Lisa Zenzen Baker, 1961-2003


Wednesday, July 25, 2012

Decisions pending

Hospital defends disgraced
former doctor to save itself

By David Baker
Posted Wednesday July 25, 2012

The lawsuit in which it is alleged that former gynecologist Akiva Abraham perform an unnecessary and unauthorized surgery on Susan Stalker in 2004, and Samaritan Hospital in Troy is alleged to have been negligent when it granted privileges to Abraham is scheduled to go to trial next week, but how it will proceed will depend on pending decisions by both the judge and an appeals court.

The first matter to be decided is an appeal by Samaritan of a ruling by state Supreme Court Judge Stephen Ferradino that there are questions of fact to be determined by a jury on whether the hospital was negligent.  If the Appellate Division reverses Ferradino's decision, the trial, if not delayed by a further appeal to the Court of Appeals, would be only on the allegations against Abraham.

A second matter pending before the appellate justices is Stalker's appeal of Ferradino's ruling that the hospital and its nursing staff cannot be held liable for the actions of an independent physician.

Also pending are decisions by Ferradino on motions filed by both Stalker and the hospital.  Stalker's attorneys want to obtain certified copies of three previous medical malpractice lawsuits that named both Abraham and Samaritan Hospital as defendants, and copies of state Health Department records.   They also want to subpoena two doctors, Melody Bruce and Edward Jacobs, to testify. The hospital is opposing the motions.

Samaritan Hospital is asking Ferradino to exclude any questions or testimony about the three prior medical malpractice lawsuits against Abraham and the hospital, and about the 2005 revocation of his medical license.  It is also asking the judge to run the trial in two parts, first on the allegations against Abraham and then -- if the former doctor is found to have been negligent -- on the negligent-credentialing allegations against the hospital.

In an earlier motion, Stalker's lawyers had asked Ferradino to allow two separate  trials, one for the claims against the hospital and later, another for the case against Abraham. This was after Abraham filed for backrupcy protection, a move that placed an automatic hold on the malpractice case.

But Ferradino denied the request, saying that the two cases are "intertwined" because, he said, if the jury finds that Abraham was not negligent, Stalker has no claim against the hospital.

Now it's the hospital that wants a "bifurcated' trial, with the case against Abraham being heard first, and then -- and only if he is found liable -- the trial continuing on the allegations against Samaritan.

Meanwhile, Abraham -- who is serving a 4 1/2- to 12-year prison sentence for an unrelated conviction of insurance fraud -- is scheduled to be brought under court order to testify at his trial.  He had no malpractice insurance at the time of Stalker's surgery; he apparently has no legal representation and has made no applications to the court.  This has forced Samaritan to, indirectly, defend the disgraced former doctor as its only way to avoid a trial on the allegations that it granted him privileges when it knew or should have known that he was medically and morally unfit to practice.

This case is now six years old and has generated a large public file.  And for most of that time Samaritan Hospital has been able to fight the lawsuit out of public view, knowing that despite all the stories about Abraham's other problems, the newspapers would not report the allegations against it.

But now, with this web page following the case and a trial looming, the hospital has two only ways  of avoiding days of public testimony about the way it checks the backgrounds of doctors applying for privileges. One is to to try and weaken the case against the former doctor, which it is doing now.

The other, if Abraham loses, is a settlement, six years and huge legal bills on both sides after the case was filed.

But even then the big file in the clerk's office will still be there, a permanent and reportable record of a case the hospital thought would never see the light of day.

Read the exclusive story on the Stalker lawsuit HERE