On April 10,
2003, oral argument was held before 5 Judges of the New York State
Appellate Court, First Department, Manhattan. Mr. Timothy O’Shaughnessy
argued the case for Columbia Presbyterian Hospital. I argued our case.
The core of our
argument is that Seth’s death was due to the breaking of New York State
Mental Health Law §33.04 and as such, no silence could be given to the
Hospital in consideration for their payment of money to us. It is a
well-decided principle of Law that silence about a crime cannot be
I spoke first.
"May it please the Court," I started. "Doctors have
convinced themselves and have convinced the Courts that when mishaps
occur, they are all accidents. As such, compensation of victims is all
that is warranted. And more often than not, this compensation must be
coupled with Silence on the part of the victim."
I continued. "This is seen very differently in Germany where there
the Courts are much more involved in medical regulation than in the United
States. In Germany, there are detailed medical legal laws and regulations
where the Criminal Law is used to protect human life. For example, if
Informed Consent in not strictly adhered to and a patient is injured,
doctors can and do go to prison."
Justice Ellerin cut
me off with a question (which was also a statement). "Is it not true
that you signed the settlement?" she asked.
was that we did, but that we did so only under coercion and fraud. I
proceeded to lay out our argument that we should be given the money
Columbia had agreed to pay us in the coerced settlement but that the Court
should vacate the portion of the contract that offered our silence about
what they did to our son.
interrupted again asking, "What punishment was given the
This question was
directed to Mr. O'Shaughnessy. He didn’t know. The fact is that no
punishment was given. The only response of the New York State Health
Department was a statement that the Hospital was being "cited."
What did that mean? It meant nothing. The New York State Health Department’s
response was a cover up of the fact that Seth died because Columbia
Presbyterian Hospital broke the Law. (The then New York State Health
Department Commissioner was later to later resign and receive a very
highly paid position as an administrator of Columbia Presbyterian
There was a brief
colloquy between Justice Ellerin and Mr. O’Shaughnessy. She questioned
him about the Mental Health Law and enforcement. He wasn’t knowledgable
about this subject. In fact, there was no "enforcement."
chose not to make detailed remarks regarding the Hospital’s position. I
was permitted to give the final argument.
My comments were
brief. "There is a sharp issue here, your
Honors" I concluded. "Is Silence regarding the breaking of the
Law impermissible except in the situation where the Law is broken by
We await the decision of the Court.