To Be Argued By:
Ralph H. Speken, M.D.
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SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION–FIRST DEPARTMENT
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RALPH H. SPEKEN and STEPHANIE Z. SPEKEN,
as Co-Administrators of the Estate of SETH B. Speken,
deceased, and RALPH H. SPEKEN and STEPHANIE Z.
SPEKEN, Individually,
Plaintiffs-Appellants
-against-
COLUMBIA PRESBYTERIAN MEDICAL CENTER,
Defendant-Respondent.
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BRIEF OF PLAINTIFFS-APPELLANTS
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RALPH H. SPEKEN, M.D.
STEPHANIE Z. SPEKEN, M.S.
Plaintiffs-Appellants Pro Se
81 Pondfield Rd #179
Bronxville, New York 10708
(212) 374-4598
New York County Clerk’s Index No. 113895/01
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION – FIRST DEPARTMENT
RALPH H. SPEKEN and STEPHANIE Z. SPEKEN, :
as Co-Administrators of the Estate of SETH B. SPEKEN,
deceased, and RALPH H. SPEKEN and STEPHANIE Z. :
SPEKEN, Individually,
: New York County Clerk’s
Plaintiffs-Appellants,
Index No. 113895/01
-against-
COLUMBIA PRESBYTERIAN MEDICAL CENTER,
Defendant-Respondent. :
BRIEF OF PLAINTIFFS-APPELLANTS
PRELIMINARY STATEMENT
Plaintiffs-appellants Ralph H. SPEKEN and Stephanie Z. SPEKEN, as Co-Administrators of the Estate of Seth B. SPEKEN, deceased, and Ralph H. SPEKEN and Stephanie Z. SPEKEN, Individually, respectfully submit this brief in support of their appeal from the order of Supreme Court, New York County (Bransten, J.), dated March 8, 2002, which granted defendant’s motion to dismiss the complaint.
ISSUES PRESENTED FOR REVIEW
(1) Whether silence can be bargained for in settlement of an action where a law has been broken?
(2) Whether contracts for silence in medical malpractice cases should be totally abolished as being counter to public policy and the public good?
(3) Whether the defendant hospital must pay compensation even though the Spekens have no duty to award the Hospital with Silence?
STATEMENT OF FACTS
The Settlement of the Underlying Action
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.
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.
The terms of the settlement were incorporated into a general release.
Plaintiffs’ Motion to Vacate the Settlement
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.
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.
The Supreme Court did not address plaintiffs’ First Amendment argument.
In their appeal to this Court 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.
In affirming Supreme Court’s order, this Court, 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”.
The Instant Action to Vacate the Settlement
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.
Plaintiffs seek 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.
The defendant hospital 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 contend that since neither Justice Heitler nor this Court addressed these particular issues, this action is not barred by res judicata.
The Order Appealed From
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.”
POINT I
THIS ACTION IS NOT BARRED BY RES JUDICATA
BECAUSE THE STIPULATION OF SETTLEMENT
CONSTITUTES AN UNLAWFUL CONTRACT FOR SILENCE
THAT VIOLATES PUBLIC POLICY AND THE PUBLIC GOOD
Initially, contrary to Supreme Court’s conclusion that res judicata bars this action, plaintiffs have the legal right to bring this action to set aside the underlying stipulation of settlement. Since the stipulation of settlement of the underlying action was definite and complete on its face, and spread upon the record in open court, it constituted a valid and binding contract between plaintiff and defendant and could be set aside on equitable grounds only by way of a plenary suit. Raphael v. Booth Memorial Hospital, 67 A.D.2d 702, 703, 412 N.Y.S.2d 409, 411 (2d Dep’t 1979); Kraft v. Vassilaros & Sons, 43 A.D.2d 972, 352 N.Y.S.2d 224; CPLR 2104.
Contrary to Justice Bransten’s conclusion, neither Justice Heitler nor the Appellate Division addressed the issue of whether the stipulation of settlement should be set aside upon the ground that it violates plaintiffs’ First Amendment rights. Therefore, a necessary prerequisite for application of res judicata is here absent, and the Court should address plaintiffs’ constitutional arguments in view of the compelling public policy concerns raised by this appeal.
We contend that Columbia’s actions in the death of our son due to illegal
restraints converted a medical “error” into a medical “crime.” It is irrelevant that neither our lawyers nor Judge Heitler saw fit to acknowledge this and refer the case over to investigation in the Criminal Courts in a timely fashion.
Once again, in the issues now emerging regarding silence over the massive amount of criminal sex abuse by priests, the public is demanding with increasing success that the secret settlements (that were also sanctioned by the Courts and also silenced crimes) be set aside.
An attempt by “Contracts for Silence” to protect priests from exposure has been found to be unacceptable to the Public. They should be because they have helped perpetuate the problem.
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.
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.”
Here, similarly, since the settlement of the underlying action required plaintiffs silence about a crime, it should be set aside.
The Restatement of the Law of Contracts, Second, lists principles that must guide Courts when called upon to adjudicate issues that have a direct impact on the public good. Several sections of the Restatement speak to these points:
a. § 178. When a Term is Unenforceable on Grounds of Public Policy
(1). A promise or other term of an agreement is unenforceable on
grounds of public policy if legislation provides that is
unenforceable or the interest in its enforcement is clearly
outweighed in the circumstances by a public policy against
the enforcement of such terms [emphasis added].
b. § 179. Bases of Public Policies Against Enforcement.
A public policy against the enforcement of promises or other terms may
be derived by the court from
(a) legislation relevant to such a policy, or
(b) the need to protect some aspect of the public welfare [emphasis added]
c. § 184. When Rest of Agreement is Enforceable
(1) If less than all of an agreement is unenforceable under the rule
stated in § 178, a court may nevertheless enforce the rest of
the agreement in favor of a party who did not engage in
serious misconduct if the performance as to which the
agreement is unenforceable is not an essential part of the
agreed exchange.
It is contrary to the public good to enforce contracts for silence regarding medical malpractice, particularly when the nature of the malpractice involves breaking the law.
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.
The instant Contract for Silence is contrary to public policy. In addition, defendant Columbia should be required to pay agreed upon consideration as compensation for killing our son.
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].”
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.
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 75,000 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.
In the Matter of World Trade Center Bombing Litigation, 93 N.Y.2d 1, 686
N.Y.S.2d 743 (1999), the Steering Committee which represented plaintiffs who were affected by the 1993 bombing requested pubic disclosure of a group of classified documents arising from a 1984 study produced by the Port Authority’s Office of Special Planning (OSP). New York State held public hearings on the findings of this report.
However, not all documents were released and it was these that the Steering Committee sought. Their contention (at p. 10, 93 New York Reports, 2d Series) was that “Plaintiffs counter that a just adjudication, as they see it, of their negligence claims could also contribute to public safety more directly than any potential harm flowing from disclosure.” The Court agreed and the Port Authority appealed to the New York State Court of Appeals.
The high Court disagreed and held that the Port Authority, as a quasi- governmental agency, had the right to a “cone of silence” that permitted it to withhold from the public certain types of information deemed sensitive and confidential. As such, the matter wasreferred back to the initial Court to fashion an order to reveal certain of the information to the plaintiffs in a manner that would not be available to the public.
As events tragically proved, the Steering Committee’s perception of the matter may well have been correct and prophetic. For, and this is not to cast aspersions on the New York State Court of Appeals’ decision that seems juridically correct, the more information the public had about the risk to the World Trade Center, the better it would have been. The public does not know what was in the information withheld from it. Was there information that, were it to be widely known, would have sparked a vigorous public debate regarding the issues of dangerousness and safety in the Twin Towers?
There is a similarity to the question of Contracts for Silence in medical malpractice. Each signed contract removes from the public view information that can contribute to the safety of others. The suffering and loss of life due to medical malpractice dwarfs the numbers of those who died tragically in the World Trade Center. 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).
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.
The Introductory Note to the Restatement of the Contracts, Chapter 8 at page 2 states as follows:
In general, parties may contract as they wish, and courts will
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
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 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.
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. 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.
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.
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.”
Certainly non-disclosure contracts in medical malpractice 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.
We signed the General Release due to the fraudulent actions of Thomas R. Moore,
whose motive was, inter alia, to shield the Hospital from public blame regarding its actions which violated the New York State Health Law and led to the death of our son. His motive was also to illegally obtain for himself an amount of money to which he was not entitled by the provisions of the New York State Medical Malpractice Fee Schedule. This fraudulent lawyer claimed that portion of the contingency fee that he wanted to illegally withhold from his former co-counsel as well as the fee due to a third lawyer whom he had brought into the case unnecessarily.
Mr. Moore 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.
Subsequently, our lawyer refused to communicate with us further. When his former co-counsel moved the Court for his share of the settlement that Mr. Moore was denying, we soon realized that we too had been defrauded by him. This initiated our original attempt to vacate the General Release.
We now appeal Judge Bransten’s ruling that we cannot vacate the portion of theGeneral Release pledging our silence. This pledge, obtained fraudulently and deceitfully, is legally and morally wrong for all the reasons outlined above.
In her Reply Affirmation In Support Of Motion For Dismissal Of Action (paragraph “11”, p.8), the Hospital’s lawyer put the matter succinctly: “plaintiffs’ choice is to speak and forfeit the settlement money or maintain confidentiality and get the money.”
To us, this is analogous to telling the survivors of the Holocaust that they can be paid reparation money only if they pledge silence as to what happened to their loved ones. Such a bargain would be morally repugnant.
Of course, those multiple physicians, physician trainees, nurses and aides whose actions led to our son’s death cannot be considered comparable to the perpetrators of the Holocaust. Yet, 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.
The New York State Appellate 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.
“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.
In response to what amounts to a major national healthcare crisis, the Joint Commission 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.
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.
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 publicpolicy of New York State.
In summary, the settlement of malpractice cases 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.
CONCLUSION
FOR THE FOREGOING REASONS, THE ORDER
APPEALED FROM SHOULD BE REVERSED;
DEFENDANT’S MOTION DENIED; AND THE
COMPLAINT REINSTATED
Dated: New York, New York
January 2, 2003
Respectfully submitted,
RALPH H. SPEKEN, M.D.
STEPHANIE Z. SPEKEN, M.S.
Plaintiffs-Appellants Pro Se
81 Pondfield Rd #179
Bronxville, New York 10708