H. Speken; and (2) compelling the plaintiff Ralph H. Speken to appear for an examination before trial with respect to those issues raised by the proposed counterclaim; and (3) compelling the plaintiff Ralph H. Speken to appear for a further examination before trial; and (4) for such other and further relief as this Court may deem just and proper.
This personal injury and wrongful death action was commenced on October 11, 1994 with the filing of the Summons and Verified Complaint with the County Clerk (Exhibit A). The plaintiffs, Ralph H. Speken and Stephanie Z. Speken, sue on behalf of their deceased son Seth S. Speken. On November 8, 1994, a Verified Answer was served on behalf of the defendant (Exhibit B) Contemporaneous with the service of a Verified Answer, a Demand for a Bill of Particulars was served (Exhibit B) As the Court will note, the defendant’s Verified Answer contains a “First, Separate and Distinct Affirmative Defense” reading as follows:
7. The injuries and damages of the plaintiffs, RALPH H. SPEKEN and STEPHANIE Z. SPEKEN, for which these causes of action have been instituted, were caused wholly or in part through the culpable conduct and contributory negligence on the part of said plaintiffs and therefore the amount of damages, if any, shall be diminished in the proportion which said conduct attributable to said plaintiffs bears to this defendant’s conduct, if any, which caused the damages. (See Exhibit B)
The Court should note that this “Affirmative Defense” is not the more commonly seen “culpable conduct” affirmative defense, wherein it is claimed that the person sustaining the physical injuries contributed in some degree to those injuries. Here, the defendant’s “First, Separate and Distinct Affirmative Defense” addresses itself to the actions of the representative plaintiffs. Through this affirmative defense, it is claimed that the actions of those representative plaintiffs contributed to the personal injuries and ultimately the death of the plaintiffs’ decedent.
A Verified Bill of Particulars was served on or about January 16, 1995 (Exhibit C) and a preliminary conference was held on January 20, 1995 (see Preliminary Conference Order, attached as Exhibit D)
Plaintiffs claim that the decedent’s death resulted from the improper use of restraints on the decedent during an admission to Presbyterian Hospital. Restraints were necessary because the decedent began to suffer the effects of withdrawal from a class of psychiatric medications called benzodiazepines. It is defendant’s claim’ that decedent became dependent upon benzodiazepines as a consequence of Dr. Ralph Speken’s medical and psychiatric malpractice, and therefore the use of restraints would not have been necessary but for Dr. Speken’s acts. For a period of 17 months prior to the decedent’s admission to Presbyterian Hospital, Dr. Ralph H. Speken (a licensed psychiatrist), regularly provided to, or prescribed for, the decedent various medications, including benzodiazepines, such that the decedent became dependent upon benzodiazepines. The plaintiff kept no treatment records for the decedent. He provided Valium to the decedent without a prescription. The plaintiff also withheld vital historical information from the physicians at Presbyterian Hospital when the decedent was admitted, which effectively handcuffed their ability to treat the decedent and prevent the withdrawal symptoms which, when manifested, required the use of restraints.
If blame is to be assessed for decedent’s death, it is defendant’s position that fault lies with Dr. Ralph Speken. In that Presbyterian Hospital now runs the risk of financial damage as a result of being named as a defendant in this lawsuit, Presbyterian Hospital is entitled to assert a claim for indemnification and/or contribution against the plaintiffs, based on Dr. Ralph H. Speken’s own malpractice and negligence.
Seth Speken, the decedent, was admitted to Presbyterian Hospital on August 21, 1993, and remained admitted until his death on August 27, 1993. For approximately two years prior to this admission, he was treated by Dr. Ralph Speken for psychiatric and medical problems.
The exact nature of Dr. Speken’s treatment of the decedent is unclear due to the obstruction of inquiry into this area at Dr. Speken’s deposition and due to Dr. Speken’s failure to keep treatment records. However, the record of Desai’s Pharmacy and Dr. Speken’s “control” medication prescription records establish that, for at least 17 months prior to the decedent’s death, Dr.
Speken regularly prescribed for the decedent numerous medications, including benzodiazepines such as Xanax and Klonopin (Clonazepam)
Desai’s Pharmacy was one pharmacy used by the decedent to fill prescriptions. The Desai’s Pharmacy record (Exhibit F) lists the following prescriptions issued to Seth Speken. In each case, the prescribing doctor is the plaintiff, Dr. Ralph Speken.*
| DATE | MEDICATION |
| 3/14/92 | Xanax |
| 4/28/92 | Donnatal |
| 5/18/92 | HCTZ Tab El |
| 5/18/92 | Xanax |
| 5/22/92 | Buspar |
| 6/9/92 | Erythromycin |
| 6/17/92 | Xanax |
| 6/24/92 | Xanax |
| 9/19/92 | Xanax |
| 11/17/92 | Xanax |
| 1/9/93 | Hydroxyzine Tabs |
| 1/12/93 | Hydroxyzine HCL |
| 1/14/93 | Klonopin Tabs |
| 1/22/93 | Klonopin Tabs |
| 2/2/93 | Xanax |
| 2/25/93 | K-Phos |
| 3/2/93 | Xanax |
| 3/17/93 | Polycitra K Syp |
| 4/2/93 | Polycitra K Syp |
| 4/16/93 | Xanax |
| 5/7/93 | Klonopin Tabs |
| 6/14/93 | Xanax |
| 7/13/93 | Hydroxyzine HCL |
| 7/28/93 | Zoloft |
| 7/28/93 | Trancopal |
| 7/30/93 | Hydroxyzine HCL |
| 8/5/93 | Xanax |
| 8/14/93 | Reserpine |
| 8/17/93 | Amitriptyline |
| 8/21/93 | Amitriptyline |
* Two other prescriptions were filled by or for the decedent at Desai’sPharmacy which were written by a doctor other than Dr. Speken.
Dr. Speken kept no record of his treatment of the decedent beyond his “control” medication prescription records (Exhibit G). He kept no treatment records reflecting any examinations or evaluations he may have performed. He kept no records regarding prescriptions of “non-control” medications he wrote for his son, despite conceding that he prescribed “non-control medications such as Elavil, Bethanechol and Zoloft. (See plaintiff’s EBT transcript, p. 119-120, Exhibit H.) The Court will note that Dr. Speken’s “control” medication prescription records cover only three medications (Xanax, Donnatal, Clonazepam), while the Desai’s Pharmacy record establishes that, at a minimum, Dr. Speken prescribed thirteen different medications for his son. He has no record of prescribing those other ten medications. Defendant maintains that Dr. Speken’s treatment was incomplete and inadequate since it consisted only of prescribing medications, some of which are known to run the risk of dependency. Dr. Speken did not perform any form of therapy in conjunction with the prescription of medications, nor did he evaluate his son, examine his son, interview his son with respect to his son’s psychiatric and medication problems, or provide any treatment beyond prescribing medications. He kept no records pertaining to his treatment of his son beyond the “control” medication records, which in fact represent only a portion of those medications which he was actually prescribing. The end result of Dr. Speken’s mistreatment of his son was his son’s benzodiazepine dependency, subsequent development of withdrawal symptoms and, ultimately, the need to restrain the decedent.
Additionally, at his deposition, it came to light that Dr. Speken had, without a prescription, provided his son with Valium on at least one occasion. The Valium (another benzodiazepine) was in the family household because Stephanie Speken, the decedent’s mother and a plaintiff in this action, was using it. Dr. Speken took medication which had been obtained for Stephanie Speken’s usage and gave it to his son, without writing a prescription and without keeping a record. (See p. 107-109, Exhibit H.)
On August 21, 1993, the decedent had a fainting and seizure episode at home, and was taken to the Allen Pavilion, part of Presbyterian Hospital, by ambulance. The Ambulance Call Report (Exhibit I) lists the only then-current medication as Amitriptyline (Elavil). Similarly, the “Emergency Services Triage” sheet, from the decedent’s Presbyterian Hospital chart (Exhibit J), lists Amitriptyline as the decedent’s only then- current medication. Thus, it is further defendant’s claim that Dr. Ralph Speken, who concedes that he was present with his son in the Emergency Room, withheld information regarding his son’s then current usage of Xanax from the Emergency Room staff, thereby preventing and/or delaying appropriate treatment.
Plaintiff’s counsel initially refused to supply this office with a copy of all records maintained by Dr. Speken concerning his treatment of the decedent. However, at the preliminary conference, held on January 20, 1995, this honorable Court urged plaintiff’s counsel to do just that. The only such records which we have obtained from plaintiff’s counsel are the aforementioned “control” medication prescription records, legible copies of which were not, in fact, provided to us until approximately March 13, 1995. The records of Desai’s Pharmacy were not obtained until January, 1995. Thus, it was not until well after an Answer was interposed on behalf of Presbyterian Hospital that specific information detailing the nature and scope of Dr. Speken’s treatment of his son was obtained. In point of fact, our efforts to explore this area are still being frustrated, as a significant amount of inquiry into Dr. Speken’s treatment of his son was groundlessly obstructed at Dr. Speken’s deposition.
The first session of Dr. Speken’s deposition took place on October 10, 1995. At this deposition, plaintiff’s counsel adopted the position, seemingly without any basis in law, that any and all questioning into Dr. Speken’s medical background, credentials, experience, employment, and treatment of his son would be obstructed. The deposition was not finished at that time.
On October 12, 1995, a status conference was held before this honorable Court. Plaintiff’s counsel was advised that the defendant intended to amend its Answer to assert a counterclaim for indemnification and contribution. At plaintiffs’ counsel’s insistence, depositions were to continue notwithstanding the pendency of the within motion.
On October 23, 1995, the second session of Dr. Speken’s deposition was held. Just as at the first session, all questions into Dr. Speken’s treatment of his son, and related areas, were obstructed. However, over and above this area of inquiry, numerous questions with absolutely no connection to Dr. Speken’s treatment of his son were obstructed, again seemingly without any basis in law. For that reason, an application to the Court for both a deposition of Dr. Speken relating to the counterclaim and a further deposition with respect to other areas of inquiry which were obstructed is being made. At the time of the preparation of this affirmation, the transcript from the second session of Dr. Speken’s deposition was not available. In any event, the motion is being made at this time due to the Court’s directive, and, at least insofar as this motion discusses questioning which was obstructed at the second session of the deposition, is based on your affirmant’s notes from that deposition.
Leave should be granted to the defendant to serve a Verified Amended Answer containing a counterclaim for indemnification and/or contribution since amendments to pleadings shall be freely granted, especially in a case such as this where there has been no prejudice to the plaintiffs.
(several pages of legal arguments are then presented as to why Columbia Presbyterian Hospital should be allowed to bring a counterclaim against me. The final portion of what I have included from Columbia’s charge contains a precedent case which, Columbia asserts, is “…remarkably similar to the case at bar.”)
this claim, and permitting the assertion of a counterclaim for indemnification and/or contribution achieves the same result in more efficient fashion.
The defendant’s claim for indemnification and/or contribution against Dr. Ralph Speken can, under the law, be asserted either asa counterclaim, in a third party action, or even in a separate action. All counterclaims in New York are “permissive”; where a defendant has a claim against a plaintiff, that claim is not forfeited if it is not asserted as a counterclaim. The claim still can be asserted in a separate action against the plaintiff. See, N.Y. Civ. Prac. Law 3019, commentary at 205 (McKinney 1991).
In further commenting upon CPLR 3019 (the statute which defines a counterclaim), Professor Siegel sets forth, as an example, a case which is remarkably similar to the case at bar. Dr. Siegel writes
where, for example, P sues on behalf of his child for the latter’s personal injuries, and thus stands as a representative in the suit, D may counterclaim P for indemnification based on whatever portion of fault P may have contributed to the injuring occurrence. There P is being counterclaimed as an individual even though he has brought suit as a representative, but if a counterclaim were not allowed in that instance D would just “implead” P under CPLR 1007, with the net result that D has been required to bring P into an action in which P has been present all the while, an absurdity not mandated by the same – capacity rule. N.Y.
Civ. Prac. Law 3019, commentary at 208-209 (McKinney 1991).
The within motion should be granted in all respects, and the defendant permitted to serve a Verified Amended Answer containing a counterclaim for indemnification and/or contribution, so as to avoid the “absurdity” of Dr. Ralph Speken being both a plaintiff and a third-party defendant in the same lawsuit.
(Columbia’s document continues with other legal arguements as to why the Court should permit a counterclaim.
These arugments were successful, and Judge Sklar permitted Columbia to institute a counterclaim against me. The decision was published in the New York Law Review on April 1, 1996)