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Abraham’s medical license was revoked in 2006 on 34 counts of misconduct unrelated to Stalker’s surgery.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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