Lisa Zenzen Baker, 1961-2003


Sunday, May 27, 2012

Decisions pending

 Recusal and negligent credentialing
motions waiting for judges' decisions

By David Baker
Posted Sunday May 27, 2012

The judge assigned to the lawsuit filed by Samaritan Hospital against a web page that lists unreported medical malpractice claims has two motions awaiting his decision.

One motion asks Acting Supreme Court Judge Andrew Ceresia to throw out a counterclaim alleging that the hospital withheld medical records during an earlier medical malpractice lawsuit over the death, in 2003, of Lisa Zenzen Baker.

The second motion asks him to remove himself from the case because he was formerly employed by the law firm that represented the hospital in the earlier malpractice case  – the actions of which are an issue in the current lawsuit.

The motion for dismissal was filed by the hospital in February. The recusal motion was filed in early March.

Motions are generally expected to be decided within 60 days; a motion for recusal has to be decided before any other pending motions. This means both motions are now 78 days past their return date.

The motion for recusal involves the judge asking himself two questions.  1: Can I be fair and impartial in deciding the questions that will be presented by this case?  And 2, if so, will there be any appearance of impartially if I keep the case?

Deciding the first question doesn’t involve researching and considering any law; it is simply a matter of the judge examining his own conscience.  And answering the second question is a simple matter. The relevant rule – 22 NYCRR 100.3 (E)(1) – states: “…a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned.”

Ceresia worked at the hospital’s law firm.  In its response to the allegation that it withheld documents, the hospital has stated that it relied on the advice of its legal representatives.  Therefore, the actions of its counselors – Ceresia’s former employers – are matters on which Ceresia may rule if he chooses not to remove himself from this case.

And now, more than two months after the motions were filed, the case is on hold.  And a response from Samaritan to a list of questions that should have been provided by the end of January was two weeks overdue in mid February when the hospital filed its motion to dismiss the counterclaims. This stopped all discovery – including answers which might be used in opposing the dismissal motion.

A request in a reply to Samaritan’s motion that Ceresia delay a ruling on the motion for dismissal and order the hospital to provide those responses also is awaiting his decision.

Negligent-credentialing case awaits appeals court ruling

Meanwhile, the Samaritan Hospital negligent-credentialing lawsuit remains on hold pending rulings from the Appellate Division of state Supreme Court. Both sides – the hospital and lawyers for Susan Stalker – have appealed parts of a December 2011 decision by state Supreme Court Justice Stephen A. Ferradino.

In his decision, Ferradino ruled that Samaritan Hospital and its staff could not be held liable for the actions of former gynecologist Akiva Abraham. Abraham – who has just started serving a 4-to 12-year sentence in state prison for insurance fraud related to a fire at a building he owned – is accused of leaving Stalker’s breast disfigured by performing an unnecessary surgery in Samaritan Hospital in 2004 without authorization from either Stalker or the hospital.

The hospital is appealing Ferradino’s ruling that there is a case for trial on Stalker’s allegation that Samaritan Hospital was negligent in repeatedly granting Abraham privileges when it knew or should have known that he was not fit to practice medicine.

Stalker’s case – in which Abraham, without any assets or malpractice insurance, is still a defendant – is set for trial in Saratoga County at the end of July.

Despite its unusual claim, the 2006 lawsuit has never been mentioned by the area’s newspapers, even as over the past eight years they have reported on his many other problems. These include the revocation in 2005 of his medical license; his conviction in 2010 of insurance fraud;  his 2011 bankruptcy filing and, in April, the appeals court decision that affirmed his fraud conviction and sent him to prison.


Follow this and many medical malpractice lawsuits ignored by the area’s newspapers on Twitter: @answersforlisa