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Amlung v Feldstein 2010 NY Slip Op 33087(U) October 22, 2010 Supreme Court, New York County Docket Number: 100461/2009 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6

-Indux No. 1 0046112009

WILLIAM AMLUNC) and SUSAN AMLUNG,

Plaintiffs, -against-

v

JULIE FELDSTEIN, M.D., RICHARD WONO, M.D., DENNIS KRAUS, M.D., ANDREA PUSIC,M.D., and MEMORIAL HOSPITAL FOR CANCER AND ALLIED DISEASES,

FCLEO
OCT 2 9 201p1

JOAN B LOBIS, J.S.C.: .

Defendants Julie Fcldstcin, M,D.,Richard Wong, M.D.,Dennis b u s , M.D., Andrea

Pusic, M.D., and Memorial Hospitd for Cancer and Allied D s a e ("Memorial") iess move, by order
to ahow cause pursuant to C.P.L.R. 3 103, for a protectiveorderprecludingplaintiffs from deposing 8
Antonio Macias, M.D., and fiom obtaining certain discovery demands made i a Demand for n

Discovery and Inspection dated June 7,201 0. For the reasons stated below, the motion is denied.

This action, sounding in medical malpractice, concerns a misinterpreted biopsy taken

b m tissue in William Amlung'sjaw that resulted i unnecessary surgery. On or about September n
20, 2007, Dr. Fcldstcin, director of Memorial's Immunohistochemistry laboratory, examined a

biopsy of tissue taken from Mr.Amlung's jaw and determined that it manifested squamous ccll carcinoma. Mr. Amlung continued to visit with Dr. Kraus and Dr, Wong and underwent radiological
studies of his left jaw, On November 14,2007, Dr. Wong performed neck dissection surgery and

a tracheostomy and removed a portion of the lower jaw. Dr. Pustic then performed a flap

reconstruction procedure whereby she rumoved skin f o Mr. Amlung's chest and used it to cover rm

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the area around his lowerjaw. Specimens fromthe surgery were sent to Memorial's Department of
Pathology. According to the pathology report from November 2007, all specimens were negative

for carcinoma,but positive for a bacterial infection. On March 11, 2009, after the lawsuit was
commenced, the biopsy report WBS amended, diagnosing the specimen as manifesting no evidence

of malignancy. Plaintiffs allege that the surgery was unnecessary and has left Mr. Amlung with
permanent injuries including deformity, difficulty eating and speaking, lack of energy, weight loss,

and severe diarrhea.

Plaintiffs commenced this action on or about January 13,2009, by the filing of a summons and complaint. Defendants answcrcd by separate answers in February 2009. In their
ans~cta, all

defendants stated that they "rcndcrcd cartain professional care . . . in accordance wt ih

acceptable medical standards of due care and begs leave to refer all questions of fact to the trier of

fact[.]" All defendants assert C.P.L.R.0 1600, the apportionmcnt of liability statute for multiple
tortfcason, as an affirmative defense. On or about November 9,2009, after both plaintiffs were

nwr deposed, Dr. Feldstein served an amcndcd a s e . She excised the statement that she acted "in
accordance with accepted medical standardsof due care'' and admitted to misinterepting the biopsy. Dr. Feldstein continues to assert C,P.L.R. 8 1600 aa an affirmative defense. No other dofondants

served amended answers.

On March 23,2010, the parties appeared for a compliance conference and entered
into a so-ordered stipulation whereby they agreed to a schedule for D .Fcldstain's and D .Wong's r r depositions. Dr. Feldstein's deposition was held on May 28, 2010. During the deposition, the

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partim contacted chambers for a ruling. Counsel for plaintiff attempted to ask D .Feldsteh about r

Memorial's policies and procedures in place at tho time of her alleged malpractice "regarding how
Ipathology] slides were prepared." Defense counsel objected on the grounds that Dr. Feldstein and

Memorial,as her employer, had previously conceded that there had been a departure so the question
was irrelevant.

The court, citing the Uniform Rules for Conduct of Depositions, ruled that the

question was not improper and that there was no reason to limit plaintifl's discovery on whether defendants committed malpractice. Over the c o m e of the deposition, Dr,Feldstein revealed that biopsies are first reviewed by a pathology fellow. The fellow gives an initial impression of it. The

r impression is either handwritten or typed into a computer system called Co-Path. D .Fcldstcin also
testified that she doubted whether she had actually reviewed the first biopsy report.

On Junu 7, 2010, plaintiffs sent a letter dated June 7, requesting a deposition of
Antonio Macias, M.D., the pathology fellow on staff in September 2007, who first reviewed the

specimen and gave an Mtial impression of it. On the same date, pldntiffs sewed a Notice of Discovery and Inspection, seeking the table of contents for rules and rcgulatlons of Memorial's pathology department; the handwritten impressionwritten by Dr. Macias "and/orany other personnel interpreting that biopsy;" emails between D .Wong and Dr. Feldstein regarding the M r h 2009 r ac amendment to the pathology report of the biopsy; and all biopsy records on the Co-Pathsystem.

In support of their motion for a protective order, defendants argue that discovery should be limited to what will actually be at issue at trial and that all other discovery is not material and necessary. Defendants contend that Dr. Feldstein has admitted liability in her a s e . Thw, nwr

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discovery should be limited to determining causation and plaintiffs' damages.

In opposition, plaintiffs argue that Dr. Feldstein has never formally admitted that she
was negligent.

They point out that none of the other defendant's have admitted negligence; and that

the extent of each defendant's negligence is still an iasue. They further contend that the discovery

that they requested i necessary, because it may reveal grounds for punitive damages. Plaintiffsalso s

assert that Mr.Amlung has an absolute right to his medical records. Annexed to their opposition

rm papers, plaintiffs also attach an affidavit f o Ernest Atlas, M.D., who is board certified in internal

r medicine and infectious diseases. D . Atlas asserts that the discovery requested is relevant to
causation. Hc asserts that any description of the biopsy could enable him to determine the extent of

M .Amlung's bacterial infection in September2007, so as to help him discern whether the infection r
could have been treated immediately with antibiotics or with a less extensive surgcry than Mr.

Amlung underwent.

In reply, defendants attach amended answers f o Dr. Feldstein and Memorial. Dr. rm
Feldstein she admits that her misinterpretation of the biopsy was a departure from the standard of care. Memorial continues to maintain that it "rcndcred certain professional care .. . in accordance

wt acceptable medical standards of due care[.]*' In one paragraph, however, it asserts that Dr. ih
Feldstcin departed from the standard of care. Neither amended answer asserts C.P.L.R.6 1600 as
an affirmative defense. Defendants also dispute plaintiffs' claim that the biopsy records could assist

i dctermldngcawation,although they do so without an expert affidavit. Defendantsalso assert that n
punitive damages am rarely granted in medical malpractice w a s .

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ORDERED that within fifteen ( 1 5), days defendants respond to plaintiffs' letter dated
June 7,2010 requesting a deposition of Antonio Macias, M.D., and it is further

ORDERED that thc parties shall appear for a compliance conference on Pecembcr
7, 2010 at 9:30 a.m.

Dated: October

2 2 , 2 0 IO

1
JOAN B. OBIS, J.S.C.

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