Verdicts

The hospital objected to having to produce records as to paragraphs 4 (seeking a count of all surgeries performed by Dr. Abodeely since 2010), 5 (seeking a count and dates of all surgeries the doctor performed for diverticular disease since 2010) and 6 (seeking a count and dates of all colectomies performed by Dr. Abodeely since 2010). The hospital claimed that these particular paragraphs sought information that was not material and necessary, and that the demand was an unreasonable annoyance and burden, as well as overly vague and improper. The hospital's response went on to state, however, that the information might be supplemented in the future. No supplemental information was every provided. A conference with the court did not resolve the issue, prompting the plaintiff to make the subject motion to compel the hospital to respond.

The court first turned to the hospital's contention that the information requested in paragraphs 4, 5 and 6 of the plaintiff's demand would require it to create a document. This, the hospital said, was not allowed because, according to Matter of General Elec. Co. v Macejka, 252 AD2d 700, 701(1998), lv dismissed 92 N.Y.2d 1012 (1998), “it is axiomatic that a party may not be compelled to create documents in order to comply with discovery demands.” But the defense had not made this argument in its response to the plaintiff's demand for disclosure, and had not asserted it in its conferences with the court. Still, the court dealt with the substance of the argument, noting that hospitals operating in the State of New York are generally required to keep extensive records in a “a system of coding and indexing” that “shall allow for timely retrieval by diagnosis and procedure.” 10 NYCRR § 405.10 (a) (5). Also, the only assertion provided by the defendants that the records in question did not in fact exist came in the form of an attorney's affidavit in which the lawyer claimed no personal knowledge of the relevant facts and provided no information about the specific source of his understanding that the records sought did not exist.

The defendants next claimed that the demanded information was not material and necessary. The court pointed out, however, that the “number of prior similar medical procedures conducted by a medical professional during a defined period of time may, under some circumstances, provide relevant information (see Hommel v. Dental Care Servs., 159 AD2d 754, 754-755, 552 N.Y.S.2d 58 [1990]; see also Cole v Panos, 128 AD3d 880, 883-884, 11 N.Y.S.3d 179 [2015]).” Here, the plaintiff's theories of liability — including negligent surgery, failure to properly diagnose and unnecessary surgery — were such that the court was persuaded that the requested information might be material and necessary to the plaintiff's case. The court therefore ordered the hospital to comply with the discovery demand, though only for the period that Dr. Abodeely was credentialed at the hospital up through the date of the plaintiff's procedure, a smaller window of time than that the plaintiff had requested.