The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is another motion to compel by plaintiff (cf. Docket Nos. 38, 59 (Report & Recommendation), 76 (Order adopting Report & Recommendation)), this time seeking defendant Dr. Gwendolyn Cole-Hoover to answer questions in a deposition (Docket No. 116*fn1 , Sept. 19, 2006). This motion seeks Dr. Cole-Hoover's answers to questions regarding the treatment of plaintiff (Docket No. 115, Pl. Atty. Affirm. ¶ 6, Exs. A-E). During Dr. Cole-Hoover's deposition, she testified repeatedly that she did not recall plaintiff.
Following a status conference with parties, the Court issued a briefing schedule for this motion, with responses to this motion due on September 27, 2006, any reply due by October 4, 2006, with the motion deemed submitted as of October 4, 2006, without oral argument (Docket No. 118). Counsel for Dr. Cole-Hoover, however, attempted to file his responding affidavit on October 3, 2006 (see Docket No. 120), without seeking leave to file this response out of time. Instead, counsel merely faxed a letter to Chambers indicating that the return date "somehow" got off his calendar until October 2, 2006, and that he was filing this response only "four working days late" (fax letter of Oct. 3, 2006, to Chambers). Dr. Cole-Hoover's counsel offered to not object to a similar extension of time for plaintiff's reply (id.), but did not move for such an extension for his response. Further, there were problems with the notary's statement affixed to the affidavit which required its refiling (e-filing notification, Oct. 4, 2006), and a courtesy copy of the voluminous affidavit and exhibits (47 pages) was not sent to Chambers as per this Chambers' guidelines.
Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), has a medical condition called hydrocephaly, which requires her to have a shunt to drain cerebrospinal fluid from her brain. She entered into DOCS custody in 1997 with her shunt intact. Within four years of incarceration, plaintiff alleges that she was rendered blind allegedly due to defendants' deliberate indifference to her medical needs by not maintaining her shunt or otherwise preventing fluid from backing up in her brain. (Docket No. 1, Compl. ¶ 1, "Compl.") She was transferred from Bedford Hills to the Albion Correctional Facility ("Albion") in November 1999 (Docket No. 41, Pl. Aff. ¶ 4.)
In this action plaintiff sues various treating and prison officials and employees of the Albion Correctional Facility and medical personnel at Strong Memorial Hospital ("Strong") for their denial of treatment of her that allowed cerebrospinal fluid to back up in her brain, causing her to lose her sight. (See Compl. ¶ 1.)
Following motion practice and an Amended Complaint, the parties engaged in discovery. Plaintiff deposed Dr. Cole-Hoover on June 20, 2006 (Docket No. 115, Pl. Atty. Affirm. ¶ 4). Plaintiff claims that Dr. Cole-Hoover repeatedly refused to answer questions posed to her (see id. ¶ 5). In particular, Dr. Cole-Hoover testified that she did not recall the plaintiff when asked (a) if she requested an outside consultation for plaintiff; (b) whether the doctor had an independent recollection of becoming concerned in 2000 or 2001 that plaintiff's shunt was not working; (c) whether the doctor remembered reviewing particular documents that are part of plaintiff's medical record; (d) whether the doctor remembered discontinuing certain medication for plaintiff; and (e) whether the doctor has reason to believe that plaintiff has not suffered permanent vision loss (Docket No. 115, Pl. Atty. Affirm. ¶ 6, Exs. A-E). Dr. Cole-Hoover would not confirm that she did not recall specific aspects of plaintiff's medical care in response to the questions posed by plaintiff's counsel (id. ¶ 8). Plaintiff contends that Dr. Cole-Hoover's answers that she did not remember plaintiff were evasive.
The first confrontation involved whether Dr. Cole-Hoover recalled requesting an outside consultation (Docket No. 120, Dr. Cole-Hoover Atty. Aff. ¶ 2, Ex. A; Docket No. 115, Pl. Atty. Affirm. ¶ 6(a), Ex. A). At first she testified that she did not request a consult because there was no "AHR," or ambulatory health record, entry in plaintiff's medical record (Docket No. 120, Dr. Cole-Hoover Atty. Aff. ¶ 2, Ex. A, Tr. at 148). Dr. Cole-Hoover then was asked whether she remembered whether or not she requested the consult and she answered no, which her attorney asked whether she did not remember or she did not make the request (id.). Dr. Cole-Hoover answered her attorney that "no, I did not request a consult. There's no AHR that has a visit" (Docket No. 115, Pl. Atty. Affirm. ¶ 2, Ex. A, Tr. at 149). Plaintiff's counsel again asked if Dr. Cole-Hoover remembered requesting the consult, and she testified that she did not, because there was no AHR and "there's nothing that I remember about this patient" (id., Tr. at 149-50; Docket No. 120, Dr. Cole-Hoover Atty. Aff. ¶ 4). Over objections, plaintiff's counsel then asked three more times whether Dr. Cole-Hoover recalled (without reviewing the record) requesting the consultation (Docket No. 115, Pl. Atty. Affirm. Ex. A, Tr. at 151-53), with the doctor responding that there was no AHR entry of her requesting the consult for plaintiff (id., Tr. at 153, 154), rather than testify about what she recalled apart from plaintiff's medical record. Dr. Cole-Hoover's counsel later explains that, absent an AHR, there was no proof that plaintiff saw Dr. Cole-Hoover as a patient in March 2000 (Docket No. 120, Dr. Cole-Hoover Atty. Aff. ¶ 6, citing Tr. at 154). Plaintiff's counsel then asked if Dr. Cole-Hoover ever requested any consultation for plaintiff during plaintiff's stay at Albion (Docket No. 115, Pl. Atty. Affirm. Ex. A, Tr. at 154-55), and Dr. Cole-Hoover's counsel argued that she had answered that question, that her answer again probably would not change, and that plaintiff should move on. At this point, plaintiff's counsel moved to strike her answers as non-responsive (id., Tr. at 155).
The next area was whether Dr. Cole-Hoover had any independent recollection of becoming concerned about plaintiff's shunt in 2000 or 2001 (id. ¶ 6(b), Ex. B). After being shown Strong Memorial Hospital records from June 2000, plaintiff's counsel asked Dr. Cole-Hoover if she recalled plaintiff complaining of horrendous headaches (id. Tr. at 155, Ex. B, Tr. at 156). Dr. Cole-Hoover replied that there was no ambulatory health record that Dr. Cole-Hoover saw the plaintiff, and that if plaintiff made a complaint it would have been documented and an AHR would be in her medical record (id., Tr. at 156). Again, testing Dr. Cole-Hoover's memory independent of the medical record, plaintiff asked if she remembered, and again the doctor referred back to the absence of an AHR (id., Tr. at 156-57). Plaintiff then asked whether Dr. Cole-Hoover became concerned in 2000 or 2001 that plaintiff's shunt was not working and, again, Dr. Cole-Hoover answered that there were no AHRs that she saw the plaintiff for those complaints (id., Tr. at 158-59, 160). She did not answer if she had an independent recollection of plaintiff's complaints (id., Tr. at 160-61). When not presented with plaintiff's medical record and asked if she recalled plaintiff having concerns about her shunt in January 2001 (with defense counsel objecting), Dr. Cole-Hoover answered that she could not answer the question without plaintiff's chart and that she did not remember the plaintiff (id., Tr. at 186-87).
The third area was whether Dr. Cole-Hoover recalled particular documents from plaintiff's medical record (id., Pl. Atty. Affirm. ¶ 6(c), Ex. C). After recognizing her handwriting on the exhibit (Docket No. 120, Dr. Cole-Hoover Atty. Aff. Ex. C, Tr. at 202), plaintiff's counsel asked Dr. Cole-Hoover if she recalled reviewing that document in January 2001 (Docket No. 115, Pl. Atty. Affirm. Ex. C, Tr. at 203). Dr. Cole-Hoover testified that she had no memory of the plaintiff (id., Tr. at 203; Docket No. 115, Pl. Atty. Affirm. ¶ 8), and she did not state whether she recalled reviewing the document. When asked about other, consultation report, Dr. Cole-Hoover repeated that she had no memory of the plaintiff (id., Ex. C, Tr. at 213-14).
Similarly, the fourth area inquired whether Dr. Cole-Hoover recalled discontinuing Imitrex for the plaintiff when shown a nurse's note in plaintiff's medical record (id., Ex. D, Tr. at 226; Docket No. 115, Pl. Atty. Affirm. ¶ 6(d), (e), Ex. D; see also Docket No. 120, Dr. Cole- Hoover Atty. Aff. Ex. D). Finally, the fifth area involved whether Dr. Cole-Hoover doubted plaintiff's testimony that she lost her sight since April 2001 (Docket No. 115, Pl. Atty. Affirm. ¶ ...