Oral Argument – In Defense of the First Amendment

A Death in the Hospital /Oral Argument – In Defense of the First Amendment



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7         INDEX NUMBER:
           113895 01

8         – against-





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11                         60 Centre Street
                                                      New York, New York
12                                                  November 20, 2001




                           HONORABLE EILEEN BRANSTEN, Justice




        Plaintiff Ralph Speken, Pro Se,
17             Plaintiff Stephanie Speken, Pro Se

                Attorneys for the Defendant
19            116 John Street
                New York, New York


                                                         MITCHELL SIEGEL
23                                                    OFFICIAL COURT REPORTER

2             THE COURT: All right.

3             MR. SPEKEN: Laura R. Shapiro,

4             McAloon & Friedman,

5             MR. SPEKEN: Ralph Speken.

6             MRS. SPEKEN: Stephanie Speken.

7             THE COURT: All right.

8             This matter is before this Court

9             by motion, motion brought by Columbia

10            Presbyterian Medical Center, for motion to

11            dismiss the complaint.

12            There are a number of different

13            reasons, but I am going to allow Ms. Shapiro

14            to put her reasons for the motion on the

15            record, and then Dr. Speken you will have a

16            chance to respond.

17            Before we do that, let see if I

18            have all the papers here.

19            I do have Columbia Presbyterian’s

20            papers, reply by Dr. Speken and Stephanie

21            Speken, but let me double-check something

22            here. The reply indeed has been notarized,

23            so it is an affidavit.

24            And then I have a reply

25            affirmation on the part of Ms. Shapiro.

26            So those are the papers I do have

2             before me.

3             I believe Dr. Speken asked for the

4             record so — so obviously we do have the

5             records for Dr. Speken.

6             MR. SPEKEN: I sent in a surreply

7             also.

8             THE COURT: Nothing is ever —

9             MR. SPEKEN: All right.

10            THE COURT: Because then, of

11            course, there will be a suranswer and that

12            will not happen.

13            MR. SPEKEN: All right.

14            THE COURT: Ms. Shapiro, can you

15            please — why don’t you place on the record

16            the reasons for your motion to dismiss Dr.

17            Speken’s case.

18            MS. SHAPIRO: All right.

19            There was an underlying action for

20            medical malpractice brought by these same

21            Plaintiffs focusing upon the care and

22            treatment to their son that ended in his

23            death.

24            THE COURT: All right.

25            MS. SHAPIRO: They instituted a

26            lawsuit, there were numerous court

2             appearances before Judge Heitler, and on the

3             eve of trial, the case was settled.

4                  The settlement was a two part

5             settlement. The money aspect of the

6             settlement was that my client, Columbia

7             Presbyterian, would pay the Spekens

8             $500,000.

9                  On their part, they agreed to

10            confidentiality, specifically, to cease and

11            desist from a website called the

12            WWW.MED-MALPRACTICE.COM that they had

13            initiated for the purpose at the time

14            of disseminating information about their

15            claim, about the treatment rendered to

16            their son, about the specific doctors

17            involved.

18                 It was a lengthy website and

19            specified in the settlement agreement was

20            that there would be a confidentiality

21            agreement provision, and the website would

22            be taken down.

23                 The Spekens were present in court

24            when this case settled. They testified

25            under oath that they understood the terms of

26            the settlement, which were clear and

2             unequivocal that the settlement would be

3             confidential, the facts of the case would be

4             kept confidential, and that the website

5             would be taken down.

6                  Indeed, the website was taken down

              for a period of months. However, it was

8             then resurrected and it stands resurrected

9             today.

10                  Now several months after this

11             settlement, the Spekens moved to vacate the

12             settlement agreement and release, Judge

13             Heitler issued a lengthy decision denying

14             that motion.

15                  The Spekens appealed it to the

16             Appellate Division. The denial was

17             affirmed, the settlement hence was valid,

18             upheld, with all of its terms including the

19             clear confidentiality provision.

20                  Nonetheless, the website remains.

21                  Now, your Honor, the Spekens have

22             instituted a second lawsuit against the same

23             Defendant with two causes of action.

24                  The first cause of action is to

25             vacate that portion of the settlement

26             agreement that provided for confidentiality,

2             and specifically, the removal of the website

3             on the grounds they claim, your Honor, that

4             the death of their son was a criminal act,

5             and that they can’t be silenced for criminal

6             conduct.

7                  Their second cause of action is

8             that the public needs to know about the

9             treatment that their son received and

10            therefore, they can’t be silenced on that

11            ground.

12                 So the essence of their claim,

13            your Honor, is that they say they can’t be

14            silenced even though they agreed to be

15            silenced.

16                 These are educated people, they

17            agreed of their own free will. They already

18            tried to argue before Judge Heitler that

19            they were coerced into settling the case,

20            and that argument fell flat. They already

21            argued that their silence was illegal, the

22            same argument that they are making here,

23            however, they claim that because Judge

24            Heitler in her lengthy decision did not

25            specifically address their claim that their

26            silence can’t be procured because of

2             illegality, that they are then entitled to

3             start this second lawsuit.

4                  The law doesn’t permit a second

5             lawsuit. The settlement agreement and

6             release has been upheld by this Court and by

7             the Appellate Division.

8                  All of the issues pertaining to

9             it have already litigated. If the Spekens

10            were unhappy because of the lack of

11            inclusion of any specific language in Judge

12            Heitler’S decision, the remedy was to go

13            back to Judge Heitler on a motion to reargue

14            or renew, saying perhaps, Judge, you missed

15            this or forgot it.

16                 But the remedy is certainly not to

17            violate the rules of res judicata and simply

18            institute another lawsuit.

19                 What has happened here, there is

20            now another lawsuit that is just trying to

21            undue the first lawsuit. They want the

22            money and to be able to speak about it,

23            although they agreed to have the money only

24            if they kept it confidential.

25                 So, this is a pre-action

26            motion which says res judicata prohibits

2             this lawsuit in whatever form it takes.

3                  It is still a lawsuit that

4             speaks to the settlement made in an

5             underlying case that has been adjudicated

6             and that is over.

7                  Thank you.

8                  THE COURT: All right.

9                  Who is going to be speaking for

10            you doctor or Mrs. Speken?

11                 MR. SPEKEN: I will speak, your

12            Honor.

13                 THE COURT: All right.

14            Please address the issues in hand

15            which is res judicata whether or not indeed

16            the settlement that was entered into in the

17            other case did not cover this settlement —

18            did not cover the matter that you brought in

19            this lawsuit.

20                 MR. SPEKEN: All right.

21                 Your Honor, I am not a lawyer.

22                 THE COURT: All right.

23                 MR. SPEKEN: I don’t want —

24                 THE COURT: You were represented

25            by an attorney?

26                 MR. SPEKEN: I was represented.

2             At this time I am pro se. I am not a

3             lawyer. I can read. And I have read about

4             the concept of res judicata, collateral

5             estoppel.

6                  And my reading has shown me that

7             there are limits placed on that concept and

8             I have outlined these in the papers that we

9             have put together.

10                 THE COURT: All right.

11                 MR. SPEKEN: Ms. Shapiro brings up

12            important issues, important questions about

13            our position. And I would like to respond

14            to those questions.

15                 In terms of the action before

16            Judge Heitler, we indeed, your Honor, sadly

17            signed the general release.

18                 THE COURT: Also allocuted on the

19            record on it, right?

20                 MR. SPEKEN: Well let me expand on

21            that.

22                 We indeed signed that release.

23            And we have an extensive motion both to

24            Judge Heitler as well as to the appellate

25            court that explained how we were coerced

26            into signing that

2                  THE COURT: However, both Judge

3             Heitler and the Appellate Court found that

4             that explanation was not a valid one, they

5             did not rescind the signing, the signature

6             of that particular release document, nor did

7             that eradicate the statements that you made

8             on the record.

9                  And they found, in fact, that the

10            agreement was valid, you were represented by

11            proper counsel, you were given all your

12            rights and you said that you did understand

13            it at the time you entered into such an

14            agreement.

15                 So that is what — in the first

16            place Judge Heitler found and affirmed by

17            the Appellate Division.

18                 MR. SPEKEN: What the Appellate

19            Division said was that there was no basis

20            for overturning a contract after full

21            allocution by the Court below.

22                 That is what our current case is

23            all about. In fact, there was no full

24            allocution by the Court below. There is a

25            sharp issue in this case which was not

26            allocuted by the Court below.

2                  And that sharp issue, your Honor,

3             is that our boy Seth side because a law was

4             broken.

5                  We raised that on our papers with

6             Judge Heitler. And in those few times we

7             met with her, we specifically said these

8             things to her.

9                  Now at this time your Honor, your

10            Honor, we were much more naive about the law

11            than we are now. We were represented by

12            counsel.

13                 In fact, we told our counsel the

14            same thing. Our boy died because a law was

15            broken.

16                 We asked our counsel, Mr. Frank

17            and Mr. Moore, Thomas R. Moore, we asked,

18            and the former lawyer, we asked them to

19            bring this issue to Judge Sklar, and the

20            response to us, no, no, this was just very

21            bad malpractice.

22                 We are now much more knowledgeable

23            about the law, about the issues, we

24            recognize there is a sharp issue. Our boy

25            died because a law was broken.

26                 THE COURT: If indeed Dr. Speken,

2             a law was broken, and statute of limitations

3             has not run, then obviously the place to go

4             is to the District Attorney in New York

5             County and present the case to the District

6             Attorney and indeed, if they agree with you,

7             they can institute a criminal action where

8             they would seek a criminal penalty against

9             somebody who broke the

10            law.

11                 But, what you are doing here, Mr.

12            Speken, as far as I can see in terms of

13            these papers, is not — you are saying that

14            a law has been broken and therefore, I am

15            not to be bound by the confidentiality

16            agreement.

17                 Entirely different from your

18            freedom to go to the District Attorney’s

19            Office, the District Attorney, Robert

20            Morganthau, and tell him that you believe a

21            law has been broken, and if he agrees with

22            you, under his prosecutoral discretion, he

23            can bring along a criminal action.

24                 But you cannot even if that

25            happens, undue what has already been done

26            which is that in return for a substantial

2             sum of money you settled the case with the

3             understanding that you as part and parcel of

4             that bargain, two sided bargain, they would

5             pay you half a million dollars, and your

6             part of the bargain you would stop and

7             forego your website.

8                  And also any other publicity. You

9             would keep the settlement confidential.

10            That has nothing to do with

11            whether or not you believe there has been

12            laws broken, laws of the State of New York,

13            the Penal Code of the State of New York

14            broken.

15                 If indeed you believe that has

16            happened, then your remedy and your recourse

17            is to the person who prosecutes the laws of

18            the State of New York and the Penal Code.

19            That is the District Attorney of the County

20            of New York.

21                 MR. SPEKEN: All right.

22                 THE COURT: That is where your

23            remedy is. And if he agrees or if he does

24            or does not agree, you certainly could

25            present your case there.

26                 But I cannot tell you if he agrees

2             or doesn’t agree. He has, as you know —

3             maybe you don’t know — but the District

4             Attorney in any of our counties, has what is

5            called prosecutoral discretion, and he may

6             or may not agree with your belief that a

7             crime has been — that a criminal act has

8             occurred, and he may or may not agree

9             with you that the Penal Law has been

10            violated, and he may or may not agree to

11            prosecute.

12                 But that has nothing to do with

13            this particular Court nor this lawsuit which

14            seeks to undue that portion of an agreement

15            that was entered into in open court and that

16            was litigated not only before Judge Heitler

17            in your motion to have that portion of the

18            agreement severed so that you can continue

19            your website, and that was certainly — that

20            was denied, Judge Heitler’s decision denying

21            you this right because you have indeed —

22            you indeed entered into an agreement, and

23            that was affirmed by the Appellate Division

24            in the First Department.

25                 And so that is where we stand.

26                 MR. SPEKEN:  All right.

2                  It is an interesting situation.

3             In response to this we went twice to the

4             District Attorney and here is what we were

5             told.

6                  We were told that were the

7             District Attorney’s Office to become — to

8             get involved with the extent and the range

9             of malpractices going on in the hospitals in

10            New York City, that they would have to add

11            five new District Attorney’s Offices just to

12            cover this matter, one for each borough.

13                 We tried twice to bring this

14            before the District Attorney.

15                 THE COURT: All right.

16                 MR. SPEKEN: Issue 1.

17                 Issue 2, your Honor, as I said,

18            there is a sharp issue.

19                 The law was broken, Seth died.

20            This has been basically supported by the

21            opinion of the Medical Examiner as well as

22            the Health Department that reviewed the

23            case.

24                 They did not say in either case

25            there was a crime committed. Yet both the

26            Medical Examiner and the New York State

2             Health Department, their review, when you

3             read their words, the implication, the

4             analysis is yes, he died because this law

5             was broken.

6                  The Medical Examiner said death

7             was due to immobilization, immobilized,

8             restrained, and the long opinion of the

9             New York State Health Department said death

10            was due to pulmonary emboli due to the

11            restraining.

12                 They did not say in the report, by

13            the way, that restraining is in violation of

14            the law passed by the legislature and now as

15            a matter of fact, passed by the Congress of

16            the United States. They did not say that.

17                 A person who can read the

18            conclusion, yes, he died because this law

19            was broken.

20                 Now the New York State Health

21            Department attempts to disqualify it by

22            stating the death was unforeseeable. But

23            essentially, what they are doing is what is

24            called the thin skull defense.

25                 They said that well yes, he died

26            from the restraints, but a normal person

2             shouldn’t die from situations like this.

3             That is the thin skull defense.

4                  So essentially, both the Medical

5             Examiner and the New York State Health

6             Department said death was due to the law

7             being broken.

8                  THE COURT: Okay.

9                  MR. SPEKEN: The third point, and

10            I will finish, since the Courts as well as

11            the other bodies of our culture, have lagged

12            behind now where medicine has now arrived at

13            the point in which the highest crediting

14            body says no more contracts for silence, no

15            more silence about malpractice.

16                 Since the Courts and our various

17            legal and political bodies have not arrived

18            at that point, our only recourse to say

19            listen, I am sorry what harm you did to my

20            boy, our boy, Columbia Presbyterian is a

21            great institution, for everyone they kill,

22            perhaps they save thousands. But they

23            killed my boy. They didn’t mean to do it,

24            but it happened. We are not going to be

25            quiet about it.

26                 THE COURT: You settled this

2             MR. SPEKEN: We didn’t settle.

3                  THE COURT: I will have to make a

4             decision.

5                  MR. SPEKEN: We were coerced into

6             signing, a sharp issue was ignored, public

7             policy demands we set —

8                  THE COURT: What I am going to do

9             is obviously read these papers, these

10            motions are submitted.

11                 Thank you very much. I wish

12            everybody a happy Thanksgiving.

13                 MR. SPEKEN: Thank you, your

14            Honor.

15                 MS. SHAPIRO: Thank you.

16                 THE COURT: Okay.

                           CERTIFIED TO BE A TRUE
                           AND CORRECT TRANSCRIPT
                           MITCHELL SIEGEL
                           OFFICIAL COURT REPORTER