Opinion
# 2012-039-312 Claim No. 115180 Motion No. M-80269
06-30-2012
ROBERT WOODS, Individually and as Administrator of the Estate of MARY A. WOODS, Deceased v. STATE OF NEW YORK
Synopsis
Defendant's motion to amend its answer to assert the affirmative defense of collateral estoppel is granted. Collateral estoppel applies to bar claimants from relitigating matters actually litigated and specifically decided in a related Supreme Court action against claimant's treating physician. The doctrine of collateral estoppel does not bar claimants from litigating issues before this Court relating to acts or omissions of any State employees who were not named as defendants in the Supreme Court action. Case information
UID: 2012-039-312 Claimant(s): ROBERT WOODS, Individually and as Administrator of the Estate of MARY A. WOODS, Deceased Claimant short name: WOODS Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115180 Motion number(s): M-80269 Cross-motion number(s): Judge: James H. Ferreira Barton Barton & Plotkin, LLP Claimant's attorney: By: Sherri L. Plotkin, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Joseph Tipaldo Assistant Attorney General Third-party defendant's attorney: Signature date: June 30, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this claim, Robert Woods, individually and as administrator of the estate of Mary A. Woods (hereinafter decedent), seeks damages for personal injuries and wrongful death of decedent due to alleged medical malpractice committed by employees of defendant State of New York. Specifically, claimants allege that defendant's employees at the University Hospital at Stony Brook (hereinafter "the Hospital") failed to timely diagnose decedent's breast cancer between December 14, 2006 and August 3, 2007, resulting in her death on March 9, 2008.
In addition to the instant claim, claimants brought a concurrent action in the New York State Supreme Court against Todd Griffin, M.D., University Associates in Obstetrics & Gynecology, P.C. (hereinafter "University Associates") and Preferred Women's Obstetric-Gynecologic Care, P.C. (hereinafter "Preferred") (Affirmation in Support of Motion, Exhibit N). Claimants alleged in that action that the defendants, among other things, failed to timely diagnose decedent's breast cancer from August 1, 2006 until August 3, 2007. The Supreme Court action was tried in February 2011, resulting in a jury verdict in favor of defendants. Specifically, the jury found that Dr. Griffin did not depart from good and accepted medical practice on January 5, 2007 by deferring the examination of decedent's left breast mass until after the birth of decedent's child on February 20, 2007. The jury further found that Dr. Griffin did not depart from good and accepted medical practice by not arriving at a diagnosis of the left breast mass of decedent between March 23, 2007 and August 3, 2007 (id., Exhibit E).
Defendant now moves the Court in this action for an order pursuant to CPLR 3025 (b) granting leave to amend its answer to include an affirmative defense of collateral estoppel and, upon granting leave, precluding claimants from relitigating the issues that were decided in the Supreme Court action. Defendant further moves the Court pursuant to CPLR 3212 and 3211 (a) (5) for an order dismissing the claim with prejudice on the ground that claimants are precluded from relitigating any material issue that might support a finding of liability against the State. Claimants oppose the motion.
In support of its motion, defendant has submitted materials from the Supreme Court action, including decedent's medical records and transcripts from the trial. The Court has gleaned the following facts from this evidence. Dr. Griffin was decedent's OB/GYN care provider and had treated decedent since 2000. On December 14, 2006, decedent, who was pregnant with her third child, went to the University Associates office to see Dr. Griffin for a scheduled prenatal visit. During this visit, decedent complained about a lump in her left breast. Griffin examined and diagramed decedent's left breast and noted the lump location. Griffin made a note to recheck decedent's breast at her next visit. At decedent's next prenatal appointment, on January 5, 2007, Dr. Griffin spent the majority of the visit discussing decedent's placenta previa, a life threatening obstetrical condition. He also discussed the lump with decedent. While decedent had a family history of breast cancer, it was not a suspicion of Dr. Griffin at that time. There were no other physical indicia of breast cancer other than the lump. He believed that it was a common glandular change associated with pregnancy, and his plan was to follow up postpartum.
Dr. Griffin saw decedent on a number of other occasions between the January 5, 2007 appointment and her delivery on February 20, 2007. Decedent delivered at the Hospital; another physician delivered her baby, as Dr. Griffin was unavailable. Due to complications, decedent underwent a hysterectomy at the time of the delivery. She was admitted to the Hospital between February 28, 2007 and March 3, 2007 for complications in connection with her cesarean section incision.
During a visit with Jennifer Griffin, a nurse practitioner in Dr. Griffin's office, on March 8, 2007, she referred decedent to a breast surgeon and prescribed her a mammogram and ultrasound. These tests were performed on March 23, 2007. At an April 6, 2007 office visit, Dr. Griffin discussed with decedent the results of her mammogram and ultrasound tests. The ultrasound was negative. The mammogram report indicated that the mass was "probably benign. Palpable abnormality must be evaluated, clinically, preferably by breast surgeon. Follow up left mammogram in six months is recommended to demonstrate stability. Patient has been or will be contacted" (Affirmation in Support of Motion, Exhibit I at 86). Decedent advised Dr. Griffin she had an appointment to see the breast surgeon in May 2007. She saw the breast surgeon, Dr. Louis Merriam, on July 13, 2007. He initially ordered an MRI. On a subsequent visit, Dr. Merriam performed a biopsy of the mass in decedent's left breast. He diagnosed breast cancer on August 3, 2007.
Initially, the Court grants defendant's request for leave to amend its answer to assert the affirmative defense of collateral estoppel. "Leave to amend an answer to assert an affirmative defense should generally be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party" (Giuffre v DiLeo, 90 AD3d 602, 603 [2011]; see CPLR 3025 [b]; Zito v County of Suffolk, 81 AD3d 722, 724 [2011]). Here, the Supreme Court action was not tried until February 2011, well after the answer had been served and filed in this matter. Claimants have not asserted that they will be surprised or prejudiced by the amendment, and the Court's review of the papers of the parties reveals no such prejudice or surprise. Additionally, as discussed further below, the Court cannot say that the affirmative defense of collateral estoppel is either palpably insufficient or patently devoid of merit. As such, defendant's motion is granted to the extent that it seeks leave to amend its answer.
The doctrine of "[c]ollateral estoppel bars relitigation of an issue 'which has necessarily been decided in [a] prior action and is decisive of the present action' if there has been 'a full and fair opportunity to contest the decision now said to be controlling' " (Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199 [2008], quoting Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; see York v Landa, 57 AD3d 980, 981 [2008]). "[P]reclusive effect is limited to only those 'issues that were actually litigated, squarely addressed and specifically decided' " (Church v New York State Thruway Auth., 16 AD3d 808, 810 [2005], quoting Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]). "The party seeking application of collateral estoppel bears the burden of showing that the decisive, identical issue was 'necessarily decided' in the prior action, while the party opposing application of the doctrine must demonstrate the absence of a full and fair opportunity to contest the prior determination" (Church v New York State Thruway Auth., 16 AD3d at 809-810, quoting Buechel v Bain, 97 NY2d at 304). "The question of whether a litigant had a full and fair opportunity to contest the prior determination on those issues requires a case-by-case analysis of the realities of the prior litigation, 'including the context and other circumstances which . . . may have had the practical effect of discouraging or deterring a party from fully litigating the determination' " (Church v New York State Thruway Auth., 16 AD3d at 810, quoting Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]).
Here, as noted above, the jury in the Supreme Court action specifically found that Dr. Griffin did not depart from good and accepted medical practice when he deferred evaluation of decedent's breast mass until after the birth of her child and did not depart from good and accepted medical practice by not arriving at a diagnosis of breast cancer between March 23, 2007 and August 3, 2007. The instant claim, in part, seeks damages for the alleged medical malpractice of Dr. Griffin and his practice, University Associates, regarding his failure to diagnose decedent's breast cancer (Claim ¶ 5). The Court finds that, even assuming that there is a basis for holding the State liable for the actions of Dr. Griffin and his practice,the doctrine of collateral estoppel applies to bar claimants from relitigating any issues relating to Dr. Griffin's failure to diagnose decedent's breast cancer in the instant action. That issue was "actually litigated, squarely addressed and specifically decided" in the Supreme Court action (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d at 826). Moreover, a review of the record reveals that claimants were given a full and fair opportunity to litigate the issue in Supreme Court. As such, defendant's motion is granted to the extent that it seeks a finding that claimants are collaterally estopped from relitigating the issues resolved in the Supreme Court action.
The jurisdiction of the Court of Claims is limited, with some exceptions not relevant here, to claims for money damages against the State (see Carver v State of New York, 79 AD3d 1393, 1394 [2010], lv denied 17 NY3d 707 [2011]; see also NY Const, art VI § 9; Court of Claims Act § 9). Claimants allege in the instant claim that Dr. Griffin is an employee or agent of the Hospital and his practice, University Associates, is "a division of" or is "affiliated with" the Hospital (Claim ¶ 5; Verified Bill of Particulars ¶ 4). However, the papers before the Court contain no support for this proposition.
As noted above, the jury's determination in the Supreme Court action was confined to the alleged acts or omissions of Dr. Griffin. Thus, the alleged acts or omissions of anyone other than Dr. Griffin and the other named defendants in the Supreme Court action have not been fully litigated. In this claim, claimants have alleged medical malpractice that is unrelated to decedent's treatment with Dr. Griffin. For example, claimants allege that Hospital employees committed medical malpractice by failing to diagnose breast cancer during decedent's admissions to the Hospital in early 2007. As such, the doctrine of collateral estoppel does not preclude claimants from litigating issues before this Court with respect to their allegations that are unrelated to Dr. Griffin's treatment of decedent. Thus, the Court denies that part of defendant's motion that seeks dismissal of the claim.
Accordingly, it is ordered that M-80269 is granted to the extent that defendant shall be permitted to amend its answer to include the affirmative defense of collateral estoppel. Defendant shall file its amended answer within twenty days from the filing date of this decision and order. Per defendant's request, the amended answer is deemed served contemporaneously with the filing date of this decision and order. Furthermore, M-80269 is granted to the extent that claimants are precluded from litigating any issues relating to Dr. Griffin's failure to diagnose decedent's breast cancer. The motion is otherwise denied in all other respects.
June 30, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion dated August 8, 2011;
2. Affirmation in Support of Motion by Joseph Tipaldo, AAG dated August 8, 2011 and exhibits attached thereto;
3. Affirmation in Opposition by Sherri L. Plotkin, Esq. dated September 24, 2011; and
4. Affirmation in Reply by Joseph Tipaldo, AAG dated October 6, 2011.