLAINTIFFS:
I'm not sure I understand for (sic) that one.
COUNSEL FOR ZOHRA:
The first several —
COUNSEL FOR PLAINTIFFS:
She said she doesn't know. Now I'm asking is there a range of time.
COUNSEL FOR ZOHRA:
And that makes her an expert. She's here as a fact witness.
The question, as phrased (i.e., "do you know" versus "did you know"), appears to ask Dr. Zohra for her opinion now, years later after having considered and reviewed the medical records, regarding the range of time Mr. Genao was deprived of oxygen. The question inappropriately elevates her to an expert witness ( McDermott , 15 NY2d 20 ; Waters , 92 AD2d 893 ), and counsel for Zohra appropriately objected.
The motion by Bronx Lebanon also seeks a protective order regarding the conversation between Drs. Zohra, Chang and Foster, and to quash plaintiffs' subpoena to depose Dr. Foster. Dr. Foster is referred to on page 85, line 2 of the transcript as follows:
Q what was your role in the first code?
A assisted with the CPR and the bag mask, and another anesthesiologist intubated the patient.
Q do you know which anesthesiologist that was?
Am I allowed to answer this?
COUNSEL FOR ZOHRA:
Yes, you are.
A Dr. Foster.
She is also referred to on page 87, line 24 of the transcript as follows:
Q After the first code in the PACU that day, the one that you and Dr. Foster worked to resuscitate the patient, did you have a discussion with her about what had happened?
A With that patient?
Q Yes.
A Yes, sir.
Q Do you recall, without mentioning the patient's name, what you and Dr. Foster discussed?
COUNSEL FOR BRONX LEBANON:
Objection.
COUNSEL FOR ZOHRA:
Do not answer.
As previously mentioned, plaintiffs are entitled to know that another Code was called in the PACU that day. But the circumstances under which that other patient suffered a Code would require the disclosure of this other patient's medical information, resulting in a HIPAA violation, and a violation the other patient's physician-patient privilege. ( CPLR § 4504(a) ; Matter of Ashford , 90 AD2d 848.) Based on the aforementioned, counsels for Zohra and Bronx Lebanon appropriately objected. Given these parameters, however, plaintiffs are entitled to depose Dr. Foster for all matters that are material and necessary, and not privileged or attorney work product. ( CPLR § 3101(a) ; 22 NYCRR § 221.2 ; Hoenig v. Westphal , 52 NY2d 605 [1981].) Therefore, Bronx Lebanon's motion is granted only to the extent of precluding plaintiffs from enquiring of Drs. Zohra, Chang, Chilimuri, and Foster, the circumstances under which that other patient suffered a Code. That portion of this motion which seeks to quash plaintiffs' deposition subpoenas is denied.
Plaintiffs' motion, which seeks to compel Dr. Zohra to appear for a continued deposition ( CPLR § 3124 ), is granted so that plaintiffs may obtain answers to questions that were inappropriately object to. Plaintiffs are directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.