Lisa Zenzen Baker, 1961-2003


Saturday, December 29, 2012

Protecting a source – TU style

The Times Union jumps
to placate an advertiser

By David Baker
Posted Saturday Dec. 29, 2012

If there was any need for further evidence of how eager the management of the Times Union is to guard the image of its advertisers at the expense of its editorial content it came just before Christmas – at a cost to the paper likely in the tens of thousands of dollars.

The incident was not mentioned in the paper, but was reported by Jim Romanesko, a national blogger who writes about the media.

Here’s what happened:  Back in early December, the TU published a 24-page advertising section on real estate, filled with ads from real estate brokers, banks and home builders.  In that section – under the headline “Just skip it” – were comments about Realtors from readers that had been previously solicited by reporter Kristi Bartlette.

Some of these comments were less than flattering.  One reader said, “They [the Realtors] want the fastest sale more than the highest price.” Another said: “My dad is a Realtor.  I ignore him all the time.”

One Realtor, Anthony Gucciardo of Colonie who advertisers in the TU, was so angry that he immediately canceled a $13,000 contract for ads, according to a story in the Albany edition of The Business Review.

The management of the paper wasted no time in acting to deal with the potential loss of ad revenue:  Publisher George Hearst, III interrupted a vacation to write a letter apologizing to the real estate community, saying the article was “,” and “unfortunate.”

“Our intent is to show how important Realtors and agents are to our community and how important you are to us,” he wrote. “We’ll right this wrong any way we can.”

That righting the “wrong” consisted of the paper running a full-page ad from the National Association of Realtors promoting home ownership and Realtors four times in the following week.

Two days after the supplement appeared, the TU’s top management went to the Colonie headquarters of the Greater Capital Association of Realtors for a meeting with members of the association’s board. “The real estate brokers said they wanted to see stories that portray agents favorably,” The Business Review quoted the association’s chief  executive officer as saying.  One board member wanted Hearst’s letter published as an editorial but that request was not granted.

Gucciardo told The Business Review he was satisfied with the TU's response and would continue his contract with the paper.

The cost to the Times Union of buying back its advertisers is hard to determine.  But one independent advertising agent told the Review that running a full-page ad four times in the TU could cost as much as $78,000.

Neither Hearst nor TU editor Rex Smith would comment.  Smith – who regularly boasts in his column about his paper’s fearless and unstinting efforts to uncover and report the truth – told Romanesko in an e-mail: “We’re not going to have anything to say about this one.  Sorry.”

Provided with a link to this web page with its reporting of the TU’s wholesale suppression of news about medical-malpractice lawsuits filed against its advertisers, Gucciardo wrote in an e-mail:  “It’s rather interesting, especially that I’m aware of several of those medical lawsuits.”

The Romanesko post:


Wednesday, December 19, 2012

OPINION: A newspaper indicted

A well-deserved word

By David Baker
Posted Wednesday Dec. 19, 2012

Unlike people, not all words are created equal.

Some are benign, harmless.

Others, though are strong, emotive.  Words like “liar”, to be used sparingly, only in the clearest cases of deliberate deception.

Or “corrupt.”  Certainly not a word you would expect to see applied to a media organization whose core function is the dissemination of information that is in the public interest.

But an examination of the evidence leaves little doubt that  “corrupt” is a accurate description of the management of the Capital Region’s largest newspaper.

Consider the facts:  Over the past 12 years, dozens of lawsuits alleging negligence have been filed against Capital District medical providers.  This negligence allegedly caused dozens of deaths and serious injuries.  Most of the lawsuits were aggressively defended by the providers.  Many of them eventually ended with a settlement.

But none of them have been reported by the Albany Times Union.

That doesn’t mean, though, that these providers don’t have a presence in the media.  Just the opposite, in fact; advertisements paid for by them appear every day, in print and online, presenting a rosy but false image to the public – and providing a constant stream of revenue to the paper.

And it’s not the nature of the allegations that prompts this silence; two lawsuits that alleged very similar negligence make that point.

In both cases, medical providers were accused of ignoring clear signs of a dangerous heart condition.  In both cases the patient died.  In both cases, a lawsuit was filed.

But only one of those lawsuits was reported by the Times Union, which ran three stories about it in a single week, along with an editorial.

That lawsuit was against a contractor that provided medical services to a jail.

The other one, against Albany Memorial Hospital and a doctor, was never mentioned.  Not when it was filed.  Not when it ended with a settlement.  Not when the paper reported that the doctor had lost his medical license, in part because of his negligence in the death.  Even the fact that the dead patient’s husband was a well known former elected official was not enough to overcome the TU’s practice of ignoring information of obvious public interest in order to keep the money flowing in from Northeast Health, Inc., which operates Memorial Hospital.

The only place the lawsuit was reported was in several stories on this blog.  A link to one of them, “A tale of two deaths” published in 2008, appears on the web page linked below.

Another story published here demonstrates the newspaper’s corruption even more forcefully.  It was about a lawsuit that named as defendants former gynecologist and now state prisoner Akiva Abraham, and Samaritan Hospital – which also is run by Northeast Health.

In that lawsuit, filed in 2006, Abraham was accused of removing a large amount of tissue from a woman’s breast without her knowledge or permission when he was scheduled to perform only a biopsy to determine if the tissue was cancerous.

It wasn’t.

The hospital was accused of failing to verify information submitted by Abraham, instead granting and repeatedly renewing his privileges despite considerable evidence that he was not was fit to practice – evidence which included three other malpractice lawsuits in which Abraham and the hospital were named as defendants, and the service on the hospital of a state Health Department subpoena for the medical records of two patients who had been treated by Abraham.

At the time of the disputed surgery Abraham had no malpractice insurance, which made Samaritan Hospital effectively the only defendant.  The lawsuit lasted six years, settling in July on the first day of trial.

During those six years, the Times Union repeatedly reported on Abraham’s other problems – the revocation of his medial license, his unsuccessful appeal of the revocation; his trial on arson charges – which ended with a hung jury; his subsequent conviction for insurance fraud related to the arson; and his petition for bankruptcy protection.

The TU ran at least 10 stories on all of this.

But it has never once mentioned the four lawsuits naming him and Samaritan Hospital.

Not the one that ended with a $1.6 million settlement over the death of a woman during child birth.  And not the one – now settled – that accused Samaritan Hospital of being negligent in its credentialing of Akiva Abraham.

The evidence is overwhelming.  So how does Rex Smith, the editor of the Times Union, explain his selective reporting?

He doesn’t.  Repeated requests for comment, going back to 2004, have been ignored.  The most recent request, a four-page letter sent in July 2011, argued in detail that the reporting of these lawsuits is in the public interest.  It can be downloaded from the downloads page on this blog’s sister website, a link to which appears below.

Which leads to just one conclusion:  The reason that Smith and two of the paper’s publishers have not responded with an explanation for this wholesale suppression of information is simple; there is only one.

They have been bought.  For over a decade, they have allowed their news coverage to be dictated to them by advertisers with a lot to hide.

And strong and as ugly as it is, there’s a word for that.

NEXT: A CONSPIRACY OF SILENCE   If only one Capital Region media outlet reported lawsuits against medical providers, an unhealthy alliance would collapse – but they would all lose advertising revenue.  So as the avoidable deaths and injuries continue, they take the money – and look the other way


Monday, December 17, 2012

Decision awaited

Motions in web page case go to judge

By David Baker
Posted Monday Dec. 17, 2012

The judge in Samaritan Hospital’s lawsuit against a web page that lists medical malpractice claims now has a request that he order the hospital to produce documents in the case, and a response from Samaritan objecting to the demand.

The motion before Acting Supreme Court Justice Andrew G. Ceresia to compel production of the information came after the hospital’s lawyers objected to every one of 15 demands for items related to the hospital’s claims that its reputation has been damaged by the web page.

In its response to the motion, Samaritan dropped almost all of its claims.  However, it is still seeking an injunction prohibiting the use of the Internet domain name ‘northeasthealthclaims’ and a logo, as well as its legal fees.

Ceresia has 60 days to issue a decision.  It will be his second in this case; in June he denied a motion to recuse himself because of his prior employment with a law firm that represented Samaritan Hospital, instead granting a formal request by the hospital that he remain on the case.


Sunday, December 09, 2012

Reduced lawsuit

Hospital drops most of its
claims against web page

By David Baker
Posted Sunday Dec. 9, 2012

A lawsuit in which Samaritan Hospital is claiming damages and an injunction against a web page that reports details of medical malpractice lawsuits is now a lot smaller following a demand to the hospital for records documenting the amount and cause of its alleged losses.

In a response served this week to a motion for a court order for the records, lawyers for the hospital say all of the demanded records are irrelevant.

They also say they are dropping most of their claims.

“As matter of practicality and to permit this case to be trial ready, plaintiffs hereby elect not to seek the following possible damages from defendant:  injury to plaintiff’s reputation or good will, lost profits, expenses of preventing customers from being deceived, or the cost of future advertising.  The only actual money damages plaintiffs will seek consist of the profits, if any, [defendant] has made by the use of the website or logo, and counsel fees.”

The logo referred to is one used by Northeast Health, Inc., which was displayed on the disputed web site from January 2011 until February of this year.  The placing of logos of companies or organizations is common on many news-reporting web pages and is allowed under the fair-use principle.

In the lawsuit, the hospital and its parent company had sought an injunction prohibiting the use of the logo and the Internet domain name ‘,’ as well as money for alleged damage to their reputations.

In order to prevail, the plaintiffs would have had to prove that their alleged losses were caused specifically by the use of the domain name and logo, rather than by the stories on the web page describing previously unreported lawsuits alleging medical malpractice and negligence filed against them and other providers.

The claims now dropped risked the hospital being challenged on an apparent attempt to stifle free speech rights protected by the First Amendment, and those provided by a New York law that specifically protects the reporting of legal proceedings.

The two motions will go before Acting Supreme Court Justice Andrew G. Ceresia, who will decide if the hospital should have its legal fees paid by the defendant in a case it brought, but which it has now all but discontinued.


Wednesday, December 05, 2012

Judicial conduct

Judge may be shielding 
hospital from bad news

By David Baker
Posted Wednesday Dec. 5, 2012

The apparent agreement between Capital Region medical providers under which the area’s news organizations have kept dozens of medical malpractice lawsuits filed against advertisers out of public view may have another participant.

A state Supreme Court judge.

The judge is Stephen A. Ferradino of Saratoga County.  Back in July, a lawsuit against a former gynecologist and Samaritan Hospital was settled in Ferradino’s court on the first day of trial.

In the lawsuit, Susan Stalker of Waterford alleged that Akiva Abraham had left her disfigured when he performed an unnecessary surgery on her breast without her knowledge or consent.  The scheduled procedure, she alleged, was a biopsy, but once she was sedated Abraham removed a large amount of tissue, which later tests showed to be non-cancerous.

The suit was filed in 2006.  It also alleged that Samaritan Hospital was negligent in granting and repeatedly renewing Abraham’s privileges, despite considerable evidence that he was medical and morally unfit to practice.

Finally, after numerous legal maneuvers – including an appeals court decision in 2010 – the case was set for trial.  By this time Abraham has lost his medical license on 34 counts of misconduct and gross misconduct, had filed for bankruptcy and was in prison for an unrelated conviction of insurance fraud stemming from an arson.

In the week before the trial, Stalker’s lawyers filed motions asking Ferradino to issue subpoenas for certified copies of three other malpractice lawsuits that named Abraham and Samaritan Hospital as defendants, and for copies of state Health Department records.  They also wanted to subpoena the testimony of two Samaritan Hospital doctors.

Samaritan’s lawyer’s opposed the motions and also filed their own motions, asking the judge to exclude questions about the prior lawsuits and about Abraham’s medical-license revocation. They also wanted a two-part trial, first on Abraham’s alleged malpractice, with a second  part – on Samaritan’s alleged negligent credentialing  – to take place only if Abraham was found to have committed malpractice.

These motions were filed in July and posted on the Saratoga County clerk’s web page, from which they can be viewed or download.

Ferradino’s decisions on these motions would have had a major impact on the way the case was presented to a jury.  But today, four months after the lawsuit ended, those decisions – and a further motion apparently submitted on the first day of trial – have not been posted on the county clerk’s web site.

The filing and therefore the public posting of decisions is required by a section of the Civil Practice Law and Rules.  Section 2220 (a) says:

“An order determining a motion shall be entered and filed in  the office of  the  clerk of the court where the action is triable, and all papers used on the motion and any opinion or memorandum  in  writing shall be filed with that clerk unless the order dispenses with such filing.”

In addition, most orders signed by judges are sent to the party who won the decision and include the following statement:

“The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. You are not relieved from the applicable provisions of that section with respect to filing, entry and notice of entry.”

It’s  that “entry” – the filing and proof of filing of Ferradino’s decisions on those motions – that still has not been made.

So did Ferradino dispense with the filing requirements?  And if so, why?

In a letter to Ferradino dated November 21, this page asked about the un filed decisions.  There has been no response.

Then there are the motion papers that were submitted by the attorneys.  These also used to be filed by the lawyers but under an order from the state chief administrative judge, original motions and supporting papers are now to be sent by the judge’s chambers directly to the county clerk for filing.

In the Stalker vs. Abraham and Samaritan Hospital lawsuit, that also has not been done.  The last item on the clerk’s web site for the case is a receipt for a motion fee dated July 27 – three days before the trial started.

Meanwhile, an entry on the court system’s web site added on July 31 – the day after the trial started – says that the case was settled before trial, and that there is a motion pending.

So what was the request in that last motion?  Was it for a protective order?  If so, who or what would it protect – other than Samaritan Hospital’s reputation?  And shouldn’t a motion requesting a protective order, and the order itself, be filed and therefore public?

There are no answers to these questions because Justice Ferradino has not  responded to the November 21 letter asking about the missing documents.

THE ALLEGATION of negligent credentialing is relatively rare but despite that, the Stalker case lasted over six years without ever being mentioned by the area’s newspapers, even as Times Union reporter Robert Gavin wrote at least 10 stories about Abraham’s other problems.

Gavin, the paper’s legal correspondent, often writes about decisions from the Third Department Appellate Division but he somehow missed the court’s ruling in 2010 on an appeal of one of Ferradino’s decisions in the Stalker case.  He also evidently thinks that the possible existence of a secret order that might have been granted solely to protect the reputation of a hospital not something that would raise serious questions about the conduct of a supreme court judge.  He was informed of it in an e-mail back in August but consistent with his paper’s apparent – and undenied – policy of suppressing any news that could hurt hospital advertisers, he has neither written about it nor asked for more information.

There are also questions of public interest about the settlement of this case. Abraham had no malpractice insurance.  Samaritan had coverage, but it’s likely that the insurance carrier would refuse to pay for a wilful failure over several years to verify that Abraham was fit to practice.  If so, the money for a settlement would have to come from Samaritan’s own funds - some of which are from federal and other public monies.

Is that what happened?  If so, how much will the public ultimately pay for this hospital’s negligence?

These are questions a newspaper should be asking.  But not Albany’s newspapers.  Instead,  they have yet to report that the suit ever existed.

The exclusive first story about the Stalker case is HERE

Several follow-up stories appeared on this page.  They can be found under the links for July and August 2012 near the bottom of the list of archived items on the right.


Sunday, December 02, 2012