STATE OF NEW YORK
COURT OF APPEALS
RALPH H. SPEKEN and STEPHANIE Z. SPEKEN,
as Co-Administrators of the Estate of SETH AFFIDAVIT IN
B. SPEKEN, deceased, and RALPH H. SPEKEN : SUPPORT
and STEPHANIE Z. SPEKEN, Individually,
New York County
Clerk’s Index No.
– against –
COLUMBIA PRESBYTERIAN MEDICAL :
STATE OF NEW YORK )
COUNTY OF NEW YORK )
RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN, M.S., being duly sworn, depose and say:
We are the pro se plaintiffs-appellants in this action. We are personally familiar with the facts and circumstances set forth below, and submit this affirmation in support of plaintiffs’ motion, pursuant to CPLR 5602(a)(1)(i), for leave to appeal to this Court from the order of the Appellate Division, First Department, entered on April 29, 2003. Speken v. Columbia Presbyterian Medical Center, ___ A.D.2d ___, ___N.Y.S.2d___ (1st Dep’t April 29, 2003). The Appellate Division’s order affirmed, on the law, the order of the Supreme Court, New York County (Bransten, J.), entered on March 18, 2002, which had granted the motion by defendant-respondent Columbia Presbyterian dismissing the complaint.
2. By notice of appeal dated April 4, 2002 (R. 2), plaintiffs timely appealed to the Appellate Division, First Department, from the Order of the Supreme Court, New York County (Bransten, J.), entered on March 18, 2002, which granted Columbia Presbyterian’s motion to dismiss the complaint on the ground of res judicata.
3. By order dated April 29, 2003, a copy of which is annexed hereto as Exhibit AAA along with notice of entry, the Appellate Division, First Department affirmed Supreme Court’s order.
4. The Appellate Division’s order was served with notice of entry by mail on May 9, 2003.
5. Since this motion has been served on June 11, 2003, it is timely.
6. Under CPLR 5602(a)(1)(i), the Court of Appeals has jurisdiction to entertain this motion and plaintiff’s proposed appeal. The Appellate Division’s order is a final order which finally determines this action. Siegel, New York Practice, §527 at 363 (3d Ed. 1998); see also, Karger, The Powers of the New York Court of Appeals, §11 at 48; §12 at 53-59 (3d Ed. 1997).
7. Moreover, since the Appellate Division’s order was unanimous, it is not appealable as of right under CPLR 5601(a) and leave to appeal under CPLR 5602(a)(1)(i) must first be sought and obtained.
Question of Law Presented For Review
8. A concise statement of the question of law presented for review, is as follows:
Whether a stipulation of settlement in a medical malpractice action which calls for the plaintiffs’ silence about a crime is unenforceable as violative of the First Amendment?
The Question of Law Presented
Merits Review By This Court
9. This question of law merits review because it provides this Court with the
opportunity to address the pervasive use of Contracts for Silence in medical malpractice, one of the nation’s leading causes of death.
10. The facts are set forth in detail in the parties’ briefs in the Appellate Division.
11. On October 11, 1994, plaintiffs commenced a wrongful death action
against defendant and others for the death of their son, Seth, at defendant Columbia Presbyterian Hospital on August 27, 1993.
12. On July 8, 1999, there was a purported open court settlement in which
plaintiffs ostensibly agreed to a settlement in the sum of $500,000. In return, plaintiffs agreed to never again speak about the case, and to expunge from the Internet their website entitled “A Death in the Hospital” (http://www.med-malpractice.com). The website deals extensively with Seth’s death.
13. The terms of the settlement were incorporated into a general release.
14. By notice of motion dated October 24, 1999, plaintiffs moved to vacate the settlement upon the ground that their consent to the settlement had been procured by fraud. Plaintiffs contended that the settlement agreement unlawfully took away their First Amendment right of free speech, and requested that the Court restore such right to them.
15. By order dated March 31, 2000 , the Supreme Court, New York County (Heitler, J.) denied plaintiffs’ motion. The Court explained in pertinent part:
. . . a review of the record discloses no competent evidence of
fraud, duress or other cause sufficient to invalidate this settlement
[citation omitted]. Rather, it is clear that, at the time that the
stipulation was made, plaintiffs were represented by counsel,
knowingly and voluntarily entered into the stipulation in open court,
and indicated that they were satisfied with the agreement and that
their judgment was not impaired that day.
16. The Supreme Court did not address plaintiffs’ First Amendment argument.
17. In their appeal from Justice Heitler’s order , plaintiffs argued, inter alia, that the stipulation of settlement should be vacated upon the ground that it was an unlawful contract for silence which violated their First Amendment right of free speech.
18. In affirming Supreme Court’s order, the Appellate Division, First
Department, in its order dated December 21, 2000, concluded that “[t]here is no basis shown to set aside the stipulation of settlement entered into in open court after full allocution by the court”.
19. Consequently, on July 19, 2001, plaintiffs commenced the instant action
against defendant Columbia Presbyterian to vacate the settlement of the wrongful death action . The complaint alleges two causes of action. The first cause of action alleges that the confidentiality provisions of the settlement in which plaintiffs are required to expunge their website, are illegal because they require plaintiffs to remain silent about a crime (the hospital’s malpractice constituted the crime of reckless endangerment in the second degree since it violated a state law in connection with Seth’s death [New York State Mental Hygiene Law §33.04]). The second cause of action alleges that the confidentiality provisions are violate public policy in that they wrongfully suppressed plaintiffs’ First Amendment rights and their moral responsibility to the public as well as their late son to discuss and disseminate information regarding defendant’s criminal behavior.
20. Plaintiffs sought a judgment vacating that provision of the parties’
settlement as requires them to keep silent about defendant’s criminal conduct and to expunge their website.
21. Columbia Presbyterian moved to dismiss the complaint upon
the ground that the instant action was barred by res judicata because the validity of the settlement was addressed in the prior action. In opposition , plaintiffs argued that the instant action seeks to litigate issues that were raised in the prior action but were never decided – such as the criminality of defendant’s conduct and the legality of the provision in the General Release requiring their silence about defendant’s criminal behavior. Plaintiffs contended that since neither Justice Heitler nor this Court addressed these particular issues, this action was not barred by res judicata.
22. By order dated March 8, 2002 , Supreme Court, New York County
(Bransten, J.) granted the hospital’s motion upon the ground that “res judicata…precludes [plaintiffs] from bringing this second action on matters that the parties litigated in the prior action”.
23. In affirming Supreme Court’s order, the Appellate Division, First
Department, in its April 29, 2003 order, explained:
. . .if plaintiffs believed that their public policy argument was
overlooked, their remedy was reargument, not a new action. In any
event, the settlement agreement, which prohibits plaintiffs from
discussing or otherwise disseminating information about the
malpractice action or their decedent’s care and treatment at
defendant hospital, does not offend the public policy against prior
restraint of speech. . .
The Appellate Division Overlooked
Plaintiffs’ Principal Argument that
The Stipulation of Settlement Violated
Plaintiffs’ First Amendment Rights Regarding
Remaining Silent About a Crime
24. We respectfully submit that the Appellate Division overlooked our principal argument that the settlement of the underlying action should be vacated because it mandated our silence about a crime. Since the hospital’s malpractice constituted the crime of reckless endangerment in the second degree in that it violated New York State Mental Hygiene Law §33.04 in connection with Seth’s death, the stipulation of settlement, which prohibits us from discussing or otherwise disseminating information about the malpractice action and our deceased son’s care, violates our First Amendment rights.
25. The Appellate Division only found that the settlement agreement did not offend the public policy against prior restraint of speech. However, the Court did not address our main argument that the settlement agreement unconstitutionally prohibits our speaking about the crime committed by Columbia Presbyterian.
26. This issue is of paramount national importance. The public is demanding with increasing success that secret settlements (that were also sanctioned by the Courts and also silenced crimes) be set aside. For example, an attempt by “Contracts for Silence” to protect priests from exposure for the widespread sex abuse that are being uncovered today, has been found to be unacceptable to the Public.
27. The same principle applies to medical malpractice and even more so where, as here, the malpractice was criminal in nature. Medical issues are of equal if not greater concern to the Public than priestly sex abuse because the wrongdoings of physicians lead to either extreme physical suffering or death.
28. In Upper Nyack v. Missionary Alliance, 143 Misc.2d 414, 540 N.Y.S.2d 125, 126 (Sup. Ct. Rockland Co. 1988), the court, in vacating a contract on public policy grounds, explained that “any act, promise or agreement designed or intended to accomplish furtherance or effectuation of unlawful purpose is unlawful, and every such promise or agreement is void and unenforceable.”
29. Here, similarly, since the settlement of the underlying action required plaintiffs silence about a crime, it should be set aside.
30. Contracts for Silence in medical malpractice protect the negligent healthcare providers’ interests. Although these contracts may sometimes facilitate settlement of cases, they have no demonstrable public good since they keep from the public critically important information about medical malpractice. Armed with such information, the public would demand needed change in the healthcare system to alleviate the underlying problems.
31. The Official Compilation, Codes, Rules and Regulations of the State of New York, 22 Judiciary (A), § 216.1 Sealing of Court Records, succinctly reflects these concepts of the Restatement of the Law of Contracts, Second, as relates to Contracts for Silence, as follows: “Except where otherwise provided by statue or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties [emphasis added].”
32. Contracts for Silence in medical malpractice cases harms the “interests of the public” particularly where, as here, the defendant’s malpractice rose to the level of a crime. The Court is mistaken in permitting these non-disclosure contracts in medical malpractice. This policy must be reversed for the good of the public interest.
33. Although the self-serving interests of the Hospital and involved physicians are promoted by our Contract for Silence, the interests of the public are not. We estimate that since its inception, there have been over 100,000 visits to our website (http://www.med-malpractice.com); the visits continue to increase. There is a deep interest on the part of the public in this material because safe health care is of paramount interest to everyone.
34. Each signed contract removes from the public view information that can contribute to the safety of others. As pointed out in the Institute of Medicine Report, 44,000-98,000 people die every year from negligent medical acts. In New York State, during the year 1984, Dr. Lucian Leape in the Harvard Medical Malpractice Study estimated nearly 7,000 people lost their lives due to medical malpractice (New England Journal of Medicine 324: 370-384, 1991).
35. It is dangerous for the Government and Courts to impose silence on any matter. This is one of the most essential, perhaps the most essential, lesson from the American experience and is embodied in the First Amendment.
36. The Introductory Note to the Restatement of the Law of Contracts, Chapter 8 at page 2 states as follows:
In general, parties may contract as they wish, and courts will
enforce their agreements without passing on their substance.
Sometimes, however, a court will decide that the interest in
freedom of contract is outweighed by some overriding interest of
society and will refuse to enforce a promise or other term on
grounds of public policy. Such as decision is based on a reluctance
to aid the promisee rather than on solicitude for the promisor as
such. Two reasons lie behind this reluctance. First, a refusal to
enforce the promise may be an appropriate sanction to discourage
undesirable conduct, either by the parties themselves or by others
37. We submit that this Court should adopt this position. The Hospital’s “conduct” in its treatment of our son was, at a minimum, undesirable, and rose to the level of criminally negligent homicide. The Hospital’s criminal actions should not be shielded from the view of the public which can only benefit from a complete and public airing of the details of what really happened. The resulting public knowledge would lead to increased demands for improved medical safety. The great national interest in this case, as underscored by the overwhelming number of visits to our website, is proof that the public wants and needs the information the Hospital had sought to keep secret. This secrecy must not be a pre-condition for the financial compensation the Hospital agreed to provide us.
38. The Courts must stop permitting Contracts for Silence in medical malpractice actions, and must vacate the untold numbers of such contracts that families and victims have signed in order to obtain often needed compensation from medical providers. These contracts have contributed in a major way to the vast amount of death and suffering that has occurred due to medical malpractice. Were the extent of the problem fully understood by the public, the legislature would enact a much more effective regulatory systems for medical practice than now exists. There is a deep injustice in these non-disclosure contracts in that they have been counter to the public good.
39. Contracts for Silence in medical malpractice, such as the purported contract signed by us in response to our lawyer’s coercion and fraud, are obstructive of justice. They remove from the public view information that can be used in the future to protect public safety. These contracts obstruct justice since they ultimately have an impact on the safety of others. This, in fact, is why the Joint Commission on the Accreditation of Healthcare Organizations (“JCOAH”) demands that families and victims now be told when adverse outcomes are due to medical negligence. This understanding that information must be revealed is felt by the JCOAH to be the best way of encouraging hospitals and medical providers to be more careful. It is doubtful that in our case, the Hospital would have employed illegal restraints on our son if it knew that others might be made aware of their capacity to perform such an illegal act.
40. Lawyers should stop writing non-disclosure contracts in medical malpractice, the parties should stop signing them, and the Courts must stop sanctioning them because they obstruct justice.
41. Reviewing several sections of the United States Code dealing with
obstruction of justice, Professor Stephen Gillers (31 Hofstra Law Review 101 2002) states (p103): “I conclude that contractually binding non-cooperation agreements, when made for the purpose of denying others information that could support civil or criminal liability, obstruct justice under federal law. For that reason alone, courts should not enforce them or so order them.”
42. Certainly non-disclosure contracts in medical malpractice actions prevent the victim or family from sharing information voluntarily so that future victims might benefit from the information. This is an injustice to future victims and against the public interest.
43. Our attorney, Thomas Moore, Esq., defrauded us into believing that he would assist us in retaining our website by disguising the names of the negligent physicians, physician trainees, and Hospital. He fraudulently promised to defend the altered website from any challenge by the Hospital. He subtly coerced us into signing the General Release by stating that if we did not sign, he would resign because he did not have the skills to go to trial. And as a second reason for signing, he claimed that the Hospital was going to initiate a defamation suit against us were we not to sign. Given the complexity of the situation, the belief that we would be able to keep our website in altered form, and the fact that the Judge was demanding the case be resolved, we reluctantly signed the stipulation. We were convinced by the fraudulent lawyer that we would never have been able to obtain another lawyer, the case would be dismissed by the judge, and we would then face a defamation suit by the Hospital. Our will was overcome by the outrageous and skillful fraud of Mr. Moore.
44. Due to the laxity of medical regulation that is occurring nationally, the net result of medical malpractice is a vast increase in otherwise preventable deaths. Contracts for Silence, such as the one we were forced to sign by an unethical lawyer, perpetuate this problem and impede solutions.
45. This Court has the authority to vacate that portion of the General Release that requires our silence and uphold that portion which requires Columbia Presbyterian Hospital to pay compensation for our son’s death. Silence in this bargain is obstructive of justice. It violates our ability to exercise our First Amendment Right. It favors the interests of the Hospital and its staff at the expense of the public. Given recent history, the interests of the public must come first.
46. “Errors” committed by doctors, other healthcare professionals, and hospitals comprise a national problem of immense proportions. The Institute of Medicine has estimated that the rate of death from such “errors” is between 44,000 and 98,000 people each year (To Err is Human. Committee on Quality of Health Care in America. Washington, D.C.: National Academy Press, 2000 at p. 26). To put the death rate into more understandable terms, it amounts to one jumbo jet aircraft crashing every day of the week for a year with the loss of life of all aboard.
47. In response to what amounts to a major national healthcare crisis, the JointCommission on Accreditation of Healthcare Organizations (JCAHO) established a new policy in the year 2001 (http://www.jcaho.org/news+room/press+kits/hospitals+face+new+jcaho+patient+safety+standards+on+July+1.htm). In part, the policy states that “. . . the standards make clear the hospital’s responsibility to tell a patient if he or she has been harmed by the care provided”. The new policy definitively rejects a policy of silence regarding medical error. Hospitals will not receive accreditation if they cannot demonstrate a disclosure policy.
48. This policy from the highest accreditation body of medicine has arisen from the realization that silence about medical malpractice has been the single greatest factor in contributing to not only a failure of appreciation as to the extent of the problem but also to the task of developing a national framework for solutions.
49. The New York Patient Health Information and Quality Improvement Act of 2000 (Chapter 542 of the Public Health Law) takes cognizance of the emerging change in Public Policy regarding secrecy and medical malpractice. §1 (e) (i) of this act requires the physician to post a statement on the Internet website of the New York State Health Department regarding the number of “court judgments and arbitration awards” within a 10 year period. The consideration for our silence offered by Columbia Presbyterian Hospital was certainly in the nature of an award arbitrated by Judge Heitler after personal discussions with the Hospital. As such, that portion of the General Release that required our silence in order to obtain compensation is against the public policy of New York State.
50. In summary, the settlement of malpractice to settle with silence is counter to the public good. Vast amounts of crucial information have been kept from the Public and has contributed to the problem. There are multiple parallels in the issue that has emerged regarding sex abuse in the Catholic Church and the perpetuation of the problem by non-disclosure contracts that prevented the Public from learning the extent of the problem.
51. The compelling issue of law merits review by the highest court of this State. In view of the staggering amount of deaths every year caused by medical malpractice, Contracts for Silence shield discussion of this issue from the public. Clearly, these contracts should not be enforced at all, but particularly so where the negligence of the medical practitioners rises to the level of a crime.
WHEREFORE, as well as for the reasons set forth in plaintiffs’ brief in the Appellate Division, plaintiffs respectfully request that the Court of Appeals grant leave to appeal as requested herein
Dated: June 11, 2003
Bronxville, New York
Stephanie Z. Speken, M.S.
Ralph H. Speken, M.D.