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Dixon-Gales v. Brooklyn Hospital Center

Supreme Court, Kings County

March 7, 2012

Rebecca Dixon-Gales, As Administrator of the Estate of John W. Gales, Deceased and REBECCA DIXON-GALES, Individually, Plaintiff,
The Brooklyn Hospital Center, WOO-TAEK CHANG, M.D., ALAN ROLEDA, GO, M.D., SPENCER LUBIN, M.D. and JACKSON LAZARD, M.D., Defendants.

Attorney for Plaintiff: The Palmiotto Law Firm, P.C.

Attorney for Defendant Spencer Lubin, M.D.: Morris, Duffy, Alonso & Faley, LLP

Attorney for Defendants Woo-Taek Chang, M.D. and Alan Roleda, M.D.: Furey, Kerley, Walsh, Matera & Cinquemani P.C.

Attorney for Defendant Brooklyn Hospital Center: Garbarini & Scher, PC.

Attorney for Defendant Jackson Lizard, M.D.: Costello, Shea & Gaffney, LLP


Defendant Brooklyn Hospital Center moves for a Protective Order precluding plaintiff from conducting the deposition of Debra Ambrose, R.N.; or in the alternative, precluding plaintiff from asking Debra Ambrose, R.N. or any other former or present employee of Brooklyn Hospital Center any questions at deposition or at trial regarding this defendant's procedures where a patient requires a ventilator and, directing that plaintiff turn over any notes, memos, recording of conversation with Debra Ambrose, R.N. on the grounds that plaintiff's counsel violated Disciplinary Rule 7-104(a)(1) by communicating with Debra Ambrose, R.N. Plaintiff opposes the motion.

Plaintiff cross moves for an Order disqualifying counsel for Brooklyn Hospital Center from representing certain non-party witnesses on the grounds that the attorneys violated Disciplinary Rule 2-103(A) (1) by improper solicitation. Defendant Brooklyn Hospital Center submits opposition.

Defendant Spencer Lubin, M.D. moves for a Protective Order preventing disclosure of home and cell telephone records. Plaintiff opposes the motion.

In this medical malpractice action, plaintiff alleges that Mr. Gales, a ventilator dependant patient at the defendant Brooklyn Hospital Center, was removed from a mechanical ventilator at approximately 8:00 P.M. on August 12, 2008 for transport to the operating room for a tracheostomy. He was manually bagged during the transport by a first year resident. Plaintiff claims that when the patient arrived at the OR holding area, no anesthesiologist was available for the surgery. There is testimony that the resident attempted to bring the patient to the post anesthesia care unit (PACU) but was denied access because the patient was not post-operative. Plaintiff further claims that at approximately 9:15 P.M. a code was called when the patient was found without a pulse in the OR holding area. The patient was pronounced dead shortly thereafter by the Code Team that attempted resuscitation.

In her Bill of Particulars, plaintiff alleges, inter alia, that Brooklyn Hospital was negligent in failing to give the patient proper monitoring, supervision and nursing care, in failing to render appropriate care in the handling and monitoring of the patient, in failing to provide policies and procedures to protect the safety of patients such as decedent; in failing to adhere to or monitor compliance with existing procedures and policies; in failing to set and ensure appropriate standards of care; in performing nursing care and follow up care improperly, incompetently and dangerously; in failing to ensure that an anesthesiologist was present to receive and treat decedent for surgery; in causing further harms and injuries out of and as a result of the actions and inactions of defendant, its servants, agents and/or employees.

At this stage of the litigation a number of depositions have taken place. As to the claims against the hospital, the deposition of Oswald Bradshaw, head nurse for the OR holding area, took place on July 19, 2011. Nurse Bradshaw, having retired approximately two years ago, appeared for deposition pursuant to subpoena. On June 20, 2011, at around the time the subpoena was served, Nurse Bradshaw was interviewed ex parte by a private investigator retained by plaintiff's attorneys' firm. By letter dated July 6, 2011, Brooklyn Hospital Center objected to a Notice of Deposition served upon its attorneys without a copy of the subpoena served upon Nurse Bradshaw. The letter advised plaintiff's attorney that the attorneys for Brooklyn Hospital Center were retained by Nurse Bradshaw to represent him with respect to said deposition. The letter also requested that plaintiff's counsel refrain from contacting Nurse Bradshaw and advised to direct all inquiries in his regard to the attorneys for Brooklyn Hospital Center. Plaintiff's response to such letter is noted and annexed as an exhibit to the cross motion.

Notwithstanding, this motion involves the circumstances surrounding the deposition of Debra Ambrose, a registered nurse presently employed by Brooklyn Hospital Center. On or about June 28, 2011, counsel for plaintiff sent a Notice of Deposition of Debra Ambrose to the attorneys for Brooklyn Hospital, and on or about July 5, 2011, a subpoena was served upon Debra Ambrose noticing her deposition for August 1, 2011. Upon receipt of the subpoena, Nurse Ambrose called plaintiff's attorneys to inquire about the subject matter involving the subpoena. In an affidavit annexed to Brooklyn Hospital's motion, Nurse Ambrose states that she initially spoke to a woman whom she believed to be a secretary or a receptionist at plaintiff's attorney's office and was thereafter transferred to speak to the attorney. It is uncontroverted that Nurse Ambrose spoke to plaintiff's counsel who asked her about the procedure or policy for admitting a patient to the PACU unit at Brooklyn Hospital. Nurse Ambrose responded to the inquiry. Nurse Ambrose states in her affidavit that plaintiff's counsel did not inquire if she was presently an employee of Brooklyn Hospital.

DR 7-104(A)(1) reads: "During the course of [the] representation of a client a lawyer shall not * * * [c]ommunicate or cause another to communicate with a party [the lawyer] knows to be represented by a lawyer in that matter unless [the lawyer] has the prior consent of the ...

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