COMMENT

COMMENT


           Judge’s decision to stay doesn’t look good


By David Baker
Posted Tuesday June 12, 2012

The decision by the judge in Samaritan Hospital’s lawsuit not to remove  himself is not contrary to the law.  But it completely ignores the other factor he should have considered:  the perception that he might be biased in favor of his former law firm and its client.

The hospital is seeking an injunction and money damages against the Internet address and a logo used on a web site that lists previously unreported medical-malpractice lawsuits filed against Capital District hospitals.  A counterclaim alleges that Samaritan Hospital withheld parts of a medical record during a prior lawsuit against the hospital over the death of Lisa Baker.

In a decision issued on June 6, Acting Supreme Court Justice Andrew Ceresia dismissed the counterclaims against the hospital.  He also denied the motion for recusal, noting that Section 14 of the Judiciary Law gives him sole discretion in deciding whether to remove himself.  Ceresia says that although he worked at the law firm that represented Samaritan Hospital during the prior case, he has no recollection of it.

“Because the undersigned has no doubt about his ability to preside over this case in a fair and impartial manner, defendant’s motion for recusal is denied,” he writes.

But Ceresia’s decision does not address the other element that should be considered:  the perception to both a party and to the public that a judge in these circumstances might be biased.  As was pointed out in a previous post, the Uniform Rules of the court state that a judge “..must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned.”

Another factor here is that Samaritan Hospital submitted a reply opposing the motion for recusal.  It is one thing to object to one judge and ask that the case be randomly reassigned to a different one;  it is quite another to ask that a particular judge who worked for a law firm whose actions are questioned in the current case continue to preside over it.

Samaritan’s lawyers could have said nothing.  The fact that they made a formal request for the judge to stay should in itself have been reason enough for Ceresia to step aside.
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www.capitaldistricthealthclaims.com