Judicial conduct

Judge may be shielding 

hospital from bad news

By David Baker
Commentary
Posted Wednesday Dec. 5, 2012

The apparent agreement between Capital Region medical providers under which the area’s news organizations have kept dozens of medical malpractice lawsuits filed against advertisers out of public view may have another participant.

A state Supreme Court judge.

The judge is Stephen A. Ferradino of Saratoga County.  Back in July, a lawsuit against a former gynecologist and Samaritan Hospital was settled in Ferradino’s court on the first day of trial.

In the lawsuit, Susan Stalker of Waterford alleged that Akiva Abraham had left her disfigured when he performed an unnecessary surgery on her breast without her knowledge or consent.  The scheduled procedure, she alleged, was a biopsy, but once she was sedated Abraham removed a large amount of tissue, which later tests showed to be non-cancerous.

The suit was filed in 2006.  It also alleged that Samaritan Hospital was negligent in granting and repeatedly renewing Abraham’s privileges, despite considerable evidence that he was medical and morally unfit to practice.

Finally, after numerous legal maneuvers – including an appeals court decision in 2010 – the case was set for trial.  By this time Abraham has lost his medical license on 34 counts of misconduct and gross misconduct, had filed for bankruptcy and was in prison for an unrelated conviction of insurance fraud stemming from an arson.

In the week before the trial, Stalker’s lawyers filed motions asking Ferradino to issue subpoenas for certified copies of three other malpractice lawsuits that named Abraham and Samaritan Hospital as defendants, and for copies of state Health Department records.  They also wanted to subpoena the testimony of two Samaritan Hospital doctors.

Samaritan’s lawyer’s opposed the motions and also filed their own motions, asking the judge to exclude questions about the prior lawsuits and about Abraham’s medical-license revocation. They also wanted a two-part trial, first on Abraham’s alleged malpractice, with a second  part – on Samaritan’s alleged negligent credentialing  – to take place only if Abraham was found to have committed malpractice.

These motions were filed in July and posted on the Saratoga County clerk’s web page, from which they can be viewed or download.

Ferradino’s decisions on these motions would have had a major impact on the way the case was presented to a jury.  But today, four months after the lawsuit ended, those decisions – and a further motion apparently submitted on the first day of trial – have not been posted on the county clerk’s web site.

The filing and therefore the public posting of decisions is required by a section of the Civil Practice Law and Rules.  Section 2220 (a) says:

“An order determining a motion shall be entered and filed in  the office of  the  clerk of the court where the action is triable, and all papers used on the motion and any opinion or memorandum  in  writing shall be filed with that clerk unless the order dispenses with such filing.”

In addition, most orders signed by judges are sent to the party who won the decision and include the following statement:

“The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. You are not relieved from the applicable provisions of that section with respect to filing, entry and notice of entry.”

It’s  that “entry” – the filing and proof of filing of Ferradino’s decisions on those motions – that still has not been made.

So did Ferradino dispense with the filing requirements?  And if so, why?

In a letter to Ferradino dated November 21, this page asked about the un filed decisions.  There has been no response.

Then there are the motion papers that were submitted by the attorneys.  These also used to be filed by the lawyers but under an order from the state chief administrative judge, original motions and supporting papers are now to be sent by the judge’s chambers directly to the county clerk for filing.

In the Stalker vs. Abraham and Samaritan Hospital lawsuit, that also has not been done.  The last item on the clerk’s web site for the case is a receipt for a motion fee dated July 27 – three days before the trial started.

Meanwhile, an entry on the court system’s web site added on July 31 – the day after the trial started – says that the case was settled before trial, and that there is a motion pending.

So what was the request in that last motion?  Was it for a protective order?  If so, who or what would it protect – other than Samaritan Hospital’s reputation?  And shouldn’t a motion requesting a protective order, and the order itself, be filed and therefore public?

There are no answers to these questions because Justice Ferradino has not  responded to the November 21 letter asking about the missing documents.
***

THE ALLEGATION of negligent credentialing is relatively rare but despite that, the Stalker case lasted over six years without ever being mentioned by the area’s newspapers, even as Times Union reporter Robert Gavin wrote at least 10 stories about Abraham’s other problems.

Gavin, the paper’s legal correspondent, often writes about decisions from the Third Department Appellate Division but he somehow missed the court’s ruling in 2010 on an appeal of one of Ferradino’s decisions in the Stalker case.  He also evidently thinks that the possible existence of a secret order that might have been granted solely to protect the reputation of a hospital not something that would raise serious questions about the conduct of a supreme court judge.  He was informed of it in an e-mail back in August but consistent with his paper’s apparent – and undenied – policy of suppressing any news that could hurt hospital advertisers, he has neither written about it nor asked for more information.

There are also questions of public interest about the settlement of this case. Abraham had no malpractice insurance.  Samaritan had coverage, but it’s likely that the insurance carrier would refuse to pay for a wilful failure over several years to verify that Abraham was fit to practice.  If so, the money for a settlement would have to come from Samaritan’s own funds - some of which are from federal and other public monies.

Is that what happened?  If so, how much will the public ultimately pay for this hospital’s negligence?

These are questions a newspaper should be asking.  But not Albany’s newspapers.  Instead,  they have yet to report that the suit ever existed.
*****

The exclusive first story about the Stalker case is HERE

Several follow-up stories appeared on this page.  They can be found under the links for July and August 2012 near the bottom of the list of archived items on the right.

***