In Defense of the First Amendment
All too often, families and Victims are pressured into signing a "gag order" in return for compensation for injuries caused to themselves or their loved ones. In return for pledging never again to speak about what happened, they are given money. Only 3% of lawsuits that are filed ever go to trial, and most others are "settled" with silence. These "Contracts for Silence", are at the root of the problem of medical malpractice. Were there to have been wide knowledge of the extent of the problem, the public would have demanded better medical regulation long ago. This has started to change. The recent new regulation on the part of the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO") to require total disclosure of medical mistakes is recognition that a public policy of rejection of all silence is now needed.
On July 19, 2001, we filed a lawsuit against Columbia Presbyterian Hospital for the recovery our First Amendment Rights. We asked the Hospital to pay us the compensation they agreed to. We petitioned the Court to relieve us of the "Contract for Silence" we were coerced into signing by the Judge and our former attorney.
Prior to initiating the current lawsuit we appealed
Judge Heitler's decision to the Appellate Division, First Department. The
Court rejected our appeal. As described in section "Coerced Contract"
the position of the Court is that once a contract is signed, the matter is
ended. Traditionally, a coerced contract is invalid. But this is not the
case in New York State. Those legally knowledgeable will recognize this as
an example of a "State Action" that removes our right to free
speech. Our appeal was grounded on previous United States Supreme Court
opinions (Shelley v. Kraemer, 334 U.S. 1 (1948)). State Action cannot be
used to remove constitutional rights such as the First Amendment Right.
The New York State Appellate Court did not consider itself bound by United
States Supreme Court decisions.
In July, 2001, we filed our latest lawsuit on grounds that Seth's death was due to a violation of a New York State Law and therefore criminal in nature. We argued this point before Judge Heitler as well as to the Appellate Division but our plea was ignored.
As we have shown, all agencies of Government sought to cover up the true nature of Seth's death. This includes the Courts. Justice Bransten of the New York State Supreme Court in Manhattan dismissed our suit on the grounds of Res Judicata. She acknowledged that we did raise the issue of crime that neither the Judge nor the Appellate Court commented upon in the initial suit. Justice Bransten concluded that it didn't matter - the case was closed.
In stunning terms, the New York State Court goes on record to state that in order to obtain compensation, we must be silent about the crime of our son's death. As was true in the Appellate Court rejection of a well known United States Supreme Court decision, in our second suit the New York State Court says that silence regarding a crime is a mandatory precondition to receive compensation. This flies in the face of well decided law that silence regarding crime is never permissible.
Justice Bransten's opinion is the latest example of the extraordinary lengths the Court will go to to protect the wealthy and politically powerful defendant (New York Presbyterian Hospital) and ignore the rights of the Victim.
We will pursue an appeal.
Click for Speken's Summons and Complaint
Click for Columbia's Motion to Dismiss
Click for Speken's Reply to Columbia's Motion to Dismiss
Click for Columbia's Support of Their Motion to Dismiss
Click for Speken's Final Reply ("Surreply")
Click for Oral Argument
Click for Decision
Click to Return to Preface