Motion denied

State judge denies request in
negligent credentialing lawsuit

By David Baker
Posted Sunday April 15, 2012

A request to separate a malpractice lawsuit against a former doctor from a claim of negligent credentialing against Samaritan Hospital has been denied by a Supreme Court judge.

The lawsuit alleges that the former doctor, Akiva Abraham, performed an unnecessary and unauthorized surgery at Samaritan Hospital in 2004, when he removed a large amount of healthy tissue from a patient’s breast.

The patient, Susan Stalker, filed a lawsuit against Abraham alleging malpractice, and against the hospital, alleging that it negligently granted privileges to a doctor it knew or should have known was incompetent and unfit to practice medicine.

In December, state Supreme Court Judge Stephen A. Ferradino ruled that Samaritan Hospital and its nurses are not liable for the alleged negligence of an independent physician. But he did allow a claim that the hospital was negligent in granting privileges to Abraham to proceed.

Appeals of both decisions are pending.

Abraham, a gynecologist, operated Clifton Park Women’s Health. In 2005 the state revoked his medical license, citing 34 counts of misconduct. He has since been convicted of insurance fraud and is free pending an appeal. In November 2011 he filed for bankruptcy protection.

In January, Stalker’s attorneys asked Ferradino to split the case against Abraham from the claims against Samaritan Hospital, arguing that as the bankruptcy filing has placed an automatic hold on the case against Abraham, Stalker’s case is being delayed.

Bu Ferradino disagreed.

“Initially, it must be noted that the trial in this matter is currently scheduled for July 30, 2012. While there is a possibility that the trial date may have to be postponed pending the bankruptcy discharge, any such postponement would only be for a relatively short time. Such a short delay will in no way prejudice the plaintiff. This is especially true considering that the instant action has been pending for almost six years.”

Ferradino also said that the allegations against Abraham and the hospital are intertwined.

“It is significant that if Dr. Abraham is found not to be negligent in the first instance, no liability can be imposed against the defendant hospital,” he wrote.

If Abraham is found to be liable, the question would be whether the hospital knew or should have known that he was unfit to practice and whether its verification process was adequate.

Samaritan has claimed that it was; that all the required checks were done and nothing was found that would warrant denial of privileges – even though, by the time of his last reappointment Abraham and Samaritan Hospital were named as co-defendants in three separate malpractice lawsuits, and the state office for Professional Medical Conduct had served the hospital with a subpoena seeking records of two patients, both of who had been treated by Abraham.

But citing sections of state laws, the hospital has refused to produce documents relating to Abraham’s credentialing, or to allow staff members with knowledge of it to be deposed. That refusal also was challenged, but both Ferradino and the Appellate Division ruled in favor of the hospital.
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Despite its unusual claim of negligent credentialing, this six-year-old case has never been mentioned by the area’s newspapers.

In February of this year, details of the lawsuit appeared in an exclusive story on this blog’s related Web page, www.northeasthealthclaims.com

For a direct link to that story, click HERE

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