United States District Court, N.D. New York
ESTATE OF JOYCE SAVAGE, HOWARD ALVIN SAVAGE, INDIVIDUALLY, AND AS THE ESTATE REPRESENTATIVE, Plaintiffs,
ST. PETER'S HOSPITAL CENTER OF THE CITY OF ALBANY, INC., ST PETER'S NURSING AND REHABILITATION CENTER, INC., TRINITY HEALTH CORPORATION, ST. PETER'S HEALTH PARTNERS, and JOHN DOES 1 THROUGH 50, Defendants.
LAW PLLC Attorneys for Plaintiffs
MAGUIRE CARDONA, P.C. Attorneys for Defendants
LYNN SAVAGE, ESQ., AMANDA K. KURYLUK, ESQ. RANDALL J. EZICK,
DECISION AND ORDER
J. STEWART, United States Magistrate Judge
FACTS AND PROCEDURAL HISTORY
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.
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
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.
assert that complete medical records have never been
provided,  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 ¶
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 &
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.
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.
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 ...