Lisa Zenzen Baker, 1961-2003


Monday, November 28, 2011

Hospital lawsuit

Samaritan Hospital lawsuit
starts exchange of documents

By David Baker
Posted Monday Nov. 28, 2011

The demands for disclosure in the lawsuit filed by Samaritan Hospital that seeks an injunction stopping the use of an Internet domain name and compensation for alleged damage to its reputation, and a counterclaim alleging that the hospital withheld medical records, has begun.

Last week, attorneys for the hospital served papers demanding information and the production of documents. Responses and similar demands will shortly be served on the hospital’s lawyers.

Samaritan’s lawyers also served a reply to the counterclaim against the hospital. In addition to the standard denials, this document makes an interesting statement: In an ‘affirmative defense’ it blames other – unnamed – parties who it claims are beyond the hospital’s control for any alleged withholding of pages from Lisa’s medical record.

Samaritan Hospital is not the only participant who has said, “anyone but me.” During a conference in 2007 in front of the judge in the case over Lisa’s death, a lawyer for the hospital suggested that if the medical record was incomplete it wouldn’t be her responsibility. Asked by the judge if there was anything in the medical record that hadn’t been turned over, Kathleen Ryan, according to a transcript, said: “Not that I’m aware of.” A moment later she added: “I mean, I’ve never had the original, so I can’t make representations one way or another.”

Another attorney, the one representing the doctor, said that if records were missing, it was the hospital that was to blame.

“It’s … the doctor is a consulting physician,” he said, according to the transcript. “He doesn’t maintain his own records. It’s not like he had office visits with this patient. It’s a hospital record.”

The physician’s consultation report that was included in a second copy of the records wasn’t the only document that was missing from the first copy. A page of a ‘medical administration kardex,’ and some nursing notes – both relating to the critical hours just prior to Lisa’s injuries – were also not in the first copy but were later produced by the hospital.

But no further reports by the doctor who was consulting on her diabetes management were in the second copy of the records or have been produced since, even though he continued to treat her for three days after she was found at 2 a.m. with no pulse or respiration, and with a blood/glucose level near zero.

The management of Samaritan Hospital/Northeast Health had a choice just after it filed – but then didn’t immediately serve – its lawsuit claiming defamation. It could have agreed to a discussion of suggestions made in a letter that was mailed to the company and to the publisher of the Albany Times Union on the same day that, without any prior contact, the lawsuit was filed.

This letter made a detailed argument that the company’s policy of fighting all claims resulting from a death or injury even when it knew it was liable is against the public interest, benefiting only the lawyers on both sides and a media that, while ignoring the lawsuits for more than a decade, has received significant revenue from the health providers’ advertising.

A better way, the letter said, would be to promptly acknowledge errors that cause death or injury and, where appropriate, offer compensation. Medical institutions in other parts of the country have started doing this and have seen a big drop in the number of lawsuits alleging negligence. If Northeast Health and the Times Union agreed with the suggestions in the letter, the website listing details of previously unreported lawsuits filed against it would not be necessary as there would be only a very small number of such claims, all in cases where the hospital genuinely believed it was not responsible, and these claims and their outcome would be reported by the media as a matter of public interest.

But no acknowledgment was received from the Times Union or from the management of Samaritan Hospital, or to a follow-up communication to the lawyer who filed the lawsuit. Six weeks later, an affidavit acknowledging service and a counterclaim were filed and served, thus forcing Northeast Health to back up its claim that it is being defamed, and to confront the allegation that during the case over Lisa’s death highly relevant documents were withheld from a medical record under its control.

So now, whether it’s under the domain name ‘northeast health claims‘ or another Internet address, the page listing details of lawsuits against Samaritan and other hospitals in the area will remain on the Web, and will in time be brought to the attention of a public in whose interest it is to know about allegations of preventable deaths and injuries in Capital Region hospitals, and that the area’s media has chosen not to report them.


Some of the legal papers in Samaritan Hospital vs. David F. Baker are now available online. To view or download them, click HERE


NEXT: A patient sues Albany Memorial Hospital after oxygen caught fire during a surgery.