Courts and Law Brooklyn Boro

Brooklyn judge sanctions hospital and law firm for obstruction

May 22, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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Brooklyn Supreme Court Justice Laura Jacobson doubled down on her decision to sanction a law firm and its hospital client $15,000 for willfully obstructing discovery in a medical malpractice suit. Following a sanctions hearing, Jacobson found evidence indicating that New York Presbyterian Hospital and its counsel, Martin Clearwater & Bell, engaged in “willful and contumacious conduct.”

The underlying malpractice suit was brought by Andre Wright, via his court-appointed guardian Armena Gayle, for injuries sustained following eye surgery. Wright, a diabetic with a heart condition, suffered a major stroke after undergoing retinal eye surgery. According to the suit, Wright sustained brain injury, is unable to walk and cannot fully communicate.

Wright, the plaintiff, alleges that the hospital inappropriately placed him under general anesthesia for seven hours, which, the suit contends, was medically inappropriate given Wright’s heart issue and previously recorded diabetic condition. Wright noted that the hospital informed him that he would be given local anesthesia—a less taxing form of anesthesia localized to the area of surgery—and Wright’s internist testified that the hospital’s surgery booking staff partially filled out paperwork indicating local over general anesthesia. 

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Wright and his attorney attempted, via discovery, to obtain a copy of the initial paperwork for Wright’s surgery as well as copies of other medical clearance forms used by the hospital for eye surgeries. After a “long and torturous” discovery process, as noted by Jacobson, the hospital and its counsel failed to comply with the discovery request and court orders compelling information to be provided. In one instance, Wright’s attorney requested information regarding surgery booker Marcia Barnaby, who was on staff at the time of Wright’s procedure. The hospital claimed that Barnaby did not work for the hospital and in fact was never an employee of the hospital. A Google search conducted by Wright revealed that as of 2012, Barnaby was still a surgical booker at the hospital.

It is not often that courts impose the “drastic remedy” of applying sanctions during the discovery phase of a trial, Jacobson cautioned. Such measures can be imposed, however, where a party’s “failure to comply is clearly willful and contumacious.” In Wright’s case, Jacobson found that the “willful and contumacious” conduct of the hospital and its counsel can be “inferred from the defendant’s continuous failure to comply with discovery demands and this court’s orders.”  

The hospital countered that it did not obstruct discovery and that it made good faith efforts to identify “low-level clerical personnel” and that it had successfully complied with the discovery request. Jacobson was not amused by the eventual full compliance and found the “piecemeal manner” in which information was provided to be “inexcusable and could only have been designed to conceal evidence and delay [the suit].” Convinced “that the defendants tactics…were meant to…complicate [the] proceedings,” Jacobson ordered that the hospital and its attorneys pay Wright’s team $10,000 for having to bring the motion to compel discovery and an additional $5,000 to be sent to the Lawyers’ Fund for Client Protection of the State of New York.


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