The opposite of sorry

Delays a tactic in malpractice defense

Legal filings show how hospitals fight claims
not by revealing facts but by withholding them

By David Baker
Posted Thursday March 21, 2013
1,221 words

This is an update on a claim against St. Peter’s Hospital first reported here on November 3 2012, in which Angela and Gordon  Ryan of Mechanicville claim that Angela Ryan was injured by morphine following surgery.  The suit, filed in 2007, alleges that hospital staff improperly programmed a medication dispenser, causing Ryan to receive an excessive amount of the drug.

As in other cases against medical providers, court documents show a defense marked by obstruction and delay.

According to legal papers, after the surgery and while on the IV dispenser, Ryan “…was found with a bluish coloration of the skin, around her lips and eyes and could not be roused.  Plaintiff was given Narcan to address the adverse reaction to the morphine and a ‘respiratory-go-to’ was called.”

The case is scheduled to go to trial before state Supreme Court Justice Eugene Devine in Albany County on June 10.  It was filed in October 2007. 

Legal papers contain allegations that Ryan’s medical chart for the time she was a patient have not been provided to her attorneys 18 months after they were requested, nor had written responses to questions and information about the medication pump.

Court rules usually require such information to be provided within 30 days.

The Ryans’ attorney is Thomas Conway of Conway & Kirby in Latham, NY.  Earlier this year, another case filed by Conway alleged that Samaritan Hospital in Troy was negligent when it granted and repeatedly renewed privileges to gynecologist Akiva Abraham when it knew or should have known he was unfit to practice.

The case was brought by Susan Stalker of Waterford, who alleged that Abraham left her disfigured when he removed a large amount of healthy issue from her breast without her knowledge or permission during what was scheduled to be a simple biopsy.  The case was settled in July on the first day of trial after six years of legal maneuvering.  It has been reported exclusively in several stories here, beginning with an in-depth account of the case in February 2012 on this blog’s sister web site.  A link to that story appears below.

In the Ryan case, Conway wrote to attorney Richard MaGuire of D’Agostino, Krackeler & Maguire, who is representing St. Peter’s Hospital, on Dec. 15, 2010, about the demanded information.

“…I note that on November 8, 2010, our office requested a Verified Bill of Particulars [written responses to questions] from your client with respect to plaintiff’s demand dated May 5, 2009.  To date, we have not received same.

“Also, on November 8, 2010, our office requested a complete copy of our client’s chart from St. Peter’s Hospital for her April 11, 2005 to April 16, 2005 admission – the one at issue in this litigation.  This has yet to be provided to us although we demanded it back on May 5, 2009.”

Conway also wrote about the medication dispenser.

“Further, plaintiff’s continue to request any information with respect to the PCA [patient controlled analgesic unit] used at the time of the incident.  It is hard to imagine that there is no record at defendant’s hospital indicting the specific PCA used on the plaintiff and how much morphine she was given via the PCA and how much was not used, especially in view of the fact that this is and was a controlled substance.”

Conway goes on to write about an attempt begun more than a year earlier to schedule depositions:

“To date we have not received any date from your office and no witnesses have been identified from the list we provided your office … Please advise our office as soon as possible as to the identity of the witnesses we requested, along with dates that you, or another attorney in your office, can be available to cover these depositions. If we do not hear back from you in a timely manner, we will have no choice but to request a conference and ask the judge to assist us in scheduling these depositions.”

But the information on the medication pump still was not provided; Conway later filed papers asking the judge to compel responses from St. Peter’s Hospital, or, if they were not provided, to disregard the hospital’s initial response to the lawsuit – meaning that it would be deemed to have not denied any of the allegations.

St. Peter’s response was to ask the judge to remove Conway’s entire firm from the case, on the ground the it had hired an attorney, Kimberly Sack, 
who had previously worked for the law firm representing the hospital.

In a response opposing the hospital’s motion, Sack stated that she had limited contact with the Ryan file, preparing only two routine documents, had left the defense firm two months after handing the file, did not see confidential information and could not recall any details, according to Justice Devine’s decision.  “Moreover,” Devine wrote, “Conway states that the firm made concerted efforts to insulate Sack from any work that involve contact with her former law firm or clients, including a prohibition on any discussions with fellow attorneys and staff about matters that involved D’Agostino.”

In its response, St. Peter’s Hospital also said that Conway’s motion should be denied because Conway had not made a good faith effort to resolve the dispute.  But Devine disagreed.

“The record is replete with plaintiff’s attempts to resolve the matter without resorting to motion practice,” he wrote. “Only after phone calls went unreturned and repeated written requests to defendant’s attorney for additional discovery responses were given scant response was the instant motion made by plaintiffs.”

On the matter of the medication pump, Devine wrote that the hospital had stated that all such pumps were destroyed in 2007 but that it was not clear from the record if the pump used by Ryan was destroyed before or after the hospital become aware that the unit was an issue in the case.

Conway claimed that among the documents that were not provided but should exist were any records documenting an adverse reaction to a drug.

“Likewise,” Devine wrote, “plaintiff asserted that defendant is obligated, under the directives contained in defendant’s own PCA protocol, to make certain recordings, in a patient’s record, including recording of wasted drug on the Controlled Drug Administration Record; a recording of prefilled [drug] bags, the initial bolus dose and the number of volume and doses at four-hour intervals on the Intravenous PCA Medication Record, among other things.”

Devine ordered that Conway’s motion to disregard St. Peter’s initial denial would be granted if the hospital did not produce people for deposition.  He denied the request that Conway’s firm be removed from the case.

In early February, the hospital served another motion, according to an entry on the court system’s web page, asking for the whole case to be thrown out.  A decision would normally be due within 60 days after Conway’s response.
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Susan Stalker V. Samaritan Hospital and Akiva Abraham

The earlier Ryan lawsuit story
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The Ryan lawsuit against St. Peter’s Hospital was filed in 2007.  In a merger last year, the hospital joined Northeast Health Inc. and Seton Health under a single governing body with the name St. Peter’s Health Partners.

Seton Health operates St. Mary’s Hospital in Troy.  Northeast Health operates Samaritan Hospital in Troy, Albany Memorial Hospital, Sunnyview Rehabilitation Hospital in Niskayuna, several nursing homes and assisted living facilities and a network of clinics.

The announcement of the merger came a few months after these hospitals (and one other hospital not a part of the consolidation) agreed to pay $9 million to settle a class action lawsuit in which they were accused of conspiring to keep nurses’ pay  at the same level, thus eliminating competition.

Northeast Health was the first to settle, paying $1.25 million while admitting no wrongdoing but agreeing to provide documents and allow staff members to be deposed in the claim that continued against the other hospitals.

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