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Estate of Savage v. St. Peter's Hospital Center of City of Albany, Inc.

United States District Court, N.D. New York

June 21, 2018


          SAVAGE LAW PLLC Attorneys for Plaintiffs

          MAGUIRE CARDONA, P.C. Attorneys for Defendants

         OF COUNSEL:



          DANIEL J. STEWART, United States Magistrate Judge


         In March of 2011, Joyce Savage was diagnosed with cancer. Dkt. No. 16, Am. Compl. (Federal), at ¶ 27. In her treatment by Women's Cancer Care Associates, LLC and Dr. Daniel Kredentser, she underwent chemotherapy and then a debulking surgery on August 8, 2012. Id. at ¶¶ 29-31. Mrs. Savage continued to bleed post-surgery, which resulted in her falling and being placed in ICU for three days. Id. at ¶¶ 39-42. She was then transferred to St. Peter's Nursing and Rehabilitation Center on August 19, 2011, where it is alleged that she continued to bleed, and suffered other related issues. Id. at ¶¶ 44-48. After being seen by a doctor at the Rehabilitation Center, she was transferred via ambulance to St. Peter's Hospital on August 22, 2011. Id. at ¶¶ 48-49. Mrs. Savage and her family then terminated Dr. Kredentser as her primary physician, had a “Hospitalist” appointed, and a series of tests and examinations were performed that disclosed that the uncontrolled bleeding was a result of a “nick” in her bladder which occurred during the August 2011 surgery. Id. at ¶¶ 57-59. Mrs. Savage continued to fight her cancer, but she ultimately passed away on March 19, 2013. Id. at ¶ 73.

         In March of 2014, Plaintiffs commenced a state court action for medical malpractice which was dismissed without prejudice. Am. Compl. (Federal) at ¶ 77. In February of 2015, Plaintiffs commenced a second action in Albany County Supreme Court. Dkt. No. 28-5, First Amended Complaint (State); Am. Compl. (Federal) at ¶ 82; Dkt. No. 33-1, Prop. Sec. Am. Compl. (Federal) at ¶¶ 73 & 77. After the filing of that action, the parties engaged in discovery, which led to a series of discovery disputes, resulting in multiple motions before Supreme Court Justice Gerald Connolly. See Dkt. No. 25, Civil RICO Statement. In this federal action, Plaintiffs have pointed to the difficulties in obtaining complete and accurate medical records prior to, and during, that New York State personal injury action, as the crux of their federal claim. Am. Compl. (Federal) at ¶¶ 79-101. For example, Mrs. Savage and her husband provided HIPAA authorizations in 2012, 2013 and 2014 to St. Peter's Hospital and St. Peter's Rehabilitation Center, but were said to have received incomplete responses of fewer than 500, and then 950, pages of medical records. Id. at ¶¶ 79-82. After the state malpractice action was commenced, discovery requests for complete medical records were made, and responses again were deemed inadequate by Plaintiffs. Id. at ¶ 87. This resulted in motions being filed and a series of state court decisions being issued. On October 19, 2016, Judge Connolly issued an order compelling discovery and imposing monetary sanctions against St. Peter's Hospital and its counsel. Id. at ¶ 93. A further order on a spoliation motion was issued on July 13, 2017. Id. at ¶ 96. That decision, while going through the history of non-disclosure, stated in pertinent part:

Based upon the record before the Court, however, it has not been demonstrated that the St. Peter's Defendants were “... guilty of a deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation” Altu v. Clark, 20 A.D.3d 749, 751 (3d Dept 2005) such that the drastic remedy of striking of the pleadings is appropriate herein. As previously stated, there has been no spoliation proven in the instant matter, and there is no evidence that the failure has prejudiced the plaintiffs' eventual ability to present their case.

Dkt. No. 25 at pp. 6-7.

         Plaintiffs assert that complete medical records have never been provided, [1] and that the failure to do so constitutes a “pattern of fraud by St. Peter's against the plaintiffs and . . . Albany Supreme Court [which] was facilitated through the use of the United States postal system and other mail organizations and via wire fraud (i.e. the internet/email).” Am. Compl. (Federal) at ¶ 99.

         On December 18, 2017, the Estate of Joyce Savage and Mr. Howard Savage filed a Complaint in federal court. Dkt. No. 1, Compl. (Federal). The Complaint contained numerous causes of action for medical malpractice, negligence, violation of Medicare as well as state law regulations, a violation of 42 U.S.C. § 1983, and a civil RICO violation. See Compl., generally. St. Peter's Hospital of the City of Albany, St. Peter's Nursing and Rehabilitation Center, Inc., Trinity Health Corporation, and St. Peter's Health Partners, (“St. Peter's Defendants”) answered the Complaint and denied the allegations. Dkt. No. 6. The remaining Defendants, Dr. Daniel Kredentser and Women's Cancer Care Associates, LLC, indicated their desire to make a motion to dismiss the Complaint. Dkt. No. 4. Plaintiffs then sought permission to file an amended complaint, which was granted by the Court on February 9, 2018. Dkt. Nos. 8 & 15.

         The Amended Complaint, now the operative pleading, is fifty-five pages in length, contains 166 paragraphs, and asserts both federal and state law claims. Am. Compl. (Federal). In particular, after reciting the history of Joyce Savage's treatment for, and death from, cancer, detailing the dispute regarding medical treatment records, reciting various federal and state regulations, and copying verbatim sections of St. Peter's Hospital's bylaws and policies, Plaintiffs asserted the following seven causes of action:

(1) A claim for reckless disregard/willful misconduct/medical malpractice and violations of the Federal Patient Bill of Rights and HIPAA. This claim relates back to events that occurred in August 2011, and the failure of Defendants to create, maintain, and produce appropriate medical records;
(2) A claim for violation of Medicare regulations (42 CFR 482.12, et seq.);
(3) A claim for negligence under New York law for the alleged failure to follow federal mandates;
(4) A claim under 42 U.S.C. § 1983;
(5) A claim of respondeat superior and/or vicarious liability for failure to provide decedent with proper medical care;
(6) A claim against the St. Peter's Defendants for allegedly negligently credentialing Dr. Kredentser; and
(7) A civil RICO claim based upon the St. Peter's Defendants' receipt of Medicare funds while engaged in a pattern of fraudulent racketeering activity.

Am. Compl. (Federal) at ¶¶ 142-66.

         In a somewhat unusual twist, within hours of filing of the Amended Complaint, Plaintiffs filed a Notice of Voluntary Dismissal without prejudice, of the entire action. Dkt. No. 17. That Notice of Dismissal was ultimately determined to be effective as to Defendants Kredentser and Women's Cancer Care Associates, LLC, who had not yet filed an answer, but ineffective as to the St. Peter's Defendants. See Dkt. Nos. 17, 21, & 27. As a result, Dr. Kredentser and Women's Cancer Care Associates, LLC have been terminated from the action. Dkt. No. 27. The remaining Defendants have now moved to dismiss the Amended Complaint. Dkt. No. 28.

         Rather than consent to the Motion to Dismiss, Plaintiffs have opposed it and seek permission to file a Second Amended and Supplemental Complaint. Dkt. Nos. 33 & 34. This Proposed Second Amended Complaint is seventy-four pages in length, omits reference to Dr. Kredentser and Women's Cancer Care Associates, LLC, omits any claim under 42 U.S.C. § 1983, and adds further facts regarding the discovery disputes in the State Court action, including a pending spoliation motion and an issue regarding an affidavit filed by Defendants that Plaintiffs believe to be perjurious. Dkt. 33-1, Prop. Sec. Am. Compl. (Federal). The proposed pleading sets forth the following ten causes of action:

(1) A claim for reckless disregard and willful and fraudulent misconduct, arising out of the violation of state law and state regulations, including HIPAA, relating to the creation, maintenance, and production of complete medical records;
(2) A claim for negligence per se and gross negligence, based on the violation of federal and state mandates, including Medicare regulations and state HIPAA laws;
(3) Fraudulent concealment;
(4) Fraud on the court premised upon a violation of New York State Judiciary Law and the Civil ...

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