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Ryan v. Staten Island University Hospital

December 5, 2006

ELIZABETH M. RYAN, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF THOMAS W. RYAN, DECEASED, PLAINTIFF,
v.
STATEN ISLAND UNIVERSITY HOSPITAL, GILBERT LEDERMAN, GILBERT LEDERMAN, M.D., P.C., AND PHILIP JAY SILVERMAN, DEFENDANTS.



The opinion of the court was delivered by: Kiyo A. Matsumoto, United States Magistrate Judge

MEMORANDUM & ORDER

In June 2004, plaintiff Elizabeth M. Ryan commenced this action against defendant Staten Island University Hospital (SIUH or defendant) and others, alleging claims of fraud, medical malpractice, and violations of New York State consumer protection and public health laws. Plaintiff claims that her husband, terminally ill from pancreatic cancer, was lured into useless treatment by defendants' aggressive false advertising, with misrepresentations of, among other things, a "95% success rate," for cancer treatment. Plaintiff alleges that defendants' misrepresentations enticed plaintiff's husband to leave his home in Florida, forego appropriate treatment, and subject himself to defendants' grossly negligent and unnecessary treatment, which shortened his life span and wrongfully enriched the defendants. (Doc. No. 1, Complaint ¶ 1.)

Pending before the Court is plaintiff's third request for judicial intervention to resolve a discovery dispute with defendant SIUH.

Procedural Background

On July 22, 2005, plaintiff served SIUH with her Second Set of Interrogatories and Second Request for Production of Documents. (See Plaintiff's Third Motion to Compel, dated November 7, 2006 (Pl.'s Mt.), Exh. 1.) During a telephone status conference with the undersigned on September 9, 2005, counsel for SIUH, Nancy J. Block, Esq.: informed all parties . . . that [SIUH] is attempting to access what is believed to be the Stereotactic Body Radiosurgery database. [Ms. Block] explained . . . that technological difficulties have interfered with access. Upon [defendant's counsel's] information and belief, this document, once accessible, contains a database of patients who received radiosurgery treatment. [Defendant's counsel] have also been advised that this database lists patients by name and would require redaction if, and when, it is accessible. (Doc. No. 40, Letter from Nancy J. Block, dated 10/12/05, at 3.) (emphasis added).

On September 23, 2005, plaintiff moved to compel SIUH to respond to several of its interrogatory and document requests. On January 18, 2006, the parties participated in a telephone status conference with the undersigned, during which the Court asked Ms. Block about the status of SIUH's ongoing efforts to retrieve data necessary to respond to plaintiff's discovery demands. (See Pl.'s Mt., Exh. 4, Transcript of Civil Cause for Conference, dated 1/18/06, at 4-5.) Ms. Block responded that "both the data and that response are in progress." (Id. at 4-5.) The Court asked, "What is the status of your efforts to get responses because this is now several months?" (Id. at 5.) Ms. Block responded,

Well, the problem with the data is that we had two issues with it. One was the fact that it was on a computer system . . . that didn't exist anymore.

So, we had to try to get someone to, you know, really tap into that system and get the data. And we have recently been able to do that and now we have to redact all confidential patient information. (Id. at 5.) When the Court asked when SIUH could produce that information, Ms. Block responded: "In two weeks we could do it." (Id.) The Court then ordered SIUH, inter alia, to:

(1) "provide a privilege log and legal support for the privileges invoked in response to plaintiff's discovery demands by 2/1/06;" and

(2) "supplement their discovery responses to specific discovery demands by plaintiff on or before 2/21/06." (Doc. No. 47, Minute Entry of 1/18/06.)

Accordingly, on February 1, 2006, SIUH submitted a privilege log on and asserted privileges with respect to eight categories of documents, under NYS Public Health Law § 2805 and Education Law § 6527(3). (See Pl.'s Mt., Exh. 12.) Notably, SIUH did not assert that any dates regarding SIUH patients were privileged or otherwise protected. (See id.)

On February 21, 2006, SIUH produced a paper document entitled "SIUH Body Radiosurgery Database December 31, 2002" (the database), a print-out of a database which lists all of the patients who were treated with radiosurgery at the hospital, including, inter alia, their diagnoses, year of treatment and type and location of cancer, through December 31, 2002. (See Pl.'s Mt., Exh. 3.) The database contains approximately 146 columns.*fn1 Each entry in approximately ten of the columns -- "Last" (last name), "First" (first name), "RSNumber" (radiosurgery number), "PriorRSR" (prior radiosurgery number), "PostRSR" (post radiosurgery number), "Street," "City," "Zip," PhoneNum," and "SocSecNo" -- is stamped "REDACTED."*fn2

(See id.) Approximately twelve columns -- including "DOB" (date of birth), "DxDate" (diagnosis date), "Expire" (date of death), "Foll1" through "Foll4" (dates of follow-up examinations), "TrmtStrt" (treatment start date) and "TrmtEnd" (treatment end date) -- contain dates noted only by year, and not month and day, but do not indicate any redactions. (See id.) Approximately eighty-seven columns -- including "DateofRec" (date of recurrence), "CompDate" (date of treatment complications), "Foll5" through "Foll12" (dates of follow-up examinations) and "TrmtComp" (presumably date of treatment completion) -- are completely or largely blank, but do not indicate any redactions. (See id.)

At the January 18, 2006 conference, the Court also set a briefing schedule for plaintiff to oppose SIUH's claims of privilege. Plaintiff submitted her opposition on February 8, 2006 (see Doc. No. 51, Letter from Richard I. Reich and Roman E. Gitnik, dated 2/8/06); and SIUH replied on February 10, 2006 (see Doc. No. 52, Letter from Nancy J. Block, dated 2/10/06). On April 13, 2006, the Court issued a memorandum and order, finding that the information sought by plaintiff was not privileged because "evidence of adverse treatment outcomes was relevant to whether defendant's statements were materially misleading" and "whether defendant acted with the requisite intent to defraud." (Doc. No. 75, Memorandum and Order, dated 4/13/06, at 3-4.) The Court further held that the documents were not privileged and ordered SIUH to produce all responsive information. (See id.at 8.) The Court also provided, "SIUH may redact from those documents . . . all identifying information regarding patients." (Id. at 9.) In addition, the Court ordered the parties to submit a protective order "regarding the documents listed in SIUH's privilege log." (Id.)*fn3

On June 30, 2006, the parties participated in another telephone status conference before the undersigned, during which Ms. Block "repeatedly represented" that she had produced all responsive information, and "that the [database] was a true and complete copy of SIUH's body radiosurgery database through 2002 currently in its possession." (Pl.'s Mt., at 3.) For example:

* Ms. Block stated, "Your honor, we have made such a complete search so many times, and everything -- I did take your [April 13, 2006] order very seriously and we worked very hard compiling what we did, and that is inclusive of everything." (Pl.'s Mt., Exh. 5, at 28)

* She further stated, "Your honor, we gave him the entire database through 2002, which has all the patients listed by cancer diagnosis . . . . It was quite voluminous and [plaintiff] has it. Other than this data, we don't have any information ...


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