Secret resolution

Judge: Samaritan negligent-credentialing
lawsuit settlement terms kept confidential

By David Baker
Posted Thursday Dec. 10, 2013

A lawsuit in which Samaritan Hospital in Troy was alleged to have been negligent in granting and repeatedly renewing privileges to a gynecologist whose allegedly unauthorized and unnecessary surgery left a woman disfigured was settled on undisclosed terms just before the start of a trial, according to the judge in the case.

Justice Stephen A. Ferradino of state Supreme Court in Saratoga County was writing in response to a letter sent last month to the state’s chief administrative judge about legal papers in Stalker vs. Akiva Abraham and Samaritan Hospital that have not been filed in the office of the county clerk, as is required by the rules of the court.

In the week before the scheduled trial at least two motions and responses to them had been submitted.  The day after the case settled, an entry on the court system’s web page indicated  that a third motion was pending.  But four months later, no decisions on any of these motions were in the public file in the clerk’s office.

“The parties settled all outstanding matters prior to the start of trial,” Ferradino writes. “All motions pending at the time of settlement were deemed moot and no decisions were rendered and/or necessary.”

Ferradino said a letter decision on an earlier motion requesting “certain subpoenas” had been granted.  As was reported here in July, that request was for the testimony of two physicians, for certified copies of three other lawsuits that named Abraham and Samaritan Hospital, and for records from the state Health Department.  As of last week, that decision also was not in the public record.

“This court has requested that the plaintiff’s attorney file said letter decision,”  Ferradino wrote in his letter.

“Finally, please note that no post-trial motions were filed.  This court has not signed a protective order.  It is this court’s understanding that the parties entered into an agreement by which the terms of their settlement are to remain confidential.”

The letter to the chief administrative judge, Gail Prudenti, was sent after Ferradino did not respond to a letter sent to him in November.

Stalker’s lawsuit was filed in 2006.  It has been reported in numerous stories here and, initially on this blog’s sister web page, www.capitaldistricthealthclaims.com   but has never been mentioned by any of the area’s newspapers.

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Missing motions

Judge’s boss to review case of
court papers not in public file

By David Baker
Posted Wednesday Jan. 8, 2013

This is a follow-up to a story published here on December 5 about court papers that have not been placed in a public file following the end of a lawsuit that alleged that Samaritan Hospital in Troy was negligent in granting and repeatedly renewing privileges to a gynecologist who allegedly performed an unnecessary and unauthorized surgery without the consent or knowledge of the patient.

As of this week, the papers – two motions filed just before the start of a trial and another one apparently filed the day it was settled, and the judge’s decisions on those motions – still have not been filed in the county clerk’s office, as is required by the rules of the court.

The lawsuit was brought in 2006 by Susan Stalker of Waterford against Samaritan Hospital and Akiva Abraham, who at the time of the disputed surgery at the hospital was a gynecologist with a private practice in Saratoga County.  Stalker alleged that in March 2004 Abraham removed a large amount of healthy breast tissue during what was scheduled to be a needle biopsy.  The case settled on July 30 of last year on the first day of trial.

Abraham’s medical license was revoked in 2006 on 34 counts of misconduct unrelated to Stalker’s surgery.  He is now in state prison on a conviction of insurance fraud stemming from an arson.

The Stalker case has never been mentioned by the area’s newspapers.  It was first reported in a story on this blog’s sister web page, northeasthealthclaims.com, in February 2012.

A link to that story appears below.

In the week before the trial, Stalker’s lawyers filed motions asking state Supreme Court Justice Stephen A. 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 physicians.

Ferradino’s decisions on those motions would have had a major impact on how the case would be presented to a jury – and on the willingness of the defendants to settle. 

In a response to a letter sent by this page on December 10 to A. Gail Prudenti, the court system’s chief administrative judge, Mary Mone, a lawyer in Prudenti’s office, said that a copy of the correspondence – which included a copy of the December 5 story on this page – was being forwarded to Vito Caruso “…for his review and any action he deems appropriate.”  Caruso is the administrative judge for the fourth judicial district, which includes Saratoga County.

A rule issued by Prudenti requires trial judges to forward for filing motions and supporting papers.  This is what Ferradino apparently has not yet done in the Stalker vs. Samaritan Hospital case.

Court rules also require attorneys who win a motion to file the decision issued by the judge.

That also has not been done in the Stalker case.

Back in November, a letter was sent to Ferradino asking about the documents missing from the public file.  No response has been received.

Lawyers for both the plaintiff and the hospital have evidently wanted to keep this case out of public view and the area’s newspapers have cooperated, not once mentioning the lawsuit in the six years since it was filed – even as they ran more than a dozen stories about Abraham’s other legal problems.

Now it appears that a judge is also keeping details of the case secret.

There also are questions of public interest about the cost of settling this case. Abraham had no malpractice insurance.  Samaritan had coverage, but it’s probably that the insurance carrier refused to pay for a willful 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 resources – meaning that whether through higher medical bills or reduced services, the public will pay for the hospital’s alleged negligence.

The December 5 story is HERE

The exclusive first story on the Stalker case is HERE

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No news is not good news

The public pays for
the media’s silence 

Opinion

 

By David Baker

Posted Wednesday Jan. 2, 2013

It’s been said that news is information that someone doesn’t want published.

If so, there has been a lot of news about the Capital Region medical providers over the past decade.

And the area’s media organizations have been happy to keep it out of sight.

That news is about dozens of lawsuits alleging malpractice and negligence filed against the area’s medical providers over the past 12 years.

Stating in the late 1990s, those providers somehow persuaded local media outlets to abandon their core function of informing the public about matters that affect it, and instead to ignore allegations of serious harm readily available in public documents.

At the same time, those providers began running a coordinated advertising campaign that to this day is sending a steady stream of money to the new outlets, filing the pages of newspapers and the air time of TV and radio stations with messages that present the providers as competent and caring, while they fight every claim of injury even when they know they ar eliable.

This can only be described as a conspiracy; not in the legal sense, but a conspiracy none the less.  A conspiracy that benefits the participants but is against the public good.

Now the providers will say that anyone can make allegations in a lawsuit –which is not true; filing a malpractice suit is much harder than most people realize – and that just because someone says a death or injury was preventable doesn’t mean it was.

But that ignores the fact that many of these claims eventually end with a settlement – sometimes a big one – and that even those cases have been ignored by the media.

Meanwhile, reporting at least some of these lawsuits would benefit the public, as I explained last year in a detailed letter to the publishers of the area’s largest newspaper, the Albany Times Union.

First, it would motivate the providers to reduce errors and acknowledge harm when it occurred, because that would be the only way to stop the damaging stories in the media.

As long as the lawsuits are invisible, the providers can aggressively fight every claim without any bad publicity. This imposes a hidden tax, because the lawyers’ fees and expenses and the much bigger payouts needed to settle a case that has been fought right up to a trial are ultimately all paid by the public.

Second, it would spare injured patients and  bereaved family members the anguish of a legal battle, and perhaps worse, being denied an explanation for an unexpected death or injury.

But that is not going to happen as long as the area’s media organizations and medical providers continue their conspiracy of silence, ignoring their duty to the public in favor of  providers whose focus on image rather than patient safety puts everyone at risk.

Meanwhile, people can only wonder how many other doctors have hospital privileges when, like Akiva Abraham, a required check would reveal that he or she is unfit to practice, and how many other stories of public interest are being ignored by newspaper editors who are more concerned with keeping advertising revenue flowing in than fulfilling their responsibility to inform.

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