Lisa Zenzen Baker, 1961-2003


Friday, November 11, 2005

Hospital blocks settlement

It’s back to the legal fight

By David Baker
Posted February 3, 2008

Back in late September of last year, an attorney for Samaritan Hospital said her clients were prepare to discuss a possible settlement of the lawsuit over Lisa’s death. Today, four months later, it appears that there was never a real intent to resolve the case. With any agreement to maintain confidentiality now ended by the defendants’ conduct, here is a detailed account of what has happened during that time.

The hospital and the nurses named in the lawsuit are represented by Kathleen Ryan, Esq. of the law firm of Carter, Conboy, Case, Blackmore, Maloney & Laird, which has offices on Corporate Woods Boulevard in Albany. The defendants’ insurance carrier is Medical Liability Mutual Insurance Company, which has an office on British American Boulevard in Latham. Medical Liability Mutual is the largest medical liability insurer in New York, insuring about 80 percent of the state’s medical providers.

THE OFFER TO TRY AND SETTLE the case came one day after I had deposed then-defendant Dr. Rajinder Jain. At the end of my examination under oath of a nurse, and after everyone else had left the conference room, a retired state Supreme Court judge – who had been appointed by the current judge at Ms. Ryan’s request to referee the depositions – asked me if there had been any attempt to settle. When I said there had not, he left the room and came back a few minutes later with Ms. Ryan, who said her clients were interested in trying to settle the case.

She also said she had an expert who was prepared to say that the hospital was not responsible for Lisa’s death, and that she was ready to file a motion to dismiss the lawsuit.

As soon as she said that, I thought that if it were the case, wouldn’t she be drafting the motion instead of telling me she was ready to attempt a settlement? It appeared to be simply a negotiating tactic, and a rather clumsy one at that. But I didn’t say anything. And later I would learn that the insurance carrier then tried to obtain an expert opinion but couldn’t immediately find anyone to give it.

More on that in a moment.

Over the following few days I expected some sort of contact from Ms. Ryan, with what I assumed would be a specific offer, and to arrange a meeting to discuss the details. But the next correspondence was a demand from her for authorizations to obtain Lisa’s medical records from two doctors and two pharmacies.

I signed them in front of a witness, as was required, and had them served on her. I had already signed dozens of these authorizations in 2005 so I thought that by now Ms. Ryan must surely have every piece of medical information that she could possibly need.

Three weeks later I went to Albany Memorial Hospital (which, like Samaritan, is owned by Northeast Health) to examine some original medical records from the night Lisa was found near death which, because Highlighter had been used on them, had not copied legibly. Ms. Ryan was there, along with attorneys representing the two defendant doctors. After my inspection, Ms. Ryan told the other attorneys about our conversation at the deposition regarding a possible settlement. She then told me that the carrier had asked for a ‘final review’ and that until this was received, she could not give me a specific offer of settlement. She went on to say that she had hoped this review would have arrived in time for our meeting that day – a comment that suggested to me that she thought it might be on her desk when she returned to her office.

But more weeks passed and there was still no contact from Ms. Ryan. In early December I served notices on her to take the depositions of two more of the nurses named in the lawsuit. This was to save time if there was no settlement; the notices have to be served some time before a deposition.

About this time I decided to try and move the apparently stalled matter along by asking the Court to schedule a conference with the judge in his chambers. If such a request is granted, attendance by all parties is mandatory.

The conference took place on December 13. Ms. Ryan began by telling the judge that the insurance carrier was interested in trying to settle, but it had decided to get another expert review before making an offer.

Then, according to the court reporter’s transcript, she said:

“We have not completed that review because, frankly, just because it’s been very difficult to get a doctor in this field to agree to do it for the price they’re willing to pay. We have it out now, and as soon as we get this review back, it’s my understanding they will have some money to offer. I don’t know how much it’s going to be. I think we have talked about that before. I have made my recommendations, but I do know they will be making an offer.

“I apologize to Mr. Baker because when I first broached this, I was told to broach it with the idea that we’re going to be able to get this matter resolved. I will be very frank that my hospital (Samaritan) has to consent, and they have some concerns since one of the doctors was let out (of the lawsuit). I need their consent before I can make any offer.”

(This got my attention: I seem to recall seeing a copy of what’s known as a ‘reservation of rights’ letter from the carrier to the hospital that said the carrier alone decides if and when to settle. But maybe there is another agreement that supersedes it.)

Ms. Ryan went on to say she thought the review would be done and she would be ready to make an offer “in a month” – i.e., by mid January.

Then she said: “But right now I’m waiting for the review to be able to have my carrier speak with my hospital and determine whether they’re going to consent under the circumstances.”

She also said she was hoping to be able to settle the case without any more discovery. So I was surprised a few days later to receive another 15 demands from her – signed before the date of the conference – for authorizations to obtain medical records. I also had been led to believe by my former attorney that most if not all these authorizations had been provided to the defendants more than two years earlier. But it appeared that these renewed authorizations might assist in reaching a settlement, so I signed them and had them served.

These new demands were of a scatter-gun nature: several of them were to different doctors in the same practice groups. One of those groups was a large one that includes the doctor who had been Lisa’s primary-care physician for 30 years. This meant that unless Ms. Ryan’s staff noticed the repeated address, they were going to be requesting four or five copies of the same very large file.

And that raises another question: Why didn’t they get these files two years ago? The answer seems obvious: Because they already knew what had caused Lisa’s collapse and there had been no need to spend money – as much as 75 cents a page – on irrelevant records.

Until last year, that is, as they faced the prospect of having to settle and they began desperately looking for something – anything – that could be used to at least reduce their liability.

Hence the “final review.” And I suspect, the absence of a settlement offer when nothing could be found.

On January 26 – four months after settlement was first mentioned – I wrote to Ms. Ryan by Certified Mail, saying that if an offer had not been made by February 1, I would assume none was going to be forthcoming.

I received no response. So, as noted in the post below, the next step is a motion asking the judge to decide the case in my favor – with the presumption that Samaritan Hospital is fully liable for the horrific injuries Lisa suffered while in its care, and for her excruciatingly painful and totally preventable death.