| D'Adamo v Saint Dominic's Home |
| 2011 NY Slip Op 06469 [87 AD3d 966] |
| September 13, 2011 |
| Appellate Division, Second Department |
| Joan D'Adamo, as Guardian of Steven Oscar Herrera,Appellant, v Saint Dominic's Home, Respondent. |
—[*1] Biedermann, Reif, Hoenig & Ruff, P.C., New York, N.Y. (Nicole A. Sullivan and Philip C.Semprevivo, Jr., of counsel), for respondent.
In an action to recover damages for negligence and medical malpractice, the plaintiff appeals,as limited by her brief, from so much of an order of the Supreme Court, Rockland County(Garvey, J.), entered December 28, 2010, as denied that branch of her motion which was for aprotective order pursuant to CPLR 3103 and, in effect, denied that branch of her motion whichwas to vacate the defendant's notice of a physical examination pursuant to 22 NYCRR 202.17.By decision and order on motion dated February 10, 2011, this Court granted the plaintiff'smotion for a stay of the independent medical examination of Steven Oscar Herrera pending thehearing and determination of this appeal.
Ordered that the appeal from so much of the order as, in effect, denied that branch of theplaintiff's motion which was to vacate the defendant's notice of a physical examination pursuantto 22 NYCRR 202.17 is dismissed; and it is further,
Ordered that the order is reversed insofar as reviewed, on the facts and in the exercise ofdiscretion, that branch of the plaintiff's motion which was for a protective order preventing thedefendant's medical expert from performing any invasive procedures, including but not limited toa rigid sigmoidoscopy, on Steven Oscar Herrera during the physical examination is granted; andit is further,
Ordered that one bill of costs is awarded to the plaintiff.
From June 2003 through October 7, 2004, Steven Oscar Herrera, an individual with mentalretardation, cerebral palsy, and autism, was a resident of a group home owned and operated bythe defendant.
On October 7, 2004, Herrera, then 19 years old, was rushed from the defendant's group hometo Jacobi Medical Center, where he underwent exploratory laparotomy, resection of two-thirds ofthe distal portion of his tranverse colon, and a colostomy for fecal impaction and a "dead colon."
The plaintiff, Joan D'Adamo, as Herrera's guardian, commenced this action against [*2]the defendant to recover damages for negligence and medicalmalpractice. On December 18, 2007, counsel for the parties appeared for a preliminaryconference. According to the preliminary conference order, signed by both counsel, the physicalexamination of Herrera, by a doctor of the defendant's choosing, would be performed within 45days of completion of the plaintiff's deposition.
By letter dated October 5, 2010, the defendant's attorney advised counsel for the plaintiff thatthe defendant designated Dr. Bruce S. Gingold, of Manhattan Colorectal Surgeons, to perform aphysical examination of Herrera. In a letter dated October 6, 2010, counsel for the plaintiffrejected the defendant's notice, inter alia, on the basis that it was not in the interest of justice for aphysical examination to be performed on Herrera, relying on 22 NYCRR 202.17. The plaintiff'scounsel contended that this would be so since the defendant's expert would not be permitted toperform any invasive studies on Herrera, who was not communicative. In any event, theplaintiff's counsel pointed out that a significant amount of Herrera's colon had been removed and,therefore, the defendant's expert should rely solely on a review of Herrera's medical records as anexamination would be pointless.
The plaintiff then moved to vacate the defendant's notice of physical examination pursuant to22 NYCRR 202.17 (a) or, in the alternative, for a protective order pursuant to CPLR 3103 (a).
In opposition, the defendant argued that it was entitled to a physical examination of Herrerasince his physical condition had been placed into controversy. Moreover, it contended that itwould be placed at a disadvantage in defending itself in this action if it was deprived of theopportunity to conduct such an examination by a doctor of its choosing since the plaintiff allegedthat Herrera would require a colostomy bag for the rest of his life, establishing the need for anexamination by Dr. Gingold. In addition, it claimed that an examination was necessary given theplaintiff's allegations of surgical scarring and edema to all of Herrera's extremities as a result ofthe defendant's alleged negligence.
In her attorney's reply affirmation, the plaintiff agreed to produce Herrera for the physicalexamination in light of the defendant's willingness to pay all of the costs associated withtransporting Herrera to and from Dr. Gingold's office, and any required supervision of Herrerafor the physical examination. However, the plaintiff indicated that she would object to anyinvasive procedures such as a colonoscopy, any radiological studies, or the removal of Herrera'scolostomy bag during Dr. Gingold's examination.
In an order dated November 16, 2010, the Supreme Court requested a sworn statement fromDr. Gingold detailing the procedures to be performed during the examination. The SupremeCourt provided that the plaintiff would be allowed to respond.
Dr. Gingold submitted an affidavit in response to the Supreme Court's order, explaining thathe intended to perform a rigid sigmoidoscopy. He contended that the procedure would "take afew minutes and [wa]s not dangerous or painful" and there had been no complications from "anystraightforward sigmoidoscopies [he] ha[d] performed." He did not anticipate the use ofanesthesia. In the event that Herrera's rectum had to be stretched digitally, Dr. Gingold stated thathe would apply topical anesthesia. Dr. Gingold opined that, since Herrera had a limited amountof sigmoid and rectum remaining, it was unlikely that Herrera would feel any cramps followingthe procedure.
Dr. Gingold also intended to examine Herrera's abdomen and the colostomy bag to determineif any issues were present which would prevent reversal of the colostomy or resolution of theirritation in the vicinity of the colostomy as testified to by D'Adamo during her deposition.
In response, the plaintiff submitted an affirmation from Dr. Jeffrey Freed, who explained thata rigid sigmoidoscopy involves placing a rigid instrument in a person's rectum up to the sigmoidcolon. He contended that "[a]s with any surgical procedure, there are risks and such a procedurecan not be classified as being 'not dangerous,' as indicated by [Dr. Gingold]." He also [*3]stated that there was a risk of perforation to the remaining colonand rectum if there was any movement by Herrera, which was likely given Herrera's inability tocomprehend or follow commands to remain still.
Dr. Gingold then submitted a supplemental affidavit in which he acknowledged that therewas a chance Herrera would move during the procedure. Given that possibility, Dr. Gingoldwould first examine Herrera digitally and would only perform the rigid sigmoidoscopy, with asmaller pediatric sigmoidoscope and without sedation, if Herrera tolerated the digitalexamination. If Herrera did not tolerate the digital examination, Dr. Gingold could sedate Herreraintravenously during the procedure for a total of approximately two minutes.
Upon receiving the additional submissions, the Supreme Court, inter alia, denied theplaintiff's motion and directed Herrera to undergo the physical examination as noticed by thedefendant and as outlined in the affidavits of Dr. Gingold. The plaintiff appeals.
With respect to the denial of that branch of the plaintiff's motion which was for a protectiveorder, the Supreme Court improvidently exercised its discretion. While CPLR 3101 (a) providesthat "[t]here shall be full disclosure of all matter material and necessary in the prosecution. . . of an action," "the principle of 'full disclosure' does not give a party the right touncontrolled and unfettered disclosure" (JFK Family Ltd. Partnership v Millbrae Natural Gas Dev. Fund 2005,L.P., 83 AD3d 899, 900 [2011]; see Buxbaum v Castro, 82 AD3d 925 [2011]; Peluso v Red Rose Rest., Inc., 78AD3d 802 [2010]; Foster v HerbertSlepoy Corp., 74 AD3d 1139 [2010]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007]).
When a particular discovery demand is inappropriate, the court may "make a protectiveorder" with respect to that demand (CPLR 3103 [a]). "Such order shall be designed to preventunreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to anyperson" (id.).
Even though a defendant is entitled to thoroughly examine a plaintiff who puts his or herphysical and/or mental condition in issue (see Louis v Cohen, 221 AD2d 509 [1995];Healy v Deepdale Gen. Hosp., 145 AD2d 413 [1988]), a plaintiff may not be compelledto undergo objective testing procedures when it is established that the tests are invasive, painfuland harmful to the person's health (seeRosario v BNS Bldgs., LLC, 67 AD3d 984 [2009]; Santero v Kotwal, 4 AD3d 464, 465 [2004]; Bobka vMann, 308 AD2d 497, 498 [2003]; Marino v Pena, 211 AD2d 668, 668-669 [1995];Lapera v Shafron, 159 AD2d 614 [1990]).
Here, the plaintiff met her initial burden of showing that the procedures which Dr. Gingoldintended to perform on Herrera were potentially harmful and clearly invasive (see Rosario v BNS Bldgs., LLC, 67AD3d 984 [2009]; Santero v Kotwal, 4 AD3d at 465; Bobka v Mann, 308AD2d at 498; Marino v Pena, 211 AD2d at 668-669; Lefkowitz v Nassau CountyMed. Ctr., 94 AD2d 18, 21 [1983]). In response, the defendant failed to establish that theintended procedures would not be harmful to Herrera (see Marino v Pena, 211 AD2d 668[1995]; Lefkowitz v Nassau County Med. Ctr., 94 AD2d 18 [1983]). Accordingly, theSupreme Court should have granted that branch of the plaintiff's motion which sought aprotective order prohibiting the defendant's expert, Dr. Gingold, from performing invasiveprocedures, including, but not limited to, a rigid sigmoidoscopy, on Herrera during the defensephysical examination.
In her reply affirmation, the plaintiff agreed to produce Herrera for a physical examination byDr. Gingold, in effect, on condition that the defendant pay all of the costs associated with thetransport of Herrera to and from the defendant's designated physician, and any requiredsupervision of Herrera for the physical examination, and upon the further condition that noinvasive procedures be performed upon Herrera. In the order appealed from, the Supreme Courtdirected the defendant to pay those costs. Accordingly, in light of our determination above, thatpart of the order which, in effect, denied that branch of the plaintiff's motion which sought anorder vacating the defendant's notice seeking a physical examination of Herrera has beenrendered academic and therefore the appeal therefrom must be dismissed. Rivera, J.P., Skelos,Hall and Austin, JJ., concur.