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 pledged.
          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.
           My response 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.
          Justice Ellerin interrupted again asking, "What punishment was given the Hospital?"
          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 Hospital).
          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."
          Mr. O’Shaughnessy 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 doctors?"

We await the decision of the Court.

 

 

 

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