Opinion
5368-04.
June 30, 2008.
The following named papers have been read on this motion:
Papers Numbered Notice of Cross-Motion and Affidavits Annexed X Order to Show Cause and Affidavits Annexed X Answering Affidavits X Replying Affidavits X
Plaintiffs move for an order herein pursuant to Judiciary Law § 474-a setting the counsel fees to which Shearer Essner, LLP, plaintiffs' attorneys of record in the instant matter are entitled and directing that the funds held in the escrow account of Shearer Essner representing the balance of said funds due to plaintiffs be paid over to plaintiffs. Shearer Essner oppose the motion and cross-move for an order directing that interest be awarded on said fees awarded to them.
Plaintiffs commenced the instant action asserting causes of action for negligence and medical malpractice against defendants in connection with an alleged failure to diagnose endocarditis in plaintiff Edward Spiegel who would eventually have open heart surgery performed at North Shore Hospital during which he suffered a stroke. Plaintiffs initially retained the law firm of Flanzig Flanzig to represent them in this matter. Said retainer agreement was a medical malpractice retainer agreement that set forth the payment schedules for such a claim as contained in Judiciary Law § 474-a. Plaintiffs thereafter retained the law firm of Shearer Essner to represent them in this matter and on May 19, 2004 a negligence retainer agreement and a medical malpractice retainer agreement were filed with the Office of Court Administration.
In early 2007 the parties settled this matter, defendant Andrew Goldfarb, M.D., the doctor who allegedly misdiagnosed Mr. Spiegel's condition paying $2,300,000.00 and defendant Enzo Clinical Labs, Inc., the laboratory to which Mr. Spiegel's blood samples were sent, paying $4,200,000.00. Due to a conflict between plaintiffs and Shearer Essner on the issue of whether the settled claim as against defendant Enzo was based upon medical malpractice (in which case the payment schedule set forth in Judiciary Law § 474-a would be used to determine counsel's fees) or negligence (in which case Shearer Essner would be entitled to one-third of the settlement amount), all but $976,759.002 was paid out to plaintiffs. Said funds are being held in Shearer and Essner's escrow account.
The primary issue to be determined herein is whether Shearer Essner is entitled to a fee based upon a settlement of a medical malpractice claim as against defendant Enzo or a negligence claim against this defendant. In the event the court finds that plaintiffs settled a medical malpractice claim with defendant Enzo, Shearer Essner would be entitled to a fee as determined by the schedule set forth in Judiciary Law § 474-a. Said section provides that counsel is entitled to: 30% of the first $250,000.00 recovered;
25% of the next $250,000.00 recovered;
20% of the next $500,000.00 recovered;
15% of the next $250,000.00 recovered;
10% of any amount over $1,250,000.00 recovered.
In the event the court finds that the claim settled against Enzo was one for negligence, Shearer Essner is entitled to one-third of the amount recovered pursuant to 22 NYCRR 691.20(E).
Relevant Deposition Testimony
Plaintiffs contend that their claim against Enzo sounded in medical malpractice on the grounds that this defendant took blood samples and inadequately analyzed same, resulting in the misdiagnosis. At his deposition defendant Goldfarb testified that he had been treating Mr. Spiegel for chronic aortic insufficiency and endocarditis. On September 23, 2003 after examining Mr. Spiegel based upon his complaints of several days of fever, Dr. Goldfarb prescribed blood tests. The blood was drawn by defendant Enzo. (See, deposition transcript of defendant Goldfarb, pp. 12-13, 51-52, 66 and 86).
David Bray, Enzo's laboratory manager who was serving as the microbiology supervisor at Enzo at the time of the extraction of Mr. Spiegel's blood testified at his deposition that Mr. Spiegel's sample was received and plated by Enzo on September 23, 2003. On September 25, 2003 Enzo issued a preliminary report of no growth in Mr. Spiegel's blood cultures. (See, deposition of David Bray, page 34; lines 20 through 25). Based upon the Enzo report Dr. Goldfarb consulted with an infectious disease specialist named Dr. Brief who informed Dr. Goldfarb that it was unlikely that there was endocarditis. (See, deposition transcript of Dr. Goldfarb, pp. 102-103). On September 30, 2003 Enzo issued a final report which reflected "no growth." (Id. pp. 90-93).
On September 29, 2003 Dr. Goldfarb directed that two more samples be taken of Mr. Spiegel's blood to test for endocarditis bacteria under a different set of circumstances than the original samples. (Id. pp. 115-116). Said samples were taken on September 30, 2003. (See, Bray deposition transcript, page 101, lines 7 through 9). Between September 30, 2003 and October 7, 2003 Dr. Goldfarb received preliminary reports from Enzo stating "no growth" (See, Goldfarb deposition transcript, page 122, lines 13 through 23).
On October 7, 2003 Dr. Goldfarb received a report from Enzo which reflected the presence of entrecoccus. (Id. pp. 124, 125). A second test on the sample resulted in a finding on Enzo's part that entrecoccus was not present, but that strep viridians was. (See, Bray deposition transcript, pp. 133-135). Dr. Goldfarb was sent a report from Enzo on October 9, 2003 reflecting the presence of strep viridians. (Id., page 145, lines 4-11).
At his deposition Dr. Goldfarb testified that had he been informed of the presence of bacterial growth in Mr. Spiegel's blood between September 30 and October 7, 2003 he would have treated Mr. Spiegel differently. Specifically, he would have had the patient admitted to the hospital for consultation with an infectious disease specialist in order to get plaintiff on a program of antibiotics.
Plaintiffs' Argument
Plaintiffs assert that the evidence in this case reveals that any liability on defendant Enzo's part must be found to be in the nature of medical malpractice as opposed to negligence. It is plaintiffs' position that defendant Enzo's analysis of the blood samples was conduct that bore a substantial relationship to the medical treatment rendered for Mr. Spiegel by Dr. Goldfarb.
Shearer Essner's Argument
Defendants take the position that the only allegations of wrongdoing asserted against defendant Enzo was negligence based upon this defendant's failure to timely take and plate the samples in violation of its own protocols as opposed to an analysis of the samples by this defendant. In his affirmation, David M. Shearer, Esq., the partner at Shearer Essner who handled this action on plaintiffs' behalf asserts that the evidence herein reveals that the only negligence on Enzo's part was that it was in excess of twenty-four hours from the time the samples were collected until they were centrifugated when Enzo's own protocol allows no more than sixteen hours between collection and centrifugation. As such is not based upon a deficient analysis by Enzo of the sample, Shearer Essner asserts that there is no claim of malpractice against this defendant, but instead one of negligence.
Shearer Essner assert that plaintiffs initially maintained a claim of malpractice on the basis that defendant Enzo failed to timely report known test results to Dr. Goldfarb. Specifically, claim Shearer Essner, defendant Enzo produced a copy of a report dated October 1, 2003 based upon the September 29, 2003 sample that noted a positive culture. The results of the report were not provided to Dr. Goldfarb until October 9, 2003. As will be discussed in more detail below, Shearer Essner asserts that plaintiffs changed their theory of the case as it applied to Enzo to negligence as a result of the depositions of two of Enzo's employees.
First, Robert Quinones, Enzo's director of internal systems, testified that the main computer system at Enzo printed the above referenced report dated October 1, 2003 on October 9, 2003. The reason, testified Mr. Quinones is that the records generated by Enzo's main computer records the date of the first reported lab results and dates all subsequent reports with that date. A different computer produces the reports which are furnished to physicians with the true date of the result contained in the report. The initial report dated October 1, 2003 did not reflect endocanditis and that particular report was not forwarded to Dr. Goldfarb because it was produced for internal purposes only. Mr. Quinones then identified the internally produced documents from Enzo which confirmed that the results which contained a culture did not exist until October 9, 2003. Such effectively "destroyed" plaintiffs' contention that defendant Enzo delayed reporting information that was available for eight days.
Mr. Quinones also identified documents which reflect that the September 23, 2003 cultures were set in excess of twenty-four hours after the samples were taken. It is undisputed that Enzo's own protocols required that samples be set within sixteen hours of their being taken.
Plaintiffs then deposed David Bray, who served as Enzo's laboratory manager in 2003. Mr. Bray testified, inter alia, that Enzo required its couriers to record pick-up and delivery times for samples and the specimen handler at Enzo was required to record the receipt times of same. Mr. Bray testified that he could not explain why the first set of cultures which were taken on September 23, 2003 were set in excess of twenty-four hours after collection. He did testify, however, that there was no delay on Enzo's part once the samples reached the lab.
Thus, Shearer Essner claims that defendant Enzo could not commit malpractice in rendering an incorrect analysis, but that as a result of its failure to follow its own protocols and set the cultures within sixteen hours of receipt that it failed to identify the bacterial growth and as a result the culture reports were delayed from being forwarded to Dr. Goldfarb until the second set of samples was analyzed.
As set forth above, the October 9, 2003 report contained results which reflected the presence of bacteria. It is Shearer Essner's position that had the samples taken on September 23, 2003 been properly processed and analyzed, the report to Dr. Goldfarb of the bacterial presence would not have been delayed until October 9, 2003.
Applicable Law
Interestingly enough, plaintiffs rely upon a line of cases in which plaintiffs actually argued that their claims sounded in negligence as opposed to medical malpractice which is the exact opposite of what plaintiffs herein contend. In those cases, the underlying issue is whether to apply the two and one-half year statute of limitations to the plaintiffs' claims or the longer three year limitations period applicable to negligence causes of action.
A claim sounds in medical malpractice where the alleged negligent conduct either "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician." Bleiler v. Bodnar, 65 N.Y.2d 65, 73 (1985).
The court notes that there have been determinations on the issue of the applicable statute of limitations in cases involving negligence on the part of laboratories, i.e., whether the one for medical malpractice applies or the one for negligence does. In those cases, the courts have held that the relation back doctrine did not apply to a malpractice claim asserted against a laboratory because a patient and a laboratory do not have a sufficiently continuing, relevant relationship. In none of those cases, however, has the court held that a cause of action may not be maintained by a plaintiff against a laboratory for medical malpractice based upon an isolated wrong committed by the laboratory and for which the medical malpractice action is timely commenced. See, e.g., McDermott v. Torre, 56 N.Y.2d 399 (1985); Culhane v. Schorr, 259 A.D.2d 511 (2nd Dep't 1999); McQuinn v. St. Lawrence Laboratory, 28 A.D.2d 1035 (3rd Dep't 1967). See, also, Doe v. Lam, 268 A.D.2d 206 (1st Dep't 2000). The court's determinations were all based upon whether the laboratories' respective analyses were a continuing part of the treatment rendered to the plaintiffs therein. Id.
It has also been held, however, that the failure to communicate relevant medical findings to a patient or his treating physician constitutes negligence and not medical malpractice. See, Yaniv v. Jaub, 256 A.D.2d 273 (1st Dep't 1988); Caracci v. State, 178 A.D.2d 876 (3rd Dep't 1991).
Where the core issue is the adequacy of defendant Enzo's blood testing and screening procedures as opposed to medical competence or judgment, the court will find that the claim sounds in negligence and not medical malpractice. See, Weiner v. Lennox Hill Hospital, 88 N.Y.2d 784 (1996).
Shearer Essner have adequately demonstrated to the court that plaintiffs' claims against Enzo sounded in negligence and not medical malpractice. As set forth above, none of the testimony reveals that defendant Enzo improperly handled or analyzed the September 23, 2003 sample once it reached the lab. The evidence indicates to the court that Enzo may have been negligent in failing to comply with its own protocols relating to the time in which to set a sample for analysis. See, Weiner, supra. Plaintiffs' position that Weiner is inapplicable to this matter on the grounds that that case involved a duty owed to the general public instead of to a particular patient is unavailing. In Weiner, the Court of Appeals held that a hospital's failure to have adequate screening procedures for its blood transfusion supply constituted negligence and not malpractice. The fact remains, however, that as in Weiner defendant Enzo's procedures for transporting and setting samples is applicable to all who give samples to Enzo. Such, to this court is likewise a duty owed to the general public. The actual analysis of same is a duty owed to the particular patient. There is no proof herein that Enzo may have incorrectly handled or analyzed the sample in the state it received it from its couriers. Plaintiffs' motion is therefore denied.
Shearer Essner's Cross-Motion
Shearer Essner cross-move for the imposition of statutory prejudgment interest at the rate of 9% permitted by CPLR 5001 (a) and (b) and CPLR 5004. CPLR 5001 contemplates pre-judgment interest in, inter alia, a breach of contract action. The court is not willing to view the instant dispute between the parties as the equivalent of an action for attorneys fees. Plaintiffs requested that Shearer Essner hold the funds at issue in its escrow account pending resolution of the issue. Shearer Essner complied with that request and the parties submitted it to the court for resolution after they were unable to resolve it among themselves. Under these circumstances, the court views Shearer Essner to be entitled to the $976,759, 02 in its escrow account in addition to any interest accumulated thereon in said account, if any. Thus, the cross-motion is denied.
Based upon the foregoing, it is directed that Shearer Essner is entitled to $976,759.02 held in its escrow account as and for a fee in connection with its representation of plaintiffs herein plus all accumulated interest, if any.
So Ordered.