DECISION AND ORDER This is a motion to compel relating to certain deposition questions to which defense counsel have objected — during the testimony of Robert E. Benton M.D. who, although not a named party, was a shareholder of defendant Capital Cardiology Associates, P.C. (hereinafter Capital) along with defendant James O’Brien, M.D., also a Capital principle. This action seeks recovery of damages for medical malpractice allegedly committed by more than one defendant in the course of their care and treatment of plaintiff’s decedent. CPLR 3101(a) provides that “[t]here shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” In Allen v. Crowell-Collier Publ. Co. (21 NY2d 403 [1968]) (hereinafter Allen), the Court of Appeals stated as follows: “‘[M]aterial and necessary’ [is] to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (id. at 406, quoting CPLR 3101 [a] [emphasis added]; see Tower Ins. Co. of N.Y. v. Murello, 68 AD3d 977, 977 [2d Dept 2009]). The Court of Appeals interpretation of “material and necessary” in Allen has been understood “to mean nothing more or less than ‘relevant’” (Patrick M. Connors, Prac Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:5). However, “unlimited disclosure is not mandated, and the rules provide that the court may issue a protective order ‘denying, limiting, conditioning or regulating the use of any disclosure device’ to ‘prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts’” (County of Suffolk v. Long Is. Power Auth., 100 AD3d 944, 946 [2d Dept 2012], lv dismissed 20 NY3d 1030 [2013], quoting CPLR 3103 [a]; see Accent Collections, Inc. v. Cappelli Enters, Inc., 84 AD3d 1283, 1283 [2011]). The following facts were adduced from the medical records and on the deposition of Benton. On May 24, 2018 plaintiff’s decedent was a 70-year-old male seeking cardiac care at Capital’s offices located in the Town of Clifton Park, Saratoga County. Office staff administered an EKG which indicated a rapid heart rate and he was seen by Benton. The decedent and his spouse also gave Benton a verbal history of the decedent’s cardiac condition, which included a diagnosis of atrial fibrillation (hereinafter AFIB) just five days earlier at the Glens Falls Hospital. Decedent was given an electrocardioversion and was cardioverted back into a sinus rhythm. That record also demonstrated that the decedent had been diagnosed with dilated cardiomyopathy, congestive heart failure, a low ejection fraction, shortness of breath, and low blood pressure. Benton recommended — and the decedent was — transported immediately by ambulance to the emergency department of defendants Albany Medical Center Hospital and Albany Medical College (hereinafter referred to collectively as AMC). The transport records and testimony indicate that Benton instructed the ambulance crew that the antiarrhythmic drug Cardizem, while enroute, could not be administered because the decedent’s “blood pressure [was] too low.” Benton, in his deposition, testified to these facts as follows: “Q: Doctor, I want you to assume that the EMS individual, Mr. Congero, who arrived at your office to transport Mr. Koncikowski testified — this is page 36 of his deposition — that the Doctor told me that the patient could not receive Cardizem, that his ejection fraction was 27 percent, and his blood pressure was too low. Do you agree with that statement, Dr. Benton? “A: I agree that I would not have — if I said it, and I don’t recall — that I didn’t put limitations on what happens at the hospital. It was just in the potentially chaotic situation of an ambulance. “Q: What would be the difference whether he was given Cardizem in the ambulance or the hospital? “A: It’s a completely different situation. “Q: Why? “A: Well, there’s physicians and trained ER physicians in the emergency room, these were, you know, paramedics, and I’m sure they do a great job, but there’s just the two of them and not the support of a, you know, an emergency room. It’s just a different place.” Plaintiff’s decedent left Benton’s office by ambulance at approximately 15:23 and arrived at AMC at approximately 16:02. He expired at 21:44 on May 24, 2018 while at AMC. The single office note of Benton reads as follows: “I canceled this office visit for Mr. Koncikowski with no charge to he and his wife. He came here in rapid tachycardia. Looks like AFIB at about 170 beats per minute. He, apparently, just left Glens Falls yesterday and I briefly looked at records. It says he had dilated cardiomyopathy and rapid AFIB and he is quite ill in my office. I did not delve too much into this except to find out that Dr. Hnath had made this appointment with me a while ago and I am not sure why that is. He kept the appointment with me. He looks terrible here in the office…at Community Care Physicians in Clifton Park on Route 9. I have called the ambulance to have him taken to Albany Med. They do not want to go back to Glens Falls. Dr. O’Brien informed me that the patient passed away in the AMC ED.” The records of co-defendant O’Brien included in the AMC chart are as follows: “HISTORY OF PRESENT ILLNESS: Mr. Koncikowski is a 70-year-old gentleman with a history of an abdominal aortic aneurysm repair, a history of dilated cardiomyopathy with an EF of 20 percent-30 percent of unclear etiology, a history of low platelets, benign prostatic hypertrophy, congestive heart failure and [AFIB]. He was seen by Dr. Gray up at Glens Falls and went back to sinus rhythm and was discharged to home. He was tried on Entresto but could not tolerate it because of hypotension and went home on Lasix. He was doing okay, short of breath with activity but reasonably stable and came in for an outpatient visit with Dr. Benton. On the way to the visit he became very short of breath and felt extremely poorly, went into the office and was found to be in [AFIB] with RVR, heart rate about 160, blood pressure about 100 and paramedics transferred him here to Albany Med. Here in the hospital he was on oxygen with a sat of 100. Blood pressure was 106. Heart rate was about 160. He received 10 mg of Cardizem and tolerated it well but did not have any change in his rates. He was given a small dose of Lopressor which was interrupted and then a small dose of amiodarone was being given and he developed significant hypotension and became unresponsive. On my arrival he was undergoing CPR. The echocardiogram showed really no cardiac contractility. He did go into VF and was defibrillated four to five times, each time breaking back to a slow VT but then it would degenerate very quickly back into ventricular fibrillation and again shocked and this was done multiple times. He received IV lidocaine and multiple boluses of epinephrine with multiple boluses of sodium bicarbonate. He was intubated when he collapsed and had extruded pink frothy sputum coming out of the ET tube, essentially water. He did have adequate breath sounds. The tube was in a good position. He was coded for over 30 minutes with vigorous chest compressions and as I said multiple pressors and shocks and the intubation. Despite this, his heart never really regained function and he was pronounced. We went out and spoke to his wife about the situation and she understands. He is in the process of being cleaned up and she is going to come in and spend a little time with him.” There are no individualized specifications of malpractice identified in the Bill of Particulars with respect to Benton other than by reference to either res judicata or respondeat superior. Plaintiff identifies the times and two locations of where and when the alleged malpractice occurred: “1. The medical malpractice complained of in this action occurred between the hours of approximately 3:00 PM to 7:00 PM on May 24, 2018. “2. The first occurrence took place at approximately 3:00 PM. at the offices of Robert Benton, M.D., cardiologist employed by the defendant Capital Cardiology Associates, P.C., at 1783 Route 9, Suite 202, Clifton Park, New York. The second occurrence took place at the defendant Albany Medical Center Hospital Emergency Department at 43 New Scotland Ave., Albany, NY. The complaint alleges with respect to Capital that: “55. Upon arrival at said emergency care facility on May 24, 2018, the [d]ecedent was also accepted as a patient of Capital. “65. On said date of May 24, 2018, the medical, surgical, emergency, diagnostic and/or nursing examinations, evaluations, consultations, care, treatments, tests, procedures, surgery, services or advice ordered for, requested for, recommended for, advised for, performed upon, rendered to or provided to the [d]ecedent by the said defendants Capital and O’Brien, their servants, agents and employees, were performed in a negligent, unskillful, careless or improper manner and in a manner contrary to good and accepted medical, surgical, emergency, diagnostic and/or nursing practices in the community, and otherwise breached the standard of care which the [d]ecedent was entitled to receive.” On the advice of counsel, Benton refused, inter alia, to answer the following questions: “1. Based on the history that was given to you at that time, when Mr. Koncikowski arrived, was it your opinion that Mr. Koncikowski should not have been treated with Cardizem on his arrival at AMC? “2. Is it your position that Mr. Koncikowski could have received Cardizem to treat his [AFIB] condition?” The parties thereafter voluntarily suspended the deposition and, by this motion, have now formally done so (see CPLR 3103 [b]). “In an action for malpractice brought against more than one physician, one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness” (Carvalho v. New Rochelle Hosp., 53 AD2d 635, 635 [2d Dept 1976]). To be permitted the questions must be directed to the treatment that the witness rendered to the patient (see Glass v. Rochester Gen. Hosp., 74 AD2d 732, 733 [4th Dept 1980]). If the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a co-defendant does not excuse the witness from being deposed as an expert. Here, defendants do not object to plaintiff seeking Benton’s opinion so long as it relates to his role in the diagnosis, care, and treatment of his patient in his Clifton Park office on May 24, 2018. Defendants contend that Benton’s duties in caring for his patient ceased when he gave instructions to the transporting ambulance personnel after which the decedent was surrendered to the ambulance. Plaintiff contends that decedent was a patient of Capital at all times, and that Benton and O’Brien were practicing in conjunction as a cardiological team. This theory of practicing in conjunction was successfully applied in Giventer v. Rementeria (181 Misc 2d 582 [Sup Ct, Richmond County 1999]) (hereinafter Giventer), which involved the trial testimony of an anesthesiologist and an obstetrician who were both part of a team performing a cesarian section birth operation on the plaintiff-mother. This rationale was also applied in Cruz v. City of New York (135 Misc 2d 393 [Sup Ct NY County 1987]) (hereinafter Cruz) during the trial of another medical malpractice action involving a brain damaged baby. There the Court held that a resident, although not a named defendant, was still part of the obstetrical team delivering the baby (see id. at 395). The relevant distinction here is that Benton and O’Brien were not acting side by side at AMC — as was the case in both Giventer and Cruz where the physicians were simultaneously treating their patient. As a matter of law the first question is not directed to the treatment that Benton rendered to the patient. This question bears solely on alleged negligence of the co-defendants since the opinion sought pertains to what those other than Benton did — or did not do — once the decedent arrived at AMC. The second question fares no better as the point in time being referenced is unclear. If the question is posed from that point in time when the decedent was at AMC then Benton was properly instructed not to answer it — again because it does not pertain to treatment rendered by him. As commentators have observed the queries are inappropriate “‘[where…the question[s] solely involve[] care rendered by another and [are] wholly irrelevant to what the witness himself did, did not do, knew or should have known’” (Giventer v. Rementeria, 181 Misc 2d at 586, quoting Norman Bard & Lori A. Maran, New York Medical Malpractice, §17.5.9.1 Comment [Norman Bard 1994]; see Claudino v. Mastellone, 286 AD2d 697, 697-698 [2d Dept 2001]). The Court recognizes that this ruling is not without its intrinsic tensions. As stated, the nonparty partner of the defendant physician can be examined with respect to his care and treatment of the patient. By way of illustration, however, Benton is also more likely than not able to describe the generally accepted medical practice in the community relating to the customary practice of communicating with a partner about a patient’s care and there should be no limitation to this line of questioning (see Hardter v. Semel, 197 AD2d 846, 846-847 [4th Dept 1993]). Additionally, it has been repeatedly held that “a plaintiff in a malpractice action is [also] entitled to call the defendant doctor to the stand and question him both as to his factual knowledge of the case (that is, as to his examination, diagnosis, treatment and the like) and, if he be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community” (see McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 29-30 [1964]). Benton’s status as a non-party does not dictate a different result, although the Court specifically makes no finding whether Benton is — or is not — qualified to opine with respect to the relevant standards of care at AMC’s emergency department. Therefore, having considered NYSCEF document Nos. 26 through 33, 35 through 42, 44 and 45, and oral argument having been heard on October 24, 2023 with William L. Nikas, Esq. appearing on behalf of plaintiff, James Cullum, Esq. appearing on behalf of defendants Albany Medical Center Hospital, Albany Medical College and Howard S. Snyder, M.D., and Jeffrey J. Tymann, Esq. appearing on behalf of defendants James O’Brien, M.D. and Capital Cardiology Associates, P.C., it is hereby ORDERED that plaintiff’s motion to compel is denied with respect to the two questions identified hereinabove; and it is further ORDERED that the deposition of non-party Robert E. Benton M.D., shall continue in a manner not inconsistent with this decision. This Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to serve with notice of entry. Dated: December 4, 2023
