This case is not published in a printed volume and its disposition appears in a table in the reporter.
Plaintiff's counsel is RICHARD L. GIAMPA
Defendants' counsel are: WILSON ELSER MOSKOWITZ/EDELMAN,
BENVENUTO ARCIERO MCANDREW, AHMUTY DEMERS MCMANUS.
Judith J. Gische, J.
This is an action by plaintiff Sloan Giampa ("Sloan") for medical malpractice and negligence against Marvin L. Shelton, a medical doctor ("Dr. Shelton") and Columbia Presbyterian Medical Center, a hospital ("Columbia Prebyterian"). Dr. Shelton is now deceased and this case is being defended by the Executrix of his estate. The doctor has moved and the hospital has cross moved for the disqualification of Richard L. Giampa, Esq. ("Mr. Giampa") as plaintiff's attorney. Mr. Giampa is Sloan's father. The claims asserted, which involve the manner in which Sloan's fractured ankle was treated, arose when Sloan was 12 years old. She is now an adult.
In connection with prior motions by the doctor and the hospital for Mr. Giampa's disqualification or, in the alternative, an order that he appear for his deposition, the court ordered that Mr. Giampa be deposed, but denied the motions to disqualify him. In the court's order of April 17, 2007 (at times prior order"), the court decided that until Mr. Giampa was deposed, it would be impossible to know whether Mr. Giampa was possessed with factual information that was detrimental to Sloan's claims, and therefore "necessary " to the defendants' defense of this action. At that time neither side was willing to commit to or divulge whether it would be calling Mr. Giampa as a witness. The motions were denied without prejudice. Now that Mr. Giampa has been deposed, defendants have brought the instant motions to once again put the disqualification issue before the court.
Though separately moving for disqualification, the doctor and hospital raise closely aligned, if not identical, arguments as to why Mr. Giampa must be disqualified. Unless one defendant makes a distinctive argument not raised by the other, the arguments will be addressed collectively as being those of the " defendants."
When Sloan was 12 years old she suffered a fracture to her right ankle while at school. She was taken to a local hospital in her community, but her parents had her transferred to Columbia Presbyterian where they were referred to Dr. Shelton, an orthopedic surgeon. Dr. Shelton performed surgery on Sloan's ankle and later provided follow up care. Sloan contends that Dr. Shelton improperly casted her ankle and she suffered an infection because he departed from good and accepted standards of medical and surgical care and practice. She contends Columbia Presbyterian was negligent in referring her to this particular doctor.
There are a several contacts between Sloan and Dr. Shelton which provide the bases of plaintiff's malpractice/ medical negligence claims against Dr. Shelton, and her separate claim against the hospital for lack of informed consent. Certain contacts are the focal points of these motions. They are as follows:
The first visit with Dr. Shelton on October 30, 1997 was at the hospital when he operated on and casted Sloan's ankle ( the surgery"), directly after her accident at school. Plaintiff asserts that had she been informed of and known of alternative methods of treatment, she would have chosen them instead so as to have avoided the serious injury she claims to have suffered. Sloan has testified that she has no recollection of whether the doctor discussed the surgery with her, but remembers that her parents were present. Each parent has testified s/he was present at the hospital and consulted with Dr. Shelton. It is undisputed that Mr. Giampa signed the informed consent form for the surgery to be performed on Sloan. Mrs. Giampa signed the informed consent form for anesthesia to be administered to Sloan during the surgery. Mr. Giampa also signed the patient information notice. Sloan was discharged on October 31st. Between October 31st and November 5th, Sloan's first post-operative visit to Dr. Shelton at his office, both parents were in touch with the hospital.
Mr. Giampa took Sloan to her November 5th office visit with Dr. Shelton. Mrs. Giampa was not present at that visit. Sloan has testified that the doctor ripped" the cast open with his hands and that it was all bloody" inside. She also testified that the leg was swollen and that when he recasted her, the cast felt very tight and her ankle ...