Excerpts: Hindery v Adjei, 2018 N.Y. Slip Op. 31741.
- Defendants OHENEBA BOACHIE ADJEI, M.D. (“Dr. Boachie”), HOSPITAL FOR SPECIAL SURGERY, and JOHN DOE, (“defendants”) move, by order to show cause, and pursuant to CPLR § 3025, for leave to amend their Answer to include as affirmative defenses (1) superseding, intervening, and independent causes, (2) CPLR § 4545 collateral source offset, and (3) failure to mitigate damages.
- Defendants also seek leave to conduct discovery including (1) a physical examination of plaintiff LEO HINDERY, JR. (“plaintiff”), (2) a further deposition of plaintiff regarding additional surgeries and treatment from his last deposition on July 6, 2016 to the present, (3) authorizations for (a) United Healthcare, (b) Farah Hameed, M.D., (“Dr. Hameed”), and (c) New York Columbia Presbyterian Hospital (“NYPH”), (4) Arons authorizations for subsequent treating spine surgeons George DiGiacinto, M.D. (“Dr. DiGiacinto”), Lawrence Lenke, M.D. (“Dr. Lenke”), and Daniel Riew, M.D. (“Dr. Riew”), and (5) a copy of plaintiff, MARY PATRICIA WHEELER’S (“Mrs. Wheeler”) Facebook account.
- Plaintiffs LEO HINDERY, JR. and MARY PATRICIA WHEELER (“plaintiffs”) oppose the application. For the reasons discussed below, the motion is granted.
- Defendants conducted partial discovery based on Medicare and Aetna authorizations. Defendants allege that updated Aetna records indicate that plaintiff terminated that policy in 2016, but failed to provide authorizations for plaintiff’s new health insurer. On September 19, 2016, a status conference order directed plaintiff’s physical examination to be held within 120 days of the order.
- Defendants further highlight that because plaintiff’s past medical treatment was covered by Medicare and Aetna, and his future medical treatment will be covered by Medicare and a private insurance policy (most likely United Healthcare) or some other secondary payer health insurance policy, defendants are entitled to a collateral source offset for plaintiff’s past and future medical care.
- Defendants contend that after plaintiff left Dr. Boachie’s care in October 2013, he had seven additional spine surgeries between 2013 and 2017 and eight hand surgeries. Specifically, defendants highlight that three of the spine surgeries and four of the hand surgeries took place after plaintiff’s last deposition on July 3, 2016 and after the filing of the note of issue on September 16, 2016.
- Defendants also request properly executed authorizations for NYPH since plaintiff underwent two spine surgeries by Dr. Lenke and three additional spine surgeries by Dr. Riew.
- Lastly, defendants demand a copy of Mrs. Wheeler’s Facebook account to determine whether plaintiff’s activities displayed on his wife’s Facebook are consistent with his claims of functional limitations, including limitations of physical activity.
- In reply, defendants note that although plaintiffs agreed to the produce plaintiff for a further deposition so long as it was limited to a single three-to-four hours session, plaintiffs withdrew the offer when defendants reserved their right to additional sessions. Plaintiffs also agreed to a physical examination of plaintiff subject to their approval of the physician, and provided that the examination will not involve invasive testing, including EMG or radiographic imaging.
- Defendants also indicate that because plaintiff underwent multiple additional surgeries post-note of issue in December 2016, and January, February, March, July, and August of 2017, they were not able to assert this defense sooner (Sheets v. Liberty Alls., LLC, 37 A.D.3d 170, 171 [1st Dept. 2007]
- Likewise, defendants have sufficiently shown merit to their mitigation of damages defense by noting that plaintiffs have submitted a life care plan with an estimated total dollar value for plaintiff’s future life care and that plaintiffs’ expert life care planner intends to testify about plaintiff’s future medical expenses.
- Defendants explain that they intend to demonstrate that plaintiffs’ life care estimate is excessive, and because such expenses can be reduced dramatically for the same, if not better quality of care, plaintiffs have a duty to mitigate their future expenses for plaintiff’s life care plan (Edwards, 139 A.D.3d at 659, supra; Favia, 119 A.D.3d at 837, supra).
- As plaintiffs have agreed to produce Mrs. Wheeler’s Facebook Account from 2013-2017, they are directed to produce the same within 30 days of this order.